CHAPTER I
INTRODUCTION
A. Definitions and Terms
Counseling - is the art of giving advice and information on a particular problem or
hypothesis including the adoption of a course of action to be taken for the solution
thereof.
Legal Counseling - Is the art of giving advice and information concerning the solution
of a legal problem arising from a given state of facts and the adoption of appropriate
reliefs or remedies under the law for the satisfaction and enforcement of a legal
obligation before a judicial or quasi- judicial body.
Court of Justice - is a judicial body or tribunal created by law vested with jurisdiction
or power to hear and adjudicate litigious conflicts and to award proper reliefs and
render judgments based up the evidence presented.
Quasi-judicial body - is an administrative body or agency belonging to the executive
branch of the government vested with jurisdiction to hear and adjudicate non litigious
cases brought before it by disputing parties and empowered to enforce its judgments
and orders like a court of law and to punish for contempt.
Administrative body or agency - is an instrumentality of the executive branch of the
government vested by law with jurisdiction to settle and adjudicate controversy
arising from the interpretation, application and enforcement of laws or administrative
rule or regulation.
Arbitration - is the process of extrajudicial settlement of controversies in the
administrative level before an arbitrator thru the voluntary will of the parties arising
from the violation of law, administrative rule or regulation.
Conciliation - is the extrajudicial process of settling disputes thru the voluntary
submission of the parties before the Barangay Lupon or other administrative body or
agency, usually arriving at a compromise agreement which serves as basis of a court
judgment or as a condition precedent to vest jurisdiction to a court of law.
Compromise agreement - is a mutual agreement or understanding usually reduced into
writing entered into and executed by the parties litigants whether judicially or
extrajudicially which serves as basis for a court judgment.
B. Legal counseling as essential component of lawyering
There is no gainsaying the fact that, as human relations become more sophisticated
and transactional matters multiply by leaps and bounds, the intervention of a third
impersonal party who is trained in law, when there appears to be no light at the end of
the tunnel for conciliation, becomes indispensable. Rather than risk his lifetime
accumulations inside a multi-devious packed court proceeding, with attendant stress,
serious anxiety, mortal torture and anguish of a full-blown litigation, a wise and
prudent person who is confronted with a legal problem, would not hesitate to run to a
lawyer worth his salt to act as a negotiator, an honest arbitrator who deserves his full
trust and confidence.
There are pro-bono members of the legal profession whose sole capital is his brain
and holding office in a dingy corner of the town, who are willing to accept a case on a
contingent basis, but whose honest and well-studied performance before an impartial
sifter of evidence, can demolish the arguments of a well-placed abogado de
campanilla whose office rental ranges from one to two million pesos per month in a
posh law office at Ayala Avenue.
However, before one decides to immerse into a protracted court litigation, a citizen
who is confronted with a legal problem, should not be timid to first consult a
well-meaning lawyer even if he is only holding office inside his modest residence, to
break the ice with his opponent, and exhaust all avenues for amicable settlement. It is
only when all avenues for conciliation have been resorted to but failed, that one is left
with no recourse but to go to court. This is so because we live under the government
of laws and not of men. Gone were the days when might is right and the mighty is the
law. A lawyer who advises his client to bring his problem at once to court without
undergoing the mediation process, is not a good lawyer. Perhaps, he is only after his
client’s purse unmindful of finding a better and less expensive solution to his clients
problem.
Hence, the need of persons who are skilled in law to represent potential litigants in
court. For while it may be true that it is every citizen’s constitutional right to gain
access to courts, yet not all citizens of this country are privileged to appear or defend
their cause before courts of superior jurisdiction. Only those who have been admitted
by the Supreme Court to the practice of law after finishing the four-year course from a
recognized law college where Legal Counseling is taught, can he be allowed to appear
before superior courts and quasi-judicial agencies of the government, or before
collegiate courts of superior jurisdiction. And even in inferior courts, only persons of
proven probity and ability to prosecute his case and present evidence according to the
Rules of Court, may be allowed to appear and practice before them.
C. Importance of lawyers in society
In ancient times more particularly before Christ’s resurrection when Christ was on
earth and teaching in the Synagogue by the medium of parables, lawyers have already
played an important role in the conduct of human relations. It is said that when St.
Paul was in prison, he wrote his friend Titus to bring him a lawyer. During Christ’s
crucifixion, there were two prominent men in Jerusalem who came forward to claim
the body of our Lord, namely, Joseph of Arimathea and Nicodemus, in order to give
him a decent burial. Both were lawyers by profession who used to appear and practice
law before the Sanhedrin before which the fate of our Lord was heard and debated
angrily. According to the accounts of Kenneth Redden, two canonized Saints, St. Ives
of Britanny and St. Fidelis of Suabia, used to defend the poor and the destitute in
Roman tribunals. Both were lawyers by profession and were known to be “advocates
of the poor.”
We have a diverse society composed of men and women of multifarious calling and
vocations each specializing in his own field of endeavor. We need a doctor of
medicine for example to treat our ailments, an architect to design and make beautiful
plans for our houses and buildings, engineers to construct our bridges and gigantic
structures, and a priest to listen to our confession and grant absolution for our sins.
But all of them are helpless when it comes to solving their legal problems.
A physician who is charged with abortion or negligence in the performance of his
duty, needs the services of a lawyer to defend him in court. Engineers and architects
need lawyers to draft a building contract which will absolve or at least minimize his
liability for damages for breach of contract, or in case of failure to comply with the
terms and conditions of their contracts. And a priest who acts in persona Christi
inside the confessional and is empowered by virtue of his vow and effectuate his
ordination which is loaded with holy orders to condone the sins of a penitent, will run
to a lawyer when in distress for having solemnized an illegal marriage or for having
committed a crime against chastity.
It has been aptly said that a community cannot endure without order and that order
cannot be attained without laws to govern the conduct of individuals. But laws can be
interpreted only by judges, and judges must first be lawyers. Thus, ultimately,
government of laws is in effect a government of lawyers.
Under a kind of governance where everybody is equal before the eyes of the law, the
services of a lawyer are second to none. The complexity of his functions places him in
peculiar situations of influence in his continuous contact with a great variety of people
and interests. His advice and his assistance are sought by the wealthy and the poor,
strong and weak, honest and dishonest, men and women of all professions and
persuasions and every class of society. Fortunes, lives and temporal happiness of
citizens are freely entrusted into his hands. Litigants look up to him with confidence
and hope. Courts and judges place great reliance on his words and actions. Certainly,
lawyers are perpetually engaged in trying to anticipate, prevent, mediate, settle or win
human disagreements involving alleged rights recognized at law.
D. Law practice without legal ethics is quackery
Legal Ethics is defined as that branch of moral science which treats of the duties. A
lawyer whose ulterior purpose is money-making belongs to the species of shysters and
ambulance chasers, or at least a bad egg whose name does not deserve to appear in the
Roll of Attorney’s. Instead of upholding the dignity and integrity of the Bar, these
bunch of shysters tend to demean the noble profession and reduce it to the level of a
mere sidewalk vendor who peddles his wares in the streets, mindless of what his
mercenary acts will wrought untold disgrace to his lawyer’s oath.
“A lawyer should endeavor to obtain full knowledge of his client’s cause before
advising thereon, and he is bound to give a candid opinion of the merits and probable
result on the other hand, "nothing operates more certainly to create or to foster
popular prejudice against lawyers as a class, and to deprive the profession of that full
measure of public esteem and confidence which belongs to the proper discharge of his
self-imposed duties than does the false claim, often set up by the unscrupulous in
defense of questionable transactions, that it is the duty of the lawyer(s) to do whatever
may enable him to succeed in winning his client's cause.
"It is improper for a lawyer to assert in argument his personal belief in his client's
innocence or in the justice of his cause." How many of these members of the
Philippine Bar and self-proclaimed paragon of innocence to the extent of bragging or
flaunting his high poll survey record in the media, and perjured crowd of uninformed
citizens who are easily lured by cheap sardines and coffee sachets, swearing before
them that he is not the owner of a vast hacienda with air-conditioned piggery and posh
mansions inside a 350 hectare estate allegedly belonging to a dummy who cannot
present a single evidence of title in his name? In brief, a lawyer who is a politician
should not smear the legal profession with his political propaganda and premature
campaigning for his 2016 Presidential ambitions order to bolster his personal
aggrandizement.
Furthermore, the lawyer owes "entire devotion to the interest of his client, warm zeal
in the maintenance and defense of his rights and the exertion of his utmost learning
and ability," to the end that nothing be taken or be withheld from him, save by the
rules of the law, legally applied. No fear of judicial disfavor or public unpopularity
should restrain him from the full discharge of his duty. In the judicial forum the client
is entitled to the benefit of any and every remedy and defense that is authorized by the
law of the land, and he may expect his lawyer to assert every such remedy or defense.
But it is steadfastly to be borne in mind that the great trust of the lawyer is to be
performed within and not without the bounds of the law. The office of attorney does
not permit, much less does it demand of him for any client, violation of law or any
manner of fraud or chicanery. He must obey his own conscience and not that of his
client. (Canons of Professional Ethics)
Needless for us to disagree that as life on earth has multiplied a million-fold and has
become more complex, legal problems of humanity have likewise mushroomed
tremendously. Hence, the demand for more lawyers turned acute. Anyway, there is no
truth to the statement that we have an oversupply of lawyers in this country: truth is
that, only few outstanding and dyed-in-the-wo attorneys-at-law are engaged in active
law practice. majority of the rank and file members of the bar,are either employed in
the government or private sector, or settle a less challenging job of researcher in a big
law firm or devote their time in private business. Nevertheless, whether it is by choice
or by accident, the lawyer still occupies a position of leadership in any field of
endeavor, whether as a politician in Congress or in corporate holdings, in banking and
in almost every agency or instrumentality of the government, the lawyer always hugs
the limelight and sits at the helm. In fact, the only branch of our government, the
judiciary, has by and large been consigned to the exclusive patronage of lawyers. This
is so because one cannot be appointed to the bench unless he must first be a lawyer.
E. What is considered practice of law?
There is no hard and fast criterion as to what practice of law connotes.
In People vs. Villanueva, GR No. L-19450, May 27, 1965; 14 SCRA 109, the Supreme
Court, however, ruled that, "law practice is more than an isolated appearance, for it
consists of frequent and customary actions, a succession of acts of the same kind. One
is said to be engaged in the practice of law if he is customarily or habitually holding
himself out to the public as a lawyer, and demanding payment for such service. The
appearance as counsel on one occasion, is not conclusive as determinative of
engagement in the private practice of law. Preparing documents and rendering legal
services are within the term practice of law."
Nevertheless, the occasional drafting of simple deeds and other instruments when not
conducted as an occupation, has been held not to constitute the practice of law.
Nonetheless, practice of law is not limited to the conduct of cases in court. It includes
the preparation of pleadings and other papers incident to actions and special
proceedings, the drawing of deeds and other instruments and conveyancing (Howton
vs. Morrow).
One who confers with clients, advises them as to legal rights and then takes the
business to an attorney and asks the latter to look after the case in court, is in the
practice of law. Rendering an opinion as to the proper interpretation of a statute and
receiving pay for it, is to that extent, considered practice of law.
On the other hand, the gratuitous furnishing of legal aid to the poor and unfortunates
who are in pursuit of any civil remedy, as a matter of charity, does not constitute
practice of law. The search for records of realty to ascertain what they may disclose
without giving any opinion or advice as to the legal effects of what may be found
therefrom, does not constitute the practice of law. Also an ordinary preparation and
drafting of legal instruments which involves the determination by a trained legal mind
of the legal effects of facts and conditions, or whenever such acts involved the use of
skill and intellect by a legal mind trained and schooled in a legal school of learning,
constitutes practice of law. But if such work involves only the clerical labor of filling
the blanks on stereotyped form or a mere mechanical act of copying from a file copy
or finished document, which involves no legal thing, is not considered legal practice
(Martin) (Am. Jurisprudence 262).
It is not purposeless to know whether an act constitutes practice of law or not, in order
to determine whether the performance of such act, a lawyer and client relationship has
been established, hence, whether he is entitled to collect fees for his services. It may
also serve as basis for filing an action for usurpation of official functions against one,
who not being a member of the bar duly licensed to practice law by the Supreme
Court, represents himself as a lawyer to the public and performs acts pertaining to a
lawyer by means of deception to the prejudice of the bar and the public.
In another light, it is the humble submission of this author that, where someone who
has acquired sufficient knowledge through self-study or for having gained experience
as an apprentice or office helper in a law office or private office of some law
undergraduate or of a notary public who has been extended a notarial commission by
the proper government agency, and in the process he was able to learn the rudiments
of drafting of documents and legal contracts containing stipulations and terms in
accordance with law, using as his guide a book on legal forms and conveyancing
written by a lawyer or legal writer, and collects reasonable fees for his services - this
to a certain extent is allowable although not considered practice of law.
There is more to law practice however, than just mere opening and developing a law
office and winning office cases. In the conduct of lawyering an officer of the court
must always be guided by a sense of professional responsibility. An advocate of the
law therefore, must be equipped with a vast knowledge in psychology, an expert on
human relations, a skillful arbitrator at the bargaining table, although as a matter of
fact, not all lawyers are gifted with such expertise and skill, an actor if you will, and
above all a man of integrity whose word commands respect and authority not only
from his clients, but also from his client's adversaries in order to be an effective
counselor at law. (Although as a matter of fact, there are lawyers turned into
politicians who are wanting in integrity, and are themselves violators of the law they
have sponsored in Congress, and most of them in fact, are involved in graft and
corruption, with a good number of them having pending cases before the Ombudsman
and Sandiganbayan for alleged violation of R.A. No. 3019) These bunch of lawyers
are considered bad eggs of the legal profession and ought to be purged from the Roll
of Attorneys in the Supreme Court.
F. When not to accept a case
One cardinal advice to the lawyer by the way is: "Don’t take a case unless you believe
in it. This advice may seem at first blush ill-advised, impractical and thoughtless,
when the new lawyer who spent all of his time studying up to the bar examinations, in
spending spree with not a single centavo for earning, needs cases and is faced with
increasing expenses; but in the long run, this advice which requires enormous
patience, produces dividends in the building of a good reputation and a successful
practice.
Of course, this does not involve one's belief as to whether or not a client is guilty,
since you still have the duty to see to it that he is given the full benefits of the law and
all the legal defenses he is entitled to. But if the client has really no cause of action or
defense at all, but merely seeks your legal services to delay and buy time, to obstruct
justice and harass the court or the adverse party you ought to know this as a
counselor-at-law, then you should not accept the case. Likewise, do not accept a case
the ground solely that it has "nuisance value" for purposes of settlement, for this
would demean your stature and reputation.
On the other hand, if you believe that a case is a worthy cause, though unpopular or
difficult it may be, then do the best you can, for the lawyer is bound to protect the
rights of his client the best he can.
A different dictum however should be observed when one is appointed as attorney de
oficio in a criminal proceeding. For once the lawyer is appointed by the court to assist
an accused in his defense, the right to refuse an employment that is allowable in a
civil case, cannot apply, because as an officer of the court a lawyer cannot disobey a
lawful order of the court, much less refuse to defend a defenseless defendant on pains
of being punished for contempt of court.
Extent of the lawyer's authority and advice
The canons of professional responsibility and accepted norms in legal advocacy
recognize the lawyer's authority to choose the proceedings he will institute on behalf
of his client, as well as the witnesses he will present in court. He can make admissions
of fact but not of law (Dick vs. U.S., 70 ALR 90: 5 Am. Jur. 316). But even with
respect to making admissions of facts, this requires the execution of a special
authority (special power of attorney) by the client to make valid stipulations of fact
upon which the court shall base its judgment.
But whether or not the lawyer should advise his client to submit to arbitration or
compromise agreement, will depend on the lawyer's honest and sound judgment
subject to the client's final word. The better judgment is towards advising the client to
submit to amicable settlement, when in the lawyer's honest and well-studied opinion
in the light of the evidence on hand, the prospect of success in a court battle is slim.
Much of this judgment will depend on the lawyer's knowledge of our procedural laws
and jurisprudence. Because even if he is knowledgeable in the substantive provisions
of the law involved after a thorough evaluation of the attending facts and attendant
circumstances, if he take a wrong step or erroneous choice of action or theory to
commence an initiatory pleading, his case is already doomed even before he starts to
draft the initiatory pleading.
Be it also remembered that a lawyer has control only with respect to the procedural
aspect of the case. The final decision on whether to litigate or not, or to enter into a
compromise agreement or not or whether to take an appeal, should come from the
client. But even in the matter of whether or not to litigate at all or whether or to enter
a plea of guilty or not in a criminal case, or to prosecute malicious suit or to pursue an
illegal course of action, the lawyer should not allow himself to be dictated by the
client simply because the latter can afford to pay him the highest fees. He must be
frank with his client in explaining that his case will not prosper in court and be ready
to substantiate his opinion on this matter based on his legal knowledge and
experience.
Thus, it has been held that admissions in pleadings though made by the attorney
without the knowledge of the client, can nevertheless be used against him, and cannot
heard to deny that they were authorized (Talens vs. Chuakay and Co., G.R. L-10127,
June 30. 1958; Martin, Legal and Judicial Ethics, p. 111). The lawyer has implied
authority to enter or take dismissal, discontinuance or non-suit, which does not bar the
bringing of another suit on the same cause of action ( C.J.S. 908).
Inversely, parties-litigants are bound by the mistakes committed by their lawyers in
matters of procedure. Thus, mistakes by a lawyer as to the competency of a witness,
or the sufficiency, or whether a certain evidence is relevant or not, or whether a
defense he had chosen is proper or not, in the introduction of certain evidence or
witnesses, or in argumentation of what pleading to file in court or what theory should
be adopted, are all mistakes of procedure and they bind the client (Isaac vs. Mendoza,
89 Phil. 279), except for honest mistakes.
These mistakes cannot be utilized as grounds for new trial unless it is shown that the
incompetency of counsel is so serious that his client is prejudiced and was prevented
from fairly presenting his case (Bosque vs. Lanzaderas, CA, G.R. 3737, Feb. 28,
1951.). This of course is without prejudice on the part of the client to proceed against
the lawyer in damages or administratively on the ground of misconduct (Isaac vs.
Mendoza, supra).
However, an attorney cannot bind his client by entering into an agreement
compromising and settling the rights of the client without special authorization
(special power of attorney). Neither can he release a security, nor extend the time of
payment, release a guarantor or accept an uncertified check without his client's
consent. And while it is true that the client can sue his counsel for damages and for
recovery of whatever losses he has incurred by reason of his lawyer's negligence, the
lawyer cannot proceed against his client with respect to the losses he may incur by
reason of his client's fault or negligence it being considered damnum absque injuria,
(or that kind of loss or injury which does not give rise to an action for damages
against the person causing it; a or injury in the legal sense; that is without such
breach of duty as is redressible by legal action).
Villaflores vs. Limos
SCRA140
FACTS: This refers to an administrative complaint for disbarment filed by
complainant Virginia Villaflores against Atty. Sinamar Limos on the ground of
culpable negligence and violation of Rule 18.03 of the Code of Professional
Responsibility which provides that. "A lawyer shall not neglect a Iegal matter
entrusted to him, and his negligence in connection therewith shall render him liable."
Complainant Villaflores approached respondent Atty. Limos to file on her behalf the
required appellant's brief. Since respondent agreed to handle the appeal, complainant
handed to respondent the amount of P10,000.00 as partial payment of the latte's
acceptance fee of P20,000.00 together with the entire records of Civil Case No.
1218-BG pending with RTC Branch 33, La Union; from which she received an
unfavorable judgment. Complainant sought the help oi PAO which filed a Notice of
Appeal appealing judgment to the Court of Appeals. The following day after
receiving the down payment, complainant completed the balance of P10,000.00 as
acceptance fee. This was followed by the signing of an employment contract and an
additional P2,000.00 to defray miscellaneous expenses. For failure to file appellant's
brief within the reglementary period, CA dismissed complainant's appeal. After
unsuccessful attempts to talk to respondent, complainant went back to respondent's
office to retrieve the records of her case, but respondent allegedly refused to talk to
her. In her answer respondent admitted having received P22,000.00 from complainant
but denied all of complainant's allegations, attributing to her the fault of complainant's
failure to inform her of the exact date of receipt of notice to file appellant's brief
which caused the dismissal of the appeal.
HELD: A lawyer should serve his client in a conscientious, diligent and efficient
manner, and he should provide a quality of service at least equal to that which lawyers
generally would expect of a competent lawyer in a like situation. By agreeing to be
his client's counsel, he represents that he will exercise ordinary diligence or that
reasonable degree of care and skill having reference to the character of the business he
undertakes to do, to protect the client’s interests and take all steps or do all acts
necessary therefor(e), and his client may reasonably expect him to discharge his
obligations diligently. The failure of respondent to file the appellant's brief for
complainant within the reglementary period constitutes gross negligence in violation
of the Code of Professional Responsibility. x x x Respondent is reminded that the
practice of law is a special privilege bestowed only upon those who are competent
intellectually, academically and morally. This Court has been exacting in its
expectations for the members of the Bar to always uphold the integrity and dignity of
the legal profession and refrain from any act or omission which might lessen the trust
and confidence of the public. In adopting the resolution of the IBP Board of
Governors, respondent Atty. Sinamar E. Limos is hereby SUSPENDED from the
practice of law for a period of THREE (3) MONTHS, with a stem warning that
repetition of the same or similar wrongdoing will be dealt with more severely.
Furthermore, respondent is Ordered to return the amount of P22,000.00 which she
received from complainant Virginia Villaflores.
CHAPTER II
THE LAWYER IN MAIDEN PRACTICE
A new lawyer who had just hurdled the bar examinations, has several options to
pursue in order to start a law practice, among which are: (1) solo private practice; (2)
assistant or associate or partner in a private law firm: (3) legal officer in corporate
law department; and (4) government employment.
(1) Solo private practice
There is no denying the fact, that a new lawyer who steps into the field of actual
practice for the first time, will encounter difficulty in going into solo private practice,
with a few exception of those who have started apprenticeship practice with a private
law firm, or have undergone under graduate legal aid training before Municipal
Courts before taking the bar. With precarious clientele and an unstable income to lean
on during the first years of maiden practice, a solo practitioner who starts from scratch,
will surely encounter hardships in meeting the soaring cost of office rentals,
equipments, travel and representation and other overhead expenses, all of which
cannot be dispensed with should he choose to venture into opening a law office.
Of course, solo private practice is fraught with risks, but obstacles or risks are no
handicap (or the courageous, let alone the advantage that a solo practitioner enjoys of
being his own boss. owing acquiescence or debt of gratitude to no one. On the one
hand, not being able to establish a name for himself during initial practice for lack of
reputation for success in litigation, a solo practitioner oftentimes finds difficulty in
attracting good paying clients. Without a strong recommendation from a friend or
relative to vouchsafe for the lawyer's dependability and ability to match his skills with
a veteran adversary, or unless the client is a family friend or classmate who needs no
introduction, no client will gamble his rights and interests with an inexperienced
lawyer. On the other hand, a solo practitioner as long as he comports himself as a
trustworthy lawyer before the eyes of the public by his performance, will surely reap
dividends in the long run and earn for himself a name as a successful courtroom
advocate.
(2) Assistant or associate in a private law firm
Experienced trial lawyers are in consensus, that joining a private law firm offers better
opportunities. This could be attained by organizing a law firm from among your
classmates or by joining a partnership with some familiar friend lawyers who are
financially well-oiled and capable of satisfying the overhead expenses of maintaining
a law office. You may likewise agree with your partnerships to bring in your old
tables and chairs and other equipments like filing cabinets, extra typewriters and
computer machines, including old textbooks for a small library. In defraying for office
rentals, communication gadgets like telephones and Internet service, as well
secretarial services, you may agree with each other to contribute equal amounts, or to
take sufficient amount from the common fund accumulated from early earnings. A
written contract of partnership is necessary to define the role of each partner and the
management of the partnership venture so as to avoid future misunderstanding.
(3) Joining a corporate law department
The advantage of joining a corporate law department is that it offers a higher salary
aside from the enjoyment of generous fringe benefits and perks not usually enjoyed
from a private law firm. The drawback on the other hand, is the fear of losing a high
paying job rather than speculating on a new venture of private practice, for once the
lawyer is stuck up with a corporate legal position he would find it difficult to go into
private practice with a precarious prospect of earning a stable income.
A similar predicament poses for a young lawyer who enters the government service.
Should the latter option becomes urgent especially when after years of spending spree
in the college of law and reviewing for the bar examinations, you are practically
drained of ready cash with which to answer your immediate needs, it might appear a
wise decision to enter the government service and stay there for a few years in order
to gain experience and specialization in a particular field, say five to six years.
Thereafter, you may join a lucrative paying law firm in order to gain more experience
in litigation process, but see to it that you do get stuck up there. As soon as you feel
that you arc already better equipped with and have acquired sufficient training and
experience therefrom, it is time for you to go and open your own law office as solo
private practitioner, or in partnership with your lawyer friends.
(4) Charting an Ideal law office
An ideal law office should comply with the so called rating chart, at least to invite the
attention of prospective clients. The following are considered essential factors that
may be of help in upgrading an ideal law office, viz:
a) Are the offices readily accessible?
b) Are the offices readily identified?
c) Do the offices present a neat and orderly appearance?
d) Is there sufficient light for your purposes and to permit your clients to read
while waiting?
e) Is there ample room?
f) Is the ventilation adequate?
g) If there is no ventilating system, are electric fans provided where
necessary?
h) Are the walls attractively decorated?
i ) Do you have control over the relative humidity?
j) In the (summer) does the (air-conditioning system) maintain a healthy
atmosphere?
k) Are the offices cleaned regularly?
l) Does the cleaning include windows, drapes, etc.?
m) Do you provide drinking water facilities for your office personnel and for
your clients?
n) Are there parking facilities for your client reasonably close to your offices?
o) Are your washroom facilities for your clients reasonably close to your
offices?
p) Is modem, interesting reading material available to clients in the waiting
room?
(5) Library, equipment, staff, billing
A relatively ideal law office should have a library — this is a must and indispensable
item in the office of a lawyer. The first impression that strikes a client on entering a
law office is, the existence of a library that is loaded with law books, consisting of
latest edition of textbooks, among which are the Civil Code of the Philippines both
codal and annotated version, Revised Penal Code annotated and codal, the SCRA,
Philippine Reports, Official Gazette, and such other law books containing
commentaries of renowned authors. Without a library no matter how modest, a
prospective client cannot help wondering whether the defender of his rights and
interests, is equipped with sufficient knowledge of the subject matter regarding his
cause, and be able to articulate his rights in court.
A library is not required of a notary public who peddles for nominal fees along some
dingy corners of Padre Faura or Claro M. Recto Avenue, with barely a notarial seal
and notarial book for his equipments. But a lawyer worth his salt and who aspires to
attract a large number of paying clientele, must show proof of his learning and
reading habits by the display of a well-furnished library. His books must be regularly
cleaned and should be in good repair once they start to gather dust. Obsolete books
dating as far as before the organization of the Philippine Supreme Court. should be
discarded, except the first volumes of Philippine Reports containing doctrines where
recent doctrines of today’s Supreme Court find referencing and application in today’s
litigious contests.
So also shall an ideal law office be equipped with clerical equipments, even old
typewriters and computer machines, mimeographing machines. and if possible a
xerox copier for those who could afford to acquire the latter. Old typewriters which
have become rusty for non-use because of the advent of computer machines, should
be repaired to make them available whenever the computer machines break down.
Even with the use of computer machines and laptops, typewriters are here to stay, and
still sent as indispensable equipments in times of emergency especially during
brown-outs caused by the failure to supply electricity occasioned by typhoons and
earthquakes.
Not to be neglected is the maintenance of desks, chairs, tables and sofas where clients
could relax and find comfort while waiting for their turn to be interviewed. And last
but not least, electric fans should be installed at every nook and corner within reach of
waiting clients, in the absence of an air-conditioner.
Billing is second to none in the operation of a law office. Since no lawyering is
sustainable except from the fees that are paid by your clients, a methodical but
frankness in billing a client should occupy a priority in running law office. The client
must be impressed that he is not being overcharged, otherwise, he will not return to
hire your services the second time around.
Right from the start of the interview, he should be frankly briefed thoroughly, (1) on
the nature of the ease involved; (2) the difficulty and intricacy of the legal issues as
compared to simpler ones; (3) the time and effort to be invested from the drafting of
the pleadings to the commencement of the litigation in court; (4) other unexpected
incidents like the filing and arguing a motion in court, the estimated time and effort to
be spent for the preparation of the motion and argumentation; (5) in the case of
appeal, the expenses to be incurred in perfecting an appeal, preparation of appeal
briefs, the payment of docketing and other lawful fees; (5) the additional amount for
attorney's fees for the purpose of appeal, which is separate and independent of the
main action. The billing should include transportation and representation expenses
which should be specified as separate item and payable only a day before the day of
hearing, specifying the amount that the client is supposed to pay per appearance in
court.
(6) How to deal with the client
The first order of business in dealing with a client is, frankness and tact should be the
climate during the first interview. With respect to the fixing and payment of attorney's
fees, a business-like approach should be the criterion, so that the client should not feel
cheated or taken advantage of. In any event, the contract of lease of services that gives
rise to attorney and client relationship, should be strictly implemented by a
satisfactory performance of the lawyer and his ability to produce favorable fruits of
the verdict. Every delay in the outcome of the case, should be explained to the client
after the close of each day of hearing. It is normal reaction of the client to become
wary every time the hearing is postponed, hence, it is the duty of the lawyer to explain
to the client the cause for postponement to avoid suspicion that he is in connivance
with the adverse counsel.
Be there when your client wants you. Do not procrastinate. Even when an urgent
family problem appears to be given first priority, if there is a way to set aside or delay
from attending to that family problem, do it. It will make your client happy if he
knows that you are there when he wants you. Remember that he is your bread and
butter, your breadbasket so to speak.
Service to your clients sometimes includes getting up form the table with your dinner
half-eaten, getting up and going out in the middle of the night, or even cancelling your
vacation plans. The speed and effectiveness with which you respond in a genuine or
serious emergency may spell the difference between a dissatisfied client and a lifelong
member of your solid clientele.
Whether as a general practitioner or specialized practitioner, the new lawyer should
endeavor to protect and take good care of his relations with his clients since they are
the breadbasket of his law practice. A survey of the client’s reaction to their lawyer’s
services generally shows, that a majority of clients are satisfied with their lawyers
with only minimal number who change lawyers.
First and foremost, of course, there is no substitute for winning a case. But human
beings as they are, not all lawyers can guarantee a sure victory for his client’s cause.
Apart from the human factor and this does not discount the unpredictable disposition
of the trial Judge and his apparent bias and prejudices, the inevitable intervention of
events beyond our control like the disappearance or death of a vital witness, bribery of
witness; the loss or disappearance of vital documentary evidence; and/or the lapse of
memory or impeachment of a witness by a skillful cross-examiner resulting in the
witness’ want of credibility; these and many more are some of the setbacks that a trial
lawyer usually suffers from the practice of his profession no matter how strong his
case may appear at the start.
Good human relations, a lot of psychology and tact and diplomacy are considered
essential ingredients that can guarantee satisfaction to a distraught client. Even with
the said news of losing a case, the client would not feel disappointed and would still
come back to the same lawyer who is loaded with these fire-power of encouragement,
and endeavors to soothe his client’s ruffled feelings with reasonable and logical
explanations why the case had collapsed.
The key to a satisfied client therefore, is to treat him with cordiality and compassion,
with sincerity and honest intentions, and with a spirit of not giving up even when all
the odds seem to shatter the brightest of hopes. These plus a strong determination to
succeed and sustain good fight, believing that not all days are cloudy and that in court
battle only one party is going to win and the other will lose. All of these human
factors must be practiced not only by the lawyer, but also by the lawyer’s secretary
and office staff.
(7) Make the client happy and comfortable
At the outset, the client should be made happy during the first interview, and to
continue to make him happy while the case is in progress by keeping him well
posted about the development of the case. A good trial lawyer should not be interested
only in his fees, but one who places the welfare of his client and the interest of the
smooth administration of justice above self; by avoiding unnecessary delays whether
in minimizing trial postponements and the filing of the necessary pleadings in court;
by being always available when needed and answering queries with promptness and
frankly regarding the possible outcome of the case, and trying to do his best to protect
his client’s rights and interest, attorney and client relationship. Hence, it is advisable
that the same be reduced to writing so that in case of disagreement, the court will
always uphold a written contract. Besides, there is nothing more embarrassing than
for a lawyer to sue his client for recovery of attorney’s fees. And this can be
prevented if the parties keep a concrete evidence of their agreement.
In fixing the amount of attorney’s fees, the following should serve as guidelines: (a)
the value of litigation involved; (b) the professional standing of the lawyer in the
community; and (c) the difficulty if the issues involved. The amount of attorney’s fees
on a contingent basis, may depend upon the agreement of the parties. Provided, That
it is not champertous or confiscatory in nature. Neither should the amount be
unconscionable, otherwise, the courts could order its reduction to make it reasonable
based on the standard of quantum meruit.
But an agreement which requires the client to assign a portion of his property subject
matter of the litigation in favor of his lawyer as contingent fee during the pendency of
said litigation, is considered a violation of Art. 1491 of the Civil Code and constitutes
an act of malpractice. (In re Adm. Matter vs. Ramon Gonzales, infra.)
A lot of new lawyers show reluctance in collecting their fees. But it should be borne
in mind that a lawyer thrives on his attorney’s fees, as a farmer does on his
agricultural products. Besides, if one has to serve the interest of his client to the fullest
and show entire devotion to his duty, it is only fair that the client observe religiosity in
complying with his obligation. The art if advocacy demands that although legal
profession is not a business undertaking and should be pursued mainly for its own
sake and not for money, the lawyer like all other human beings has the right to live.
The proper administration of justice so essential to the well-being of the public cannot
be secured without an intelligent and prosperous bar (Stausell vs. Roach, 29 ALR 143).
Lawyers should therefore be allowed to have and recover from their clients a
reasonable compensation for their services (Arce vs. PNB, 62 Phil. 569).
The same rule applies when the lawyer abandons the case or withdraws without
justifiable cause before its termination, unless the client consents thereto, or because
of the inability of counsel to cooperate cordially with additional counsel employed by
the client. With respect to contingent fee contract, however, a different rule governs,
such that as long as the contract is not tainted with fraud, undue influence, mistake or
suppression of facts on the part of the lawyer, the terms thereof shall be fully
implemented against the portion of the client’s property subject of the contract, but
only if the suit or litigation ends favorably to the client. If the case is lost, the lawyer
shall not be paid any fee. Also when the amount of fees stipulated in the contract is
unconscionable, the courts may step in to make it reasonable. (Gray vs. Stern, 140,
cited in Martin, Legal and Judicial Ethics, p. 26)
Small vs. Banares
516 SCRA 323
FACTS: This is a complaint for disbarment filed by Melvin D. Small against Atty.
Jerry Banares for failure to render legal services and to return the money received for
his legal services. On 30 August 2001 engaged the services of respondent for the
filing of several complaints against one Lyneth Amar. First, respondent received the
amount of P20,000.00 from complainant as acceptance fee. Later complainant
delivered to respondent P60,000.00 allegedly to defray filing fees. Respondent then
wrote a demand letter to Amar and talked to her on the phone. Respondent also
informed complainant that he would be preparing the documents for the cases.
Complainant consistently communicated with respondent regarding the status of the
case. But respondent repeatedly told the complainant to wait as respondent was still
preparing the documents. In its report IBP made findings that respondent failed to
render any legal service to complainant despite having been paid for his services, and
for violating Canons 16, 18 and 19 of the Code of Professional Responsibility., and
thus recommended the suspension of respondent from the practice of law for two (2)
years and ordered respondent to return to complainant the amount of P80,000.00 that
he received from the complainant.
HELD: We sustain the findings and recommendation of the IBP. The Code provides
that a lawyer shall serve his client with competence and diligence. The Code states
that a lawyer shall keep the client informed of the status of his case and shall respond
within the reasonable time to the client’s request for information. Respondent’s failure
to communicate with the complainant was an unjustified denial of complainant’s right
to be fully informed of the status of the cases. By this inaction, respondent
disregarded his duties as lawyer. x x x The relation of attorney and client is highly
fiduciary, requiring utmost good faith, loyalty, and fidelity on the part of the attorney.
In this case, respondent clearly fell short of the demands required of him as a member
of the Bar.
(8) Sustaining a law practice; specialization
Once a lawyer has acquired a substantial number of clientele to start with a maiden
practice, the new lawyer should strive to maintain their patronage while attracting
some more clients. It is at this stage that the new lawyer ought to establish a
reputation of professional responsibility and honesty. Once a clientele had been fairly
established, and as you gain enough footage to sustain a developing practice, care
must be taken to protect your reputation by enhancing your experience, skill,
dependability, integrity, ability to produce results and a good public relations with the
courts, the bar and the public.
Former Justice Minister Ricardo C. Puno once said, "when one studies law, passes the
bar and becomes a lawyer, he is perpetually condemned to study law, otherwise, he
will become useless like a farm implement that becomes rusty for non-use." If a
lawyer is to succeed in his practice, he must keep abreast with recent legislations and
their amendments, as well as with the latest jurisprudence. One should not think that a
legal education ceases upon passing the bar. In fact, passing the bar merely marks the
beginning of a law career. The new lawyer ought to attend workshops, seminars and
conventions that conduct lectures on legal education, especially the ones sponsored by
the UP Law Center on continuing legal education.
The Mandatory Continuing Legal Education program (MCLE) that the Supreme
Court has imposed on legal practitioners as a sine quo non requirement before a
lawyer is allowed to institute an initiatory pleading and appear in court, is a step in the
right direction, and has extended incalculable aid to the courts in an efficient and less
erratic administration of justice. A successful practitioner should not count the cost
of building a private library if he is engaged in solo practice, unless you are employed
in a big law firm that maintains a large and flexible library. The point is that a
successful practitioner must be up-to-date in his reading, otherwise, he will find
himself a subject of ridicule in court for citing a decision which had long been
abandoned. As long as you could afford, it is advisable to subscribe to all local and
foreign law journals and publications in order to be will informed about the latest
changes in our substantive and procedural laws such as the IBP Journal and Lawyer's
Journal.
Membership in different law associations and lawyer's organizations is necessary for a
lawyer in order to familiarize himself with the recent developments in our legal and
judicial system, and be able to imbibe the warm fellowship that pervades among the
rank and file of the profession. It also affords an opportunity for you to observe the
idiosyncracies and temperament of those with whom you brush elbows and tacks in
court everyday, including members of the bench before whose sala you have pending
cases, thus be able to adopt a more effective approach in dealing with them, short of
influence peddling. This is especially true with respect to new lawyers who are
engaged in solo private practice.
As to specialization, a law practitioner should seek light from his own evaluation of
his capabilities and assets, whether the field he has chosen is really his favorite and
that it is in his chosen field where he can show his skill and talent. Once having
chosen a specialization, he should restrict his practice therein by starting with few
cases. As your name is known in that line, then your clientele will gradually increase
in number, so much so that your fellow lawyers will refer some of their clients,
relatives and acquaintances to you. However, specialization is rather difficult to
succeed when you are practicing in rural areas or provinces, because you cannot
restrict l your practice in only one field. The reason is that certain government
agencies with which you cannot avoid completing your transactions, like the patent
office, the immigration bureau, BIR, Securities and Exchange Commission and the
Land Registration Office, to mention a few, are located in Metro Manila or in the
cities. Hence, if you contemplate to devote in specialization in the rural areas, you
might end in frustration. At most only general practitioners will be able to thrive in
the provinces and municipalities.
(10) Norms of conduct for successful lawyering
A lawyer's non-negotiable standard of performance is, that there is no substitute for
winning a case. But human beings as they are, not all lawyers can guarantee a sure
victory for his client's cause. But regardless of the outcome of the case, remember that
your clients are the breadbasket of your profession, and that you owe them a bundle of
your time to make them happy and deserving of their trust and confidence. Here are
some suggestions how to make your clients happy, to wit:
(a) Remember whom you are working for.- It is natural for a lawyer to think of
the firm or boss. Every young associate has had at least few experiences that tend to
reinforce this idea, and even seasoned attorneys are painfully aware of the rules,
procedure, and guidelines that their managing partners set. Although this is the
prevailing reality of law office management you should never lose sight of the fact
that the real boss is the client base. If you satisfy the clients, you stay in business. Be
nice to them.
(b) Define the relationship.- Make sure from the start that your clients
understand what you can and cannot do for them. Let them know that you will get
their consent before settling or taking other actions in their cases. Make sure your
clients understand everything to their satisfaction - not yours. Whenever there is even
the slightest chance of a misunderstanding, follow up any conference or phone
conversation with a letter confirming your discussion. Always send this letter after
clients initially sign up with you.
(c) Keep in touch.- Don't treat your clients like strangers. Let them know when
you will be taking depositions, that you will be talking to the attorney on the other
side, or that you received a fax just moments ago with an offer for settlement. Down
the road, give your clients courtesy calls every now and then. Tell them you haven't
heard from them for a while. Ask how they are. Give them updates. Even if nothing
has been going on, let them know their cases are still alive and important to you.
(d) Keep at least two docketing systems.- You should have two docketing
systems, one that you manage and one that your staff manages. Always let your
clients know when any special date is coming up, and remember they're probably all
special to your clients. So let them know about not just court dates, but about all
depositions, meetings, teleconferences, and the like.
(e) Accept phone calls.- Many clients feel slightly uncomfortable about calling
their lawyers: they may have the impression that interrupting the lawyer's day will
only hurt their own cases. Always remain aware that the client is at something of a
disadvantage in these situations. Let the client know that you are working for him or
her and that you will accept phone calls and answer any questions. If you only take
calls during certain hours, let your clients know what these hours are. Be accessible.
Your clients don't want to hear that you are "not available". If you can't take the call
have your secretary tell the client that you'll call back, or have an associate or staff
member answer the client's questions if it is possible (this is discussed in more details
below). Remember, your clients are paying for your services. Be of service.
(f) Promptly return your phone calls.- Be frank with yourself. You hate it
when experts, witnesses, investigators, or other lawyers fail to return your phone calls.
Clients hate it too. An unreturned phone call is a mark against you, and these marks
add up. Have your staff return phone calls when you cannot. Even if you have been
remiss and let matter sit without taking action, call your clients back. Be honest. Tell
them you've been busy, and let them know what action you will take and when you
will take it, and make sure you keep your word.
(g) Spend time with your staff.- Spend time with your staff on a regular basis,
going over your case load. Update each other. The added bonus is that it will open up
communication with your staff and keep them in the loop which is where they want to
be. If you keep them happy, they'll be cheerful and eager to help you and your clients.
(h) Paper the worlds.- Furnish your client a copy of everything. I know one
secretary who got furious because her boss took a paper the world approach to
keeping clients informed. She complained that he carbon copies the clients on every
piece of correspondents he sent out on their cases. Sure. It took a lot of time copying
and mailing, but her boss was smart. He kept his clients informed. He gave them an
opportunity to call with questions. He let them know that he was taking action on their
cases, that their cases were still alive" and moving forward. You may think, "Well, I
could do that. I could do any of these things, but most of my cases are so small.
"Maybe to you. But your clients, these cases are big, maybe the biggest thing
happening in any of their lives.
(i) Send out an evaluation sheet.- Send out an evaluation sheet at the end of
every case, asking your clients to evaluate your performance. This will be a real
learning experience. And if you feel uncomfortable about doing this, have a shot or
rye, get a bullet to bite on, and do it anyway. (The Lawyer's Review, Vol. IX. No.
12, p. 81.)
(11) Random criteria for obtaining clients
The result of recent survey investigations conducted by a local chapter of the
Integrated Bar of the Philippines, shows the following reasons given by clients when
asked about their criteria in the selection of their lawyer, viz:
1. Reputation for capability as a lawyer 26%;
2. Reputation for trustworthiness 23%;
3. Personal acquaintance with lawyer 20%;
4. Referral by neighbor or friend 13%;
5. Participation in civic, religious, and community activities 3%;
6. Referral by another lawyer 2%;
7. Lawyer's political activity 1%;
8. Lawyer's appearance and conduct in court 1%;
9. Other reasons 3%.
The foregoing survey result by the Integrated Bar of the Philippines, discloses that
reputation plus personal contact account for 85% of client’s reasons in the selection of
a lawyer who will defend his cause in court. Since it is the lawyer’s capability,
reputed and known, that is his most effective means of obtaining and keeping a
clientele, it behooves of a practitioner to devote his energy and time in doing a better
job, and preparing himself for doing a still better job the next time around.
(12) But reputation only come later before clients
However, a good reputation will get you clients, but you cannot earn a good
reputation unless you have some clients in the first place. It is for this reason that you
cannot discard all the time-tested and lawyer-tested methods for getting clients on the
theory that your professional capability and reputation are the most important
ingredients. You may outgrow your need for joining meeting the public and looking
for referrals, but these methods plus all the other enumerated in this chapter are
important first steps in getting started and beginning to expand your practice.
The best and easiest place to begin developing new clients is in your own circle of
friends and acquaintances. Undoubtedly, some of your friends will almost
automatically try to send you business and recommend you highly to people they
know and meet. Others, however, although they know you and like you, may not even
think of you as a lawyer nor may if ever occur to them that you might like to do their
legal work. Sometimes it takes a little doing to suggest this to a friend. Whatever the
relationship, you cannot solicit business nor can you succeed by being too blatant.
Surveys show that service organizations are responsible for more recommendations of
clients to lawyers than any other comparable type of group. Your church and your
civic club, or association are also valuable sources of potential clients. You may know
some of your fellow members very slightly but they can become favorably aware of
you through projects you work or report on. The introduction that the members give
you will make it easy for you to extend your acquaintance.
Example: If you belong to the same church as the town banker, this does not mean
that he will send you the bank’s legal business at once, but it does mean that you will
have an opportunity to meet him on a favorable conversation basis. The rest is up to
you. Although don’t overdo in advertising yourself like a salesman, for the more they
become wary of your motives as a shyster or ambulance chaser by blowing your own
horn. A modest story of your past success in a litigation of your specialization, if
narrated in a prudent and matter-of-fact manner, will make a first impression of your
reliability and skill, especially if your story is corroborated by a member of their
group.
In certain types of legal proceedings, e.g. probate of the will, intestate estate,
dissolution of a corporation or partnership among others, it is the duty of the court or
judge to appoint a lawyer as administrator, referee, receive, special administrator, or
the like. In this jurisdiction, it is the duty of the court to appoint a counsel de oficio for
a defenseless accused in criminal cases who are compensated by government funds.
In some jurisdictions, judicial appointments are regarded as “patronage” usually the
judge making the appointment selects a responsible lawyer from among those whom
he personally knows to be competent. Hence, your opportunity for receiving such
appointment can come through your acquaintance with judges. Participation in legal
forums and bar association activities is your best course toward this goal.
(13) Find time for speaking engagements
There are speaking engagements in certain localities that await for interesting
speakers who can enlighten the members thereof on their projects and on-going
crusade for a cause. A little research and joining these organizations which is
fellowship oriented, will get you more invitations to speak than you can accommodate
as soon as they discover your ability in giving them vital information and novel ideas.
Speaking to local groups is perhaps the most useful activity for giving you wide
opportunity in building your practice. It brings you into face to face contact with large
numbers of people, and offers them an opportunity to observe you in the performance
of one of the lawyer’s most common activity – talking.
Further enhancement of your name in order to make known about your successes in
law practice, is the common mode of self-advertisement without violating the Canons
of Professional Ethics by doing out calling cards with your name, office address and
telephone number printed thereon. Do not imitate the practice of physicians and
doctors of medicine who advertise their field of specialization in streamers and bill
boards, for these are caveats in case of lawyers and run afoul against the ethics of the
profession.
(14) How to hold a client
The most elementary practice of holding a client is, giving of sound advice, drafting
of valid documents, win your client’s cases by adopting a correct theory and backing
of the law that is applicable to his problem. But doing a good job or getting results is
not always enough. Clients look for something more, and judging by what a
substantial sampling of laymen say, the following are the characteristics clients look
for in an outstanding attorney, thus; Friendliness, promptness, courtesy, respect for
clients, businesslike attitude, and consideration in keeping clients informed.
(15) Standards that lawyers expect from clients
a) Prompt and thorough communication to keep the client fully informed on the
progress of his legal matters. (This practice is also helpful if you want a favorable
reception of your bill fees);
b) Prompt handling of the client’s work. Lawyers use the word “procrastination”
more than any other in describing conduct harmful to attorney-client relationship;
c) Honest and straightforward dealing with the client, including careful evaluation
of the case, a full explanation of the particular problems and procedures involved, and
a frank and early discussion of fees;
d) A courteous and sympathetic attitude toward the client evidencing a personal
and sincere interest in the client’s problems;
e) Competence and diligence in handling a client’s affairs.
Every aspect of your first interview is important. Your client will appreciate it if you
step out into the reception room, greet him warmly, and personally escort him into
your office.
Keep your interview private. Afford your client the privilege of a private interview.
See to it that it is not interrupted by incoming phone calls. If you receive an important
call and your secretary feels that you should handle it immediately, take it on another
wire, perhaps on a mobile phone if you have any. If you discuss another client’s
affairs in a client’s presence, he may not like it. The same goes for leaving another
client’s private papers exposed on your desk – don’t! Be scrupulously guarding
another client’s privacy, you will impress the client in front of you that his own desire
for privacy will be respected.
Outline your proposed course of action. If you put this to your client, step-by-step,
you can secure his approval at each step as you develop the plan, explaining the
reasons for each decision. This should impress your client. Not only will it
demonstrate to him that you have taken the time and interest to work out his problem
in detail, but it will also indicate that you are taking him into your confidence and that
you have a healthy respect for his intelligence and understanding.
Apply to break to the interview. It is not advisable to be short with a client; on the
other hand, it sometimes becomes necessary to break an interview with a long-winded
client. Naturally, if you have never met the client before, you have no way of knowing
what to expect nor can you fortify yourself accordingly. If, however, you are
forewarned, consider the following approach:
Example: You have a conference coming up with Ginamarie de los Santos. You know
that de los Santos is prone to related meandering anecdotes about his former glories as
President of De Los Santos Enterprise. What she actually wants to consult you about
is a revision of her will to provide for a brand new set of twin grandchildren.
When Ginamarie comes in, glance at your desk clock and thank her punctuality,
telling her that you have a rather important matter scheduled in precisely forty-five
minutes. (You can do this in a friendly businessman manner that will actually please
her). You proceed with your interview and within two minutes she is off on one of her
excursions into the history of the mercantile transactions and the derring – do of the
de los Santos Enterprise, with herself at the helm. You listen to and analyze
Ginamarie’s story about her experience as a captain of industry with the same care
and attention as if she were actually discussing the business at hand. If you do not, she
may get the impression that you are not interested in her, and (with typical logic) not
an intelligent lawyer.
After forty-five minutes, your secretary comes in to remind you of your appointment.
(She has been carefully briefed, of course.) You tell Ginamarie that you were so
absorbed in what she was saying that you still haven’t gotten around to finding out
what she wanted to do about her will. You are sorry but she will have to pay another
visit. (Naturally, you are keeping track of the time you spend in these conference).
Surprisingly enough, Ginamarie is not likely to feel put upon, but rather flattered and
pleased at your interest. When she receives your bill, however, she is not likely to
again take two visits to accomplish what should be done in one visit.
Don’t wait – do something. Before the interview is over, it is important that you do
something for your client. It may be nothing more than making a phone call, calling in
your secretary and dictating a memo to her, calling in an associate or assistant,
checking a statute, or giving your client a list of material you want her to bring with
her at the next interview. Whatever it is that is suitable, get started and do something
while your client is still in the office. This does more than give her the impression that
you are interested and eager and that her matter is being handled: it gives her an
insight into your practice and into what is involved in even a “simple matter”.
(16)
Look as effective as you are
You have a duty to fight for your client’s interest. If any fighting has to be done. But
the fighting you do as a lawyer should be confined to the tactics which courteous and
dignified (but effective) lawyers traditionally use. It is likely to shock and embarrass a
client to see you lose your temper, or descend to personalities or inappropriate actions
even if you are theoretically doing it on his account.
Warning: On the other hand, don’t overdo the courtesy. Your client may resent it if
you abandon him at noon recess and to a friendly lunch with the opponent’s lawyer.
You may be fighting hard in court and you may have known opposing counsel since
law school days, but hold off with the lunch. Seeing you hobnob with the “enemy”
may create all sorts of doubts and worries in you client’s mind.
(17)
Whether you win or lose a case, don’t lose your client
Right from the very start of our study, it has been our consensus that clients are the
breadbasket of the lawyer’s practice. In fact, without clients what else would propel a
lawyer into the practice of law, and what is the sense of appearing in court? Even in
building a reputation, clients are the cornerstone of a successful law practice, and
clients are instruments in reaping dividends for a lawyer’s profession, Hence, whether
winning or losing a case, a lawyer should strive not to lose his clients, but to win more
clients to expand his clientele.
Let us reminisce a story of successful lawyering. There is a famous story about a
lawyer who represented a client charged with a crime. The lawyer fought for his client
during a long trial but the jury came in against him. The lawyer appealed but lost,
Again the lawyer appealed and finally reached the Supreme Court, which granted a
new trial. Again, lawyer and client went through a lengthy trial. Finally, this time the
jury came in with a verdict of acquittal.
“Thank heaven,” said the lawyer, “we’ve won.”
“Wonderful” said the client. “What do we do now?”
Of course few clients are like the one in the story who had become so inured to legal
proceedings that he had come to assume that they would continue for the rest of his
life, but it is still true that sometimes your client continues to need your guidance after
it seems to you that everything necessary has been done, The best of all practice
builders ism of course a well-served and completely satisfied client. In addition, you
have other means of expanding your practice; these include changing from solo to
partnership practice, opening a home or branch office: specializing: retrieving lost
legal business and keeping your client legally up-to-date.
It doesn’t make it right or wise, simply because “everyone is doing it” but the current
trend leans towards partnership practice. Finding show that for more than fifty years
since the end of World War II, there has been a rapid increase in the number of
lawyers who are engaged in partnership practice. If you are still practicing solo,
consider the advantages of switching to a partnership with your close acquaintances
and friend-lawyers. It is unwise if not unfulfilling for a lawyer to concentrate in only
one field of specialization. The modern client requires an attorney with a wide variety
of specialized skills. No one man can be a specialist in everything. You can better
meet this need for specialized service if you have available one or more partners who
have these specialized skills. You will thus be able to do all of your client’s legal
work and do it well with partners who can share his expertise with you in other fields
of law practice.
Greater earnings – Surveys show that partners practicing together earn more than the
total of their previous individual earnings. Lawyers in partnership practice earn on the
average well over 100% more than solo practitioners. This can be attributed to a
variety of factors. One such factor is the sharing of expertise and talent with each
partner in different specializations, in order to find solutions to a cause of action with
which a particular partner is not conversant about. A prospective client who happens
to bump on a solo practitioner who lacks the skill in solving his problem, will run to a
partnership where he can find a skilled lawyer who can aid him in court. Besides,
seldom can a client find a solo practitioner who is versatile in all sorts of litigation or
legal problem.’
Greater efficiency – A specialist because of his experience and special background
can do a job more quickly and more efficiently than a general practitioner. A general
practitioner would have to waste many hours doing costly research and these hours
would of necessity be unbillable. Just like doctors of medicine some of whom are
specialists and some are general practitioners, such that when a patient who is
diagnosed for a heart ailment consults a general practitioner the latter usually refers
the patient to a specialist in heart diseases among his peers.
Lower overhead – Obviously if a number of lawyers pool their common resources in a
partnership, there will be a reduction on overhead costs. There will be savings from
the use of a common reception area library, storage facilities as well as in personnel
and equipment.
More clients – As the number of partners increases, the number of opportunities for
meeting clients through active participation in civic and club activities, likewise
increases. As a matter of facts, in some partnerships one partner is the “outside or
contact man” who makes a point of getting around and promoting the public relations
aspect of the partnership, short of advertising the partnership in a salestalk fashion
that is violative of the ethics of the profession.
CHAPTER III
WORKLOAD OF A LAWYER
A lawyer’s workload cannot be excluded from the subject of legal counselling, if for
no other purpose than to acquaint and polish the legal practitioner of the bread and
butter of his profession. Any omission of this important aspect from the standard work
tasks of a legal practitioner, would spell a difference in the success or failure of his
law practice. Here we need to reproduce the essential features that were written in the
previous edition on Legal Counselling by this author, without which this work would
not be complete. The standard yardstick of successful lawyering may be defined from
accomplishment of the following work tasks of the practicing lawyers, to wit:
a) Advice
b) Negotiation and conciliation
c) Drafting, whether of pleadings to be filed in court, or of documents and
written contracts;
d) Litigation
e) Financing
f) Property management
g) Acting as executor or trustee of a will, or special administration in the
case of intestate succession;
h) Specialization
In the field of advice, every lawyer is presumed to be competent in giving
spontaneous and off-hand advice to a prospective clients during the first interview, at
least on a foreshadowing and relative outcome of a potential litigation. This is to
pre-empt the falling out from conciliation and mediation process. But if there is even
a glimmering hope of pursuing further negotiations and compromises, this process
should first be pursued relentlessly and exhaustively before giving up. For in the
layman’s language better a bad settlement than a good litigation, with all the attendant
anxiety, mental torture, recurrent stress and sleepless nights.
On matters involving an intricate question of law and the latest ruling of the Supreme
Court, the lawyer should be frank to the client, that the same cannot be answered on
the spot, hence, needs a reservation on your part to make a prior research and
verification with the recent applicable jurisprudence and stature, from textbooks of
renowned authors, the SCRA, Philippine Reports, Official Gazette and latest Supreme
Court reports.
Giving of advice is the task lawyers most commonly perform, and whatever else they
do for clients is almost invariably accompanied by advice. This task is usually based
in large measure on the lawyer’s conception and learning of relevant substantive law
and doctrines applicable on the particular facts and subject involved. The advice may
also resolve on the information and probable outcome based on the following
considerations such as:
1) Anticipated reactions of courts and other administrative agencies or official or
quasi-judicial bodies;
2) Probative value of evidence;
3) Desires and resources of clients and other affected parties; and
4) Alternative courses of action
The following are alternative courses of action that the lawyer may suggest to his
clients, he should pursue either any or all of them:
1) Indicate the preference as to which course of action should be pursued by the
client;
2) Proceed to argue persuasively as to why the client should adopt this course of
action; or
3) He may try to avoid showing any preference at all on which course of action
should be taken, merely posting available alternatives in as neutral terms as
possible.
In pursuing the latter alternative, the lawyer merely restricts his role to illuminating
choices, not recommending and any opinion he expresses are directed only at the
relevancy and merits of the alternatives, not at deciding among them. But he should
never seek to coerce the client, or to threaten to impose sanctions if the client does not
decide a certain way. His role is to assist the client in deciding he has no power to
force him to do so, although he frequently will point out the dangers of coercion from
other sources.
a) Non-legal advice
Not infrequently lawyers are asked to give advice having little or nothing to do with
legal doctrine or law-making or adjudicating bodies. Lawyers who are holding
positions in government and business often become trusted counselors on a wide
range of family, business, administrative and political problems. Widows, spouses,
with marital troubles, and small businessmen in financial difficulties are among those
likely to seek non-legal advice from their lawyers. As long as the performance of
these acts do not prejudice the interest of the public or are done outside of office hours,
there is nothing wrong in the acts of government lawyers who earn extra income
outside pf their official functions. This is quite true with fulltime judges and
government prosecutors who teach in law schools outside of office hours.
b) Role conflict in giving advice
In advising clients, the lawyer can often run into role conflict giving rise to the
following questions:
1) When should the lawyer be the client’s servant and when his critic?
2) To what extent should he identify with the client’s goals and follow his
expressed wishes?
3) To what extent should he question them?
Most of the answers to these questions focus on what the client wants. He may want
the lawyer to be sounding board, a neutral evaluator of client ideas, or he may just
want approval for his ideas, reassurance to bolster his, morale, or perhaps respectable
authority to strengthen his hand on the bargaining table with potential adversaries.
Here the lawyer may have difficult time determining what the client wants, and the
real problem may not be one of role conflict but of sole definition. Whatever the real
motive of the client is, before he expresses concrete overtures on hiring your services,
simply accommodate in answering his queries with honest and straightforward
explanations on the probable outcome of his problem by the court’s adjudication.
Even if his motive is merely to test your knowledge and competence, the moment he
feels satisfied with your briefing, rest assured that he will come back to sign a contract
of legal services.
c) The lawyer’s ultimate word
The best approached in dealing with this particular client is to define right upon the
acceptance of the employment or before giving any advice, the extent of the client’s
role. He should be impressed that as a lawyer his wishes can be followed insofar as
they appear to be legally feasible and do not collide with the lawyer’s oath. Frankness
is the name of the game. The lawyer’s role is to stand foursquare with his client’s
interest, but only to such limit that will not allow him to compromise your
professional and moral standards, by advising on a course of conduct bordering on
ethical principles.
d) Essential factors on negotiation and conciliation
Among others, the most common task a lawyer encounters in his daily practice is, the
dealing with another or potential adversary in an effort to reach an accord between the
client and the other party. These factors may consist in, 1) proposal to the other side,
2) counter-proposals, 3) reconsideration, 4) compromise, 5) advice to clients; and 6)
client instructions to counsel.
Usually, there are only two parties that are involved in a negotiation, and most often
all exchanges between two sides handled by but two persons, one on each side, with
one or both of these persons frequently being lawyers. But negotiations may involve
more than two sides of parties, and negotiation efforts for any side may be made by a
team of persons—the client and his lawyer are a common team.
In real estate transactions, brokers often engage in negotiations representing one side,
as may tax advisers, architects, contractors, or other professional and business
personnel. Lawyers for large chain store operations sometimes negotiate mortgages
for owners of real properties who have agreed to remodel and lease to the client if it
can secure a mortgage financing for the owner. Oftentimes, conciliation takes center
stage and requires parient prodding and bold initiatives by the disadvantaged and
captive debtor, even while the main action has been commenced and pending in the
trial court, and the availment of all ancillary remedies and appellate courses of action
up to the Supreme Court appears to be working effectively in favor of the debtor. For
once the creditor’s cause is threatened by reversal and its evidence tends to nose-dive
before the appellate courts, the prospect of a compromise agreement becomes
compelling.
e) Effective negotiation techniques
Negotiation usually transpires in a face to face conference, by the active role of a
third-party negotiator (and now there are mediation officers installed by the Supreme
Court in every city or provinces). But some or all exchanges may be accomplished by
telephone or correspondence. In some cases, a key figure in negotiation, perhaps a
lawyer, may go to each party individually and secure commitments, thereby piecing
together and agreement without the pother participants meeting face to face. Lawyers
may enter negotiations at any stage. Some clients want their lawyers to participate at
the inception of dealings, other wait until after the essential terms of a bargain have
been agreed upon
But there is nothing more effective medium of negotiations that leads to a quick
compromise agreement than, when the trial Judge himself personally intervenes with
or without their lawyers, in having the party’s litigants attend an impromptu
conference, by inviting them inside his chambers, playing the role of a baton leader or
like a conductor on an orchestra. A judge who simply waits for the parties to break the
ice, is a lazy Judge who will even tolerate frequent postponements by the lawyers and
behaves in a lackadaisical manner simply waiting for his salary check every fifteenth
and end of the month. He does not give a heck whatever happens to the case of the
party’s litigants, as long as he is happy with his salary and 13th month checks. The
reason why some RTC Judges were forced into retirement without having received
their retirement pay, is because upon reaching the retirement age of 70, some still
have an overload of undisposed cases and unresolved incidents numbering more than
a hundred.
This author is talking thru experience as a former RTC Judge. During his incumbency
as Presiding Judge, Regional Trial Court, Branch 61, Negros Occidental, this author
had a personal encounter with a couple whose relationship was rocked by a petty
family problem. One day in the thick of hearing of multiple criminal cases that have
been left unclogged by his predecessor, this author was confronted by this family
squabble—a Petition by the wife to regain custody of their three-year old child in the
custody of the husband who refused the wife to visit the child. When their case was
called for hearing, this author asked the couple if there is any chance, they could
reconcile and give their marriage a second try. The wife appeared so furious with her
denial and cried aloud inside the courtroom, forcing this author to suspend the hearing
and invited them inside his chambers. Inside his office, the mother of the wife was
already waiting and hurling innuendos against her son-in-law. When this author asked
the couple of how really deep is their misunderstanding that they cannot find peace
with each other, the wife begun to cry reasoning that her husband is a cruel and
beastly husband, and that she would rather die than reconcile with him. This author
first ordered the Sheriff to accompany the wife’s mother outside who was more
talkative than the parties themselves.
After listening to their heated arguments and conflicting versions, this author threw
these questions to them. He asked the husband if he still remembers the day when he
was courting his wife, when he promised the moon, the starts, his body and soul and
his undying love for his wife. He then turned to the wife and asked her how she felt
when she accepted her husband’s proposal for marriage, causing them to taste the first
fruits of sex. Of course, she did not deny that she was smitten by her husband who
was her first love, and in fact, they had already consummated countless pre-marital
sex even before they took each other for better or for worse, in sickness or in health,
for richer or poorer till death do they part before an officiating Catholic priest. Hence,
this author urged them to once again relive those ecstatic moments when they were
performing pre-marital sex, of how they felt to be in each others arms as if they were
in the seventh heaven on reaching the apex of languid love making.
After giving them a brief discourse on the sanctity of marriage, that it is designed not
only for sex, but is indissoluble social institution which God Himself had sanctified
by creating a woman out of Adam's rib, and glorified it at the wedding an Cana, this
author left them alone inside his chambers, and locked the door of his office. Roughly
about thirty (30) minutes thereafter, this author returned to his chambers, and when he
opened the door, he saw the couple locked into each other’s lips and embracing each
other so tightly as if even an iron bar cannot separate them. When asked if they still
desire to go to trial, both the wife and husband chorused that they have agreed to
reconcile and go back to their empty home, and prayed for the dismissal of the
pending case for child custody. However, as their wallets were empty and had no with
which to pay for their fares in going home, this author who had ten (10) thousand
pesos inside his wallet having just received his 13th month pay, handed to the wife the
thousand pesos and warned them not to quarrel anymore.
The purpose of relating the foregoing incident, is to emphasize that if the Judge is
truly committed to his sworn task as a true and selfless arbiter of justice, he can go out
of his way from simply sitting inside his air-conditioned room all day long, by
actively participating in bringing the panics to the negotiating table. As aptly said
earlier, the Presiding Judge must act like a maestro or a conductor orchestrating the
parties to a compromise agreement, and we see no reason why the parties’ litigants
and their lawyers would not listen to the disinterested intervention of an impartial
Judge who is committed in preserving family solidarity and lessening the backlogs
from the court's docket.
And even in the appellate courts including the Supreme Court, if only these
Honorable Magistrates are truly dedicated to an efficient administration of justice in
this country, there is no need of those high tech proceedings, of what they now
propose — an automaton style of court proceedings. They can sit on their swivel
chairs inside their air-conditioned offices with their pockets overflowing with various
perks and allowances and 13th month pay, from the start of office hours in the
morning, up to even past six o'clock in the evening writing decisions for cases that
have been long pending for adjudication, some with pendency for 15 up to 20 years
on their tables.
This author was told by a reliable informant, that during the incumbency of the late
Justices Cayetano Arellano, Jose P. Laurel and Justice Gregorio Perfecto, to mention
a few outstanding members of the judiciary, they would start from 8:00 o'clock in
the morning up to 8:00 o'clock in the evening writing decisions for cases that have
peed for a number of years in the S.C.'s docket, with only a few breaks to take their
meals, then back again to their tables in the Supreme Court at Padre Faura. There was
no dream of automaton then, nor of paperless rule or judicial affidavit rule which
more often lead into a misrule or delay by procrastinating lawyers who file all sorts of
motions arid pleadings to justify their fat fees. Their staffs were equipped with old
typewriters only and few stenographic reporters who take dictations from their
Justices. There were no computer machines during their time, nor xerox copiers to
speed up the reproduction process of court orders and final judgments to be furnished
to party’s litigants. And those Justices aforementioned did not agitate Congress for
another increase in their budgetary outlays, as they were already contented and were
able to discharge their duties efficiently on a limited budget from the General
Appropriations Act.
One important thing to remember when negotiating for a client is that the lawyer must
be equipped with a special power of attorney before sitting at the negotiating table.
This is so because the essence of a lawyer and client relationship is likened to that of
agent and principal in a contract of agency forging out a compromise agreement. As
aptly ruled, a compromise agreement without a special power of attorney or special
written authority from the client, renders the judgment based on a compromise
agreement null and void. But once approved by the court a compromise agreement
has the force of res judicata between the parties, unless vitiated by forgery or other
vices of consent. (Wesca vs. Gilinsky, 526 SCRA 533)
Our law on agency under Article 1878 of the Civil Code requires a special power of
attorney in the following:
1.To make such payments as are not usually considered as acts of administration;
2.To effect novation which put an end to obligations already in existence at the
time the agency was constituted;
3.To compromise, submit questions to arbitration, to renounce the right to appeal
from a judgment, waive objections to the venue of an action, to abandon a
prescription already acquired;
4.To waive any obligation gratuitously;
5.To enter into any contract by which the ownership of an immovable is
transmitted or acquired either gratuitously or for a valuable consideration;
6.To make gifts, except customary ones for charity or those made to employees in
the business managed by the agent;
7.To loan or borrow money, unless the latter aa be urgent and indispensable for
the presentation of things which are under administration;
8.To lease any real property to another person for more than one year;
9.To bind the principal to render some services without compensation;
10.To bind the principal in a contract of partner11.To obligate the principal as a guarantor or surety;
12.To create or convey real rights over immovable property;
13.To accept or repudiate an inheritance;
14.To ratify or recognize obligations contracted before the agency;
15.Any other act of strict dominion;
"A special power to sell excludes the power to mortgage, and a special power to
mortgage does not include the power to sell." (Art. 1879. NCC)
"A special rower to compromise does not authorize submission to arbitration.” (Art.
1880, NCC)
F. A general power does not Include special power
The principle is that; a general power of attorney does not include a special power to
perform a particular act. Thus, the special authorities necessary in the above
enumerated acts are not included in the general authority of a lawyer to bind his client
within the scope of his contract of employment. Nevertheless, the performance of the
acts without the consent of the client does not ipso facto render the transaction or
deed void, but only voidable until ratified by the client.
The need for such special authority is indispensable especially for a lawyer who
appears for his client in a court proceeding, so that in case the parties have reached an
amicable settlement, which is allowable during any stage of the proceedings, as long
as the judgment has not yet become final and executory, as in a judgment based on a
compromise agreement, judgment on the pleadings or confession of judgment could
be rendered by the court. But without such special authority from the client the
judgment of the court based on the compromise agreement cannot be enforced it
being null and void. unless ratified thereafter but before the finality of the decision.
G. Most common subject of negotiation
Lawyers play a prominent role in negotiating such real estate matters as: a) closings;
b) coverage of title; c) insurance policies; d) eminent domain awards; e) conflicts
between real estate brokers over sales commissions; f) mortgages; g) real estate
tax adjustments; h) lease terminations; i) tenant relocation and settlement
litigations.
The more money involved. the greater possibility that lawyers will be brought into
negotiations. In settlement negotiations, the more chances of lawyer participation are
increased, the closer the parties get into litigation. Settlement efforts are common in
cases of alleged breach of legal duty, as most clients and many lawyers are strongly
predisposed not to litigate. Many clients are fearful of becoming emotionally
distressed by the uncertainties of trial, and the expense of litigation also encourages
settlement.
The bottomline therefore is, that it is not only beneficial for a client to settle small
claims rather than litigate, but also advantageous to a lawyer who wants to save time
and effort, since the total claim being made less than what it would cost to defend.
For new lawyers who lack experience in court litigation or ability to try cases,
settlement should be urged if they do not want to lose their fees, and possibly their
clients by referrals to qualified and reputable trial lawyers. Settlement is the name of
the game because litigation is time-consuming and takes lawyers away from their
more profitable office practices.
H. Availment of effective negotiation techniques
1. Delay is one of the effective techniques in negotiations designed to increase on the
other side and to act as a deprivation at least before the case reaches the court. Thus
without reaching the brink of unethical practice, a lawyer should prefer to have his
client absent during the process of negotiation if the other side is pressed for time,
because this prevents him from making on-the-spot decisions and enables the lawyer
to always postpone further by saying, “I must consult with my client before giving
you an answer."
Of course, it is the duty of a lawyer to speed up litigation process, but as long as there
is bright hope for settlement, further delay in going to trial, even though the plaintiff
has a good claim, will in the long end redound to the benefit of all parties concerned,
as well as lawyers, as the plaintiff may need money and be willing to take less now
from a settlement than more later from a judgment after protracted hearings with
attendant mental anguish and emotional stress.
i.)
Concealment of facts
Concealment of facts, particularly when the intentions of the bargainer's principal is a
conventional negotiation tactic, and one resorted by lawyer negotiators. It is not
unethical for a lawyer to lawfully conceal from the other side the least favorable terms
that their clients are willing to accept, as long as it is done with the primary purpose of
forestalling the possibility of a court litigation or of abbreviating a court trial already
started. This technique should be distinguished from suppression of evidence in a full
dress trial.
Better results can be realized if a lawyer-negotiator should start negotiations by
making demands extremely favorable to his client, often by tendering proposed
instruments consistently slanted his way. The motive is that if your client is too weak
to hold out for such terms, his subsequent withdrawal will look like concessions
meriting reciprocal concessions by the other side. "We give way; so should you." And
if the other side is uninformed and careless, there may be hope that these extreme
demands will be accepted.
Another approach which a lawyer-negotiator should adopt in order to rake beneficial
results is by not asking for more than you think you can get, thereby developing a
reputation for fair dealing that makes negotiations faster and increases the chances of
getting what you want because of the aura of trustworthiness that this approach
creates.
A relational approach that can yield wondrous results when matters are not doing well,
is that of attempting a shift of negotiations to the final decision maker or someone
close to him, going over the head of the subordinate with whom the negotiator had
been dealing. Lawyers, however, are prohibited by a rather rigorously adherence to
Canons of Professional Ethics, from giving over a fellow lawyer's head to his client.
An alternative negotiation problem that is troublesome to a lawyer is, what he should
do during the course of dealing with the other side and what he should refer back to
the client for decision. The more experience that a lawyer has had with a particular
client, the better he can judge not only what to refer back, but also as to when to make
a big decision, although this will depend largely on the lawyer's discretion. At any
rate, there is nothing wrong with being cautious and make final consultations with the
client especially on matters that will bind the client's wallet.
I. Drafting
Another work load of which the practicing lawyer is constantly kept busy and cannot
persevere without, is the drafting and writing, and revision of written instruments. As
the term is used in the profession, it includes not only the preparation and drafting of
written documents, like deeds of conveyance, every written contract of sale, mort
gages, building contracts of Engineers and Architects, memoranda of agreement for
multi-faced negotiations involving public interest, and every written agreement in the
course of business, including the review and modification by others. A practicing
lawyer may be called upon to draft many kinds of instruments, including originally
phrased documents tailored to a single transaction or series of transactions and
standard forms adaptable to various transactions.
The following are typical of such instruments creating legal rights and non-legal
matters that occupy the day to day activities of the practicing lawyer, as well as
constitute as lucrative sources of his life-blood, to wit:
1. usual contracts and deeds;
2. sales;
3. leases;
4. mortgages;
5. wills;
6. partnership agreement;
7. articles of incorporation;
8. pleadings, compromise agreements;
9. decisions and resolutions;
10. press releases;
11. letters of demand and various kinds of written communication;
12. staff memoranda;
13. advertisements;
14. special powers of attorney;
15. petitions and motions to be filed in appellate courts;
16. appeal briefs;
17. appeal memoranda;
18. letters of administration;
19. letters rogatory:
20. letters of publication.
Documents of these kinds may relate to some crisis involving the client's legal rights,
and it is felt that these rights will be best protected if the lawyer himself does the
drafting. But sometimes the lawyer is called on to draft such documents merely
because he writes well.
(1) Clarity and precision writing
The ability to write with clarity and precision and to anticipate all relevant legal and
factual considerations is a lawyer's skill of high order. Some lawyers consider this
their major skill and with a craftsman's sense of pride and creative mastery, draft
documents carefully shaped to their clients’ individual needs. There are those to
whom a perfect instrument becomes an end in itself. But unless the lawyer drastically
cuts his hourly charges, clients cannot afford the perfect drafting job, even when their
lawn have the patience and competence to do the work of such high caliber.
This is one reason why small-town and neighborhood lawyers in particular, turn out
so much careless, poorly thought and ill adopted written work. Generally, there is not
enough at stake to merit time and charges required for better performance. Drafting is
so time-consuming that some highly paid lawyers even turn it over to their less paid
juniors. Anyway, the need for expensive research work in well-equipped libraries like
the Supreme Court and Court of Appeals, becomes a compelling necessity in the area
of drafting. For routine drafting of court pleadings and customary deeds, the use of
legal forms of reputed authors will suffice without having to entail the trouble and
expense of coming to Manila in the case of small town practitioners. This is the
reason why the subject on legal forms and legal writing have been incorporated into
the model law curriculum in order to train the not so gifted lawyer-to-be in the art of
drafting of legal and non-legal documents.
(2) Gifted document drafter not required
Nevertheless, one does not need to be a gifted writer to be able to draft nearly perfect
document. Even in the drafting of a will which involves highly technical and precise
legal terms to convey the real wishes of the testator, should not be accomplished with
much difficulty as long as it contains the essential requisites and formalities provided
by law. The simpler the language is used, the better and with much facility can the
will be probated, than with the use of high sounding und obscure language which
often confuse the courts and the implementers of the will, other than holographic will.
The better practice is to keep sets of legal and non-legal forms in your private files
consisting of carbon or xerox copies of samples of instruments developed by the
lawyer or his firm in past transactions. For added convenience so as to avoid delay
especially when the lawyer is running against time, is to compile these sample copies
into loose-leaf volumes or in a separate cabinet duly marked in chronological order
within reach, so that when the need arises, you do not have to grope or cram for the
especially when you are preparing for trial.
In real estate draftings, originality should be the primary consideration, although the
format may be patterned after standard legal forms that are defined in the textbooks of
reputed authors. You cannot copy verbatim from the mere skelton format from books
on legal forms, for every transaction involved variable terms and conditions that the
parties may agree upon. The drafting process which usually refers to occasional big
deals, the drafting process usually consists of interlineating and striking out clauses in
printed forms, or assembling lengthy documents by piecing together clauses drawn
from diverse forms, with an occasional sentence rephrased or original clause inserted
into the body of the document.
In fine, negotiation then determines whether or not clauses and conditions depending
on the agreement of the parties, will be added, deleted or revised from the stereo
typed and printed forms, that are usually provided by financing firms especially
banking institutions. Otherwise, should the party to the transaction happens to be a
debtor-borrower, to compel him to affix his signature to the ready-made and printed
form provided by the bank or real estate firm, the contract would be violative of the
caveat against adhesive contracts, or take it or leave contract which is lacking in
mutuality of contracts, hence, the written agreement becomes null and void for lack of
voluntary consent by one contracting party resulting in a vitiated consent which is an
essential element of a bilateral agreement.
By and large, knowledge of available forms and their merits and demerits can be more
important to good draftsmanship than facility at original phrasing. In addition to the
expense and time that forms save, they frequently have the advantage of being known
and acceptable to lawyers and clients on the other side.Thus, precedent has force in
the drafting of legal instruments as it does with judicial decisions of controversies.
II. Litigation
Litigation is the last and crucial aspect in the lawyer's work load. When despite all
avenues and pressure-packed attempts at conciliation and negotiation by the
practicing lawyer have failed, there can be no more alternatives left to protect the
rights and interests of your client except to go to court. That is the purpose for which
courts of law have been organized in a civilized society-to-settle all controversies thru
the medium of confrontational presentation of evidence before a trained sifter of
evidence. This is so because we live under the government of laws, and not of men.
Gone were the days when might is right and the mighty is the law.
Accordingly, the term litigation is frequently used to refer only to proceedings before
courts, but in the following discussion, it is intended to connote a broader meaning.
Here it means proceedings before any tribunal, whether judicial or quasi-judicial or
administrative body vested with jurisdiction to decide issues involving parties who are
entitled to appear before the decision-maker and prosecute their cause. In addition to
matters heard by courts, this includes many of the proceedings before government
administrative agencies and even those before such private adjudicative bodies as
arbitration boards and member disciplinary committees of trade and professional
associations. Under such extended definition, examples can be found that shade off
into negotiation and legislation.
(1) Litigation and negotiation distinguished
In litigation, a third party decides issues involving others; whereas, in negotiation,
parties with conflicting interests seek to resolve or accommodate to them by mutual
agreement among themselves.
The lawyer’s task in litigation vary greatly depending on whether the proceedings are
contested or uncontested. A case is contested as long as each side seriously threatens
to oppose the other before the decision making tribunal. It ordinarily is uncontested if
the defendants default or fail to appear. A large number of Philippine litigation is
uncontested, as the defendants make no move to press their position either through
negotiation or before the tribunal. This is true for instance in many legal separation or
annulment of marriage cases. Frequently, both parties desire that the court terminate
the marriage, thus, the defendant does not oppose proceedings paving a speedy
vehicle to contract a second marriage.
(2) How to proceed effectively in uncontested annulment suits
The issue was featured in the previous edition of this book, and it still is a sound and
effective strategy, now and hereafter that, if a lawyer wants to end the litigation very
quickly in an annulment of marriage suit, all that the parties have got to do is to
arrange thru their counsels for an uncontested litigation (non-contendere). This is
achieved by an out of court understanding that the defendant should not answer the
complaint, from which the court may proceed to calendar the case for hearing during
which the defendant does not appear.
Upon proof of service of notice to the defendant, complainant can then move for
reception of his or her evidence ex-parte which will serve as basis for the court's
decision granting annulment. Of course this practice may appear unethical, bordering
on collusion which the law abhors. There is for example a certain safeguard which
should be observed before a decree of annulment can be issued by the court under
Article 48 of the Civil Code which provides that, “in all cases of annulment or
declaration of absolute nullity of marriage, the court shall order the prosecuting
attorney assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not fabricated or
suppressed.”
There is of course an extra-legal dimension involved in this kind of practice, which
needs the exercise of subtle tact and diplomacy with the public prosecutor not to
interpose objection, and to make a favorable written recommendation to be submitted
to the court, that the situation of the parties is beyond reconciliation. But the quickest
remedy is to persuade the prosecuting attorney not to appear in court anymore, and
upon proof of notice to the prosecutor, counsel for the defendant may now move for
the dismissal of the complaint for lack of interest on the part of complainant.
But the foregoing proceedings realized only with the court's approval, upon
compliance with Article 58 of the Civil Code which provides that, "an action for
legal separation shall in no case be tried before six months shall have elapsed since
the filing of the petition." This provision likewise applies to annulment suits or
petitions for the declaration of absolute nullity of marriage.
The purpose of the law is to afford the spouses a second chance to reconcile, given
that the Family Code of the Philippines is uncompromising on the sanctity of
marriage. The thaw of six months before the court is allowed to hear the case, is
referred to as the cooling-off period which Is intended to give the warring spouses to
contemplate on the atrocious effects of separation, especially as it affects emotionally
their children of tender age, who cannot understand the causes of their parents' quarrel.
It is during these formative years in the minor's adolescent life that the minor who is
caught in the cross fire of a petty or violent fight between their parents, most need
parental guidance and paternal love so necessary for making them emotionally secure
and becoming future law-abiding citizens. Otherwise, they become confused and
insecure with no faint knowledge as to who will take care for their support and
schooling, thus forcing them to turn to generous sugar daddies who could give them
protection and a paltry sum to buy their meals. This is the root cause why female
minors who are products of broken homes, turn to prostitution in order to survive, or
become potential criminals and victims of drug addiction.
Hence, the cooling-off period more often than not, create wonders during which
quarreling spouses are allowed ample time for their passions and personality frictions
to subside and become once more enamoured to each other into giving their marriage
a second try. This is so because our laves on marriage are influenced by Catholic
traditions and belief that marriage is indissoluble and a sacred social institution
designed for the procreation and reproduction of the species according to Divine will,
and not merely for the temporary pleasures of the contracting parties.
(3) Recommended short-cuts to non-contested suits
Insofar as criminal cases are concerned, a recommended shortcut remedy is to enter a
plea of guilty when the imposable penalty for the offense thus charged, does not
exceed prision correctional or not exceeding six (6) years, in which case, the convict
can avail of the benefits of the Probation Law at once upon promulgation of the
decision in on court as long as he does not suffer from the following disqualifications,
such as (a) not having been convicted of subversion or any crime against national
security or the public order, (b) he has not been previously convicted by final
judgment of an offense punished by an imprisonment of not less than one month and
one day and/or fine of not less than two hundred pesos; (c) he has not been once on
probation under the provisions of P.D.968: and (d) that he is already serving sentence
at the time the substantive provisions of P.D. 968 became applicable.
If the accused is on bail, he can avail of his bail bond for his immediate release, or
apply for a recognizance by any responsible person in the community who can
guarantee his appearance whenever the court requires his personal appearance, and
the offended party does not interpose objection, pending the evaluation and approval
of his application for probation by the court.
Suits to quiet title, common real estate title clearing procedures in many Regional
Trial Courts in the provinces are seldom contested. This practice of uncontested
litigation is highly recommended and encouraged where the parties have failed to
agree on the negotiating table. Not only will they be relieved of the anxiety and
emotional stress attendant to a prolonged litigation, but also their litigation expenses
will thus be drastically minimized if not altogether eliminated.
The same procedure may be achieved in settlement of estates of deceased persons,
administration of estates of incompetents and minors. In most cases proceedings
before administrative or quasi-judicial bodies like the Securities and Exchange
Commission, Land Transportation Office, Patent Office, Immigration Bureau,
National Relations Commission, Labor Arbitration Commission, Bureau of Lands,
Bureau of Customs and the Department of Agrarian Reform Adjudications Boards
and the respective Provincial and Regional Adjudicators, among others, end up in
happy compromise agreements thru the unselfish efforts of lawyers who are worth
their salt.
While it is true that success in contested cases help build a good reputation for a trial
lawyer, yet much contested litigations are poorly paid, considering the element of
time that must be spent in preparation, preliminary court appearances, waiting for trial
and the actual trial. In exceptional cases for the purpose of accommodating the best
paying clients, trial work is emotionally stressful and many lawyers dislike it for this
reason.
Besides, another factor that deserves serious thinking is that although in theory courts
exercise independence of the principle of separation of powers, in reality some judges
are vulnerable to political influence and corruption. Some specific instances could
affirm this fact, by the dismissal from the service of Justice Gregory Ong of the
Sandiganbayan, for allegedly fraternizing with the brains of pork barrel scam Janet
Napoles. This is one eye-opener that every practicing lawyer in the country ought to
be aware of and accept as a fact and be prepared to devise a stop gap or remedy either
judicially or extra-judicially, even to the extent of filing a petition for the inhibition of
the Presiding Judge whose actuations are suspect.
There is no use indulging in self- delusion that only thru the merits of the case or the
strength and quality of evidence, can a lawyer win his case in this jurisdiction. Such is
an exception rather than a general rule nowadays. The much rumored close
relationship between the ex-Justice Renato Corona with ex-President Gloria
Macapagal Arroyo, which at first only started as a proverbial smoke but later spread
like wildfire that resulted in the impeachment of Corona, is a grim lesson for
practicing lawyers to be wary with the success of their cause even before the highest
tribunal of the land. So much so that without timely filing by Justice Secretary Leila
de Lima for a hold-departure order, Gloria Macapagal would have left the country in a
hush and thus evaded arrest and detention.
Nor is litigation the only setting in which lawyers should be alert to public relations,
risks and surprises. For example, in negotiating for a client in a strong bargaining
position, the lawyer should calculate the risks to client reputation of striking a hard
bargain. In advising a creditor on remedies against defaulting debtors, he should
consider the dangers that some remedies may make the client appear mercenary and
ruthless. Shaping and guarding his client’s reputation may be part of the lawyer’s job
in most any kind of law practice.
Of overall significance although of minor importance, probably more important in
real estate transactions, than any other phase of lawyer’s work, is participation as
principal in business deals with clients. The lawyers receives a share in the venture
and less financially prosperous the client, the more chances that the client will want
the lawyer to come in. This practice presents an excellent opportunity for making
money, although an arguments may be raised against a lawyer to come in. This
practice presents an excellent opportunity for making money, although an argument
may be raised against a lawyer going in on client deals tat if litigation is likely and he
is expected to conduct such litigation, his financial involvement may contravene the
provision of art 1491 of the Civil Code.
The venture may be fraught with dangers to the lawyer’s profession, but as long as
early safeguards against getting entangled with ethical standard are met, the attendant
risks may well be averred. Most common of these business arrangements between
lawyer and client reap lucrative benefits in favor of the lawyer in terms of attorney’s
fees usually on a contingent basis in sums fatter than what he could realize from court
litigations.
Sometimes, when the client cannot put up an advance payment of the lawyer’s
remuneration, he will be compelled to agree on exorbitant amounts or shares out of
the deals which are unproportionate to the actual services rendered. But as long as
the retainer’s contract does not require for an assignment of the client’s property to
take effect during the pendency of the litigation, there can be no violation off the
lawyer’s oath nor anything unethical with the gargantuan fees, provided they are not
champertous.
News makers with rife facts to backup their reports, are unequivocal that there are
lawyers who act as brokers or estate deals and in connections with these deals seek
financing from present and past clients of their law practice. There is nothing
unethical about these business deals which have no taint of shady or fraudulent
underpinnings. As a matter of fact, most successful practitioners in this country
engage in numerous business transactions and/or make their law offices merely as
forefronts of their huge business ventures. In fact, big law firms and enterprising
lawyers merely appear in court to trumpet their competence in litigation, although
earning relatively modest income from such court appearances and confrontational
hearings, from business deals and out of court settlements realizing fat contingent
fees.
(4) Property Management and Leasing
Considered of lesser lucrative value is a segment in the lawyer’s task especially
patterned for small law firms and solo practitioners, focusing on property
management for clients. These work tasks include leasing, eviction, contract for
repairs, rent collection, arranging for maintenance services and insurance,
payment of taxes and other expenses of clients, and acting as executors and
trustees.
a) Leasing- is a common lawyer’s work task of those who practice law in the Unites
States, but there are also clients here in the United States, but there are also clients
here in the Philippines with enormous real estate holdings which hire the services of
lawyers to effectively manage their properties without incurring considerable loss
both in income, and wasteful payment of taxes as well.
A lawyer who is skilled in this kind of specialization, can save his client from liability
under the rental law, by the employment of appropriate language in the lease contact
to suit the terms and conditions more favorable to clients in the leasing of larger
properties. In the event of litigation arising from the interpretation of contracts of
lease, the job of a lawyer pay more dividends than that of an ordinary layman.
Under our rental law for example, no apartment owner is allowed to increase the
amount of monthly rental of his apartment until beyond 20% annually. Some
practicing lawyers in Manila make a separate contract with their clients providing for
payment of retainer’s fee consisting of 10% goes to the apartment owner. Additional
attorney’s fees shall become due and payable to the lawyers once the lessee defaults
in the payment of rentals the moment the task of collection reaches the hands of the
lawyers. Some lease contacts expressly provide that the moment the collection case
reaches the hands of the lawyer, the tenant becomes liable for the payment of
attorney’s fees consisting of 25% of the total monthly rental. Since most of these
tenants are afraid to face court litigation, they would rather sacrifice paying the
lawyer’s fees, than go to court with the risk of being evicted and incur unnecessary
expenses of litigation.
Accordingly, payment of 25% attorney’s fees coming from the defaulting tenant, to be
added to a separate retainer’s fee coming from the apartment owner, would mean a
comfortable income derived from the lawyer’s job of property management alone.
Should court litigation materialize(s) and reach(es) the court, the court, the lawyer
would still be entitled to the payment of attorney’s fees for not less than P1,000.00 per
court appearance for each ejectment case, plus additional attorney’s fees which the
court may award should the case attain a victory verdict, based on the plaintiff’s
prayer for relief. Assuming therefore, that the client has 100 apartment units all which
have defaulting tenants who have received letters of demand from the lawyer, a
simple arithmetic would show a very lucrative law practice on the part of the lawyer
generated from property leasing. Multiply the foregoing amounts derived from small
claims alone of rental collection, if these fees were based on a larger scale of lease
collection from big landed estates belonging to different property owners like vast
subdivision lots located in Metro Manila and prosperous suburban neighborhood like
Tagaytay City and Taguig City and you will be awe-stricken to know the lawyers of
these vast subdivision lots have become billionaires overnight. The income of a solo
practitioner who is not a reputed trial lawyers but with political clout with the slum
dwellers and started only from backyard piggery to now multimillionaire resort owner
in Batangas province with an air-conditioned piggery, cannot pale into insignificance
compared to the sporadic income of a big-time trial lawyer with multi-floored law
office located at Ayala Avenue.
b) Rent collection and eviction
In a rent collection aspect, whatever technique the lawyer may adopt to make it more
effective and speedier, should be pursued with no let-up. Otherwise, the defaulting
debtor will find a healthy climate to snob demand letters, and eventually frustrate the
collection process by a lackadaisical attitude and prolonged inaction. There is more
than meets the eye in a demand letter signed by a lawyer accompanied by threats of
eviction. A demand letter giving the lessee a specific period within which to comply
at the risk of being dragged into an unlawful detainer suit for failure to comply,
creates a feeling of insecurity and mental torture that can compel the delinquent tenant
to comply and comply speedily. Ut in the case of stubborn tenants, an ultimatum
should be the tenor of the demand letter to comply, in which case the lawyer should
be true to his words in making good his threat by filling an ejectment case in court
upon the refusal of the tenant-lessee to respect the ultimatum, without prejudice to
making your options open for an amicable settlement during any stage of court
proceedings.
Be sure not to commit an error in filing your ejectment complaint with the court of
proper original and exclusive jurisdiction in forcible entry and detainer cases, which
are cognizable by the MeTC and MCTC and MTC. The Statute of Limitation requires
the filling ejectment cases not later than one (1) year from final demand, after which
the next remedy is accion publiciana to recover possession of the property after the
expiration of one (1) year, which is cognizable by the Regional Trial Court. Aside
from the rent-collector lawyer may avail of specific ancillary remedies like
preliminary mandatory injunction and preliminary attachment of the lessee’s
properties, and/or garnishment under Rule 39, Section 9(c ) of the 1997 Rules of Civil
Procedure, to secure payment of the indebtedness. Garnishment, however, may be
availed of only after a favorable judgement has become final and executory.
A certain gray are however in ejectment cases, relates to the procedure of appeal.
While the right to appeal a final judgment of the court is granted by law to the
losing party in an unlawful detainer case, one should not lose sight of the fact
that, the same judgment is immediately executory, unless the defendant has
perfected an appeal to the Regional Trial Court. Under Rule 70 of the Revised
Rules of Court, the appeal is not deemed perfected to stay the execution of the
judgment, unless the defendant complies with the following requisites:
1) posting of supersedeas bond in the amount to be fixed by the court
condition to answer for all loses and damages that plaintiff may suffer
should the judgment be affirmed on appeal;
2) payment of periodic deposits to answer for the reasonable use and
occupation of the premises down to the final judgment by the appellate
court and during the pendency of the appeal, the same amount to be
deposited with the sentencing court.
A problem however poses in the event the posting of supersedeas bond is
delayed, for there are some bonding companies that are difficult to deal with in
this respect. Hence, delay in the posting of supersedeas bond often results in
the immediate execution of the decision by the judgment court, unless the matter is
elevated to the higher court purposely to determine whether delay was really
incurred in the posting of the supersedeas bond. This is one of the dilatory tactics
that lawyers usually avail of, the raising of this issue to the higher court, so that the
controversy shall devolve more on giving priority to the resolution of this
technicality forgetting meanwhile the merits of the case.
A different scenario however obtains in case the defendant is declared in default.
The proper remedy here is not appeal, but to move to vacate the order of default
within one (1) day from the time defendant learns of the default order. If the default
order is not vacated or set aside, defendant loses his standing in court and will no
longer be entitled to any service of notice or copies of court processes except the
default judgment. Once the default order is set aside and vacated, defendant's
personality is again restored, and only from that moment shall he be entitled again to
notice and service of court processes and pleadings.
Should the defendant fail to set aside the default order, there is still one more
remedy left for the defaulting defendant, and that is to file a Petition for Relief under
Rule 38 of the 1997 Rules of Civil Procedure, on the ground of mistake, accident,
fraud or excusable negligence, which shall be substantiated by an affidavit of merit
to be attached as ANNEX to the Petition for Relief (not an affidavit of good faith),
showing facts that constitute as mistake, fraud, accident or excusable negligence.
Without such affidavit of merit, the Petition amounts to pro-forma which the Court
is not bound to entertain, nor the Clerk of Court is duty bound to accept and is
considered not filed. Last but not the least, appeal does not lie from the decision of
the Regional Trial Court in the exercise of its appellate jurisdiction, to the Court of
Appeals in ejectment proceedings, but rather by Petition for Review under Rule 42
within fifteen (15) days from notice of the decision, or denial of the motion for new
trial or reconsideration.
This author is reminded of an embarrassing experience he was confronted with
when he appeared as counsel for the Plaintiff in a foreclosure action filed by PNB
against the Plaintiff before the Regional Trial Court of Antique, Branch 64. In one
instance, when counsel for PNB failed to appear despite due notice, he filed a
motion for reconsideration of the court’s Order allowing the Plaintiff to introduce
his evidence ex parte. PNB’s counsel attached to his motion for reconsideration, an
affidavit of good faith, instead of an Affidavit of Merit, in which he related the
circumstances of how he was prevented from appearing at the scheduled hearing,
alleging mistake and excusable negligence.
Of course, this author had to object not only that the narrative of circumstances
contained in counsel’s Motion did not per se constitute as mistake or accident that
will justify his non-appearance, but above all monstrous procedural aberration
committed by a PNB lawyer is, that his Affidavit of Good Faith is misplaced and
procedurally moribund that should be expunged from the case record. A lawyer of
PNB, a banking institution whose lawyers almost everyday pore over legal
documents that are required for the validity of Chattel Mortgage contracts, among
which is an Affidavit of Good Faith, cannot escape from being called an ignoramus
for attaching such odd document to his motion for reconsideration filed with the
court of law.
c) Effect of perfection of appeal under Rule 41
Still being considered a lawyer’s nightmare including that of the Presiding Judge, is
the effect of perfection of an appeal. But before we proceed further, make no
mistake that the authority to dismiss an appeal on the ground that is frivolous or
taken manifestly for delay, or based on any ground for that matter, is not certainly
within the province of the court a quo, whose decision is in issue but with the
appellate court. Here is another Judge whose name can be added to the ranks of
ignoramus, a bad egg in the rooster of competent arbiters of justice. (Ortigas &
Company limited Partnership vs. Judge Tirso Velasco, 234 SCRA 455)
In keeping with the uniform procedure rule, the perfection of an appeal has the same
effect with respect to appeals from the Municipal Court to the Regional Trial Court
in the exercise of its appellate jurisdiction, as those appeals from the Regional Trial
Court to the Court of Appeals, both of which are governed by the provisions of
Section 9, Rule 41 of the 1997 Rules of Civil Procedure. Under the old Interim Rule,
the trial court loses jurisdiction over the entire case, upon perfection of the appeal by
filing a notice of appeal or upon expiration of the last day to appeal by any party,
and upon approval of the record on appeal, where appeal is taken by record on
appeal (Sec. 20, Interim Rules of Procedure)
On the other hand, under Section 9, Rule 41 of the 1997 Rules of Civil Procedure,
the court does not lose jurisdiction, upon perfection of appeal by notice of appeal or
approval of the record on appeal by any party, filed in due time within the
reglementary period to appeal. In plain, the appeal is deemed perfected only with
respect to the parties who have taken their appeal in due time, but the court a quo
retains jurisdiction over the remaining subject matter not covered by the appeal, and
with respect to the other parties who have not filed a notice of appeal or record on
appeal as the case may be, and who still have pending incidents which are
unresolved by the court a quo.
Simply put and in appropriate cases, the court of origin cannot be deprived of its
power to exercise jurisdiction over matters in the exercise of its residual
jurisdiction, for the "preservation and protection" of the rights of the parties which
do not involve any matter litigated by the appeal. Many pitfalls have been
committed in this area of jurisdiction, that has spawned the deluge of certiorari
proceedings in the Court of Appeals under Rule 65, and thus had dragged a number
of trial court Judges to certiorari Petitions, on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction. In some specific cases where
the Judge a quo had refused to entertain the parties' Motion to approve a
compromise agreement after the perfection of an appeal by notice of appeal but
before the transmittal of the record to the appellate court, thus resulting in the
dismissal of such trial Judges from the service for ignorance of the law, or have
suffered the imposition of administrative sanctions ranging from censure to
suspension for a definite period, including but not limited to forfeiture of retirement
benefits and monthly pension.
“For example, neither can the rest of the parties be deprived of their right to ask
for the execution of the decision pending appeal, nor to move for the approval of
compromise agreements, or to be allowed to litigate as pauper litigant in
meritorious cases. Not mention cases of separate or multiple appeals arising from
counter claims, cross-claims and third party complaints, pertaining to matters
which do not involve any matter litigated by the parties, as long as the original
record of the case has not yet been transmitted to the appellate court.”
Of course, the foregoing prayers made with the court of origin before the
transmittal of the record to the appellate tribunal, must really be premised on an
unequivocal ground, that the overriding purpose is the preservation and protection
of the rights of the parties over matters not involved in the appeal, and not to resolve
incidents that are considered alien to such purpose or whose purpose is to promote
movant's extra-legal claims and remedies.
Fortune Life and General Insurance Co.,
Inc. vs. Court of Appeals
224 SCRA 829
FACTS: This is a Petition for Review on certiorari brought by Petitioner Fortune
Life and General Insurance Co. Inc. to the Supreme Court from the ruling of the
Court of Appeals annulling and setting aside the Orders of the Regional Trial Court
of Manila, in Civil Case No. 85-29991, granting Fortune Life's motion for reception
of evidence on the application for damages against the bond of private respondent
Delsan Transport Lines, Inc. Earlier, the court a quo rendered judgment ordering
Fortune Life to pay Delsan P1,952,302.00 for damages and P50,000.00 for
attorney's fees. On this basis, Delsan filed a motion for execution pending appeal. It
invoked as "good reason" petitioner's alleged fraud and deceit in not informing
respondent Delsan of the latter's change of corporate name. The motion was
supported by a bond in the amount of P500,000.00 answerable in favor of appellant
Fortune Life. Private respondent filed a motion for reconsideration which was
denied by the court a quo. Thereafter, private respondent filed another motion for
reconsideration assailing the trial court's jurisdiction in issuing the questioned orders,
and praying that the records of the case be immediately elevated to the appellate
court pursuant to the notice of appeal filed by Petitioner. Thenceforth, private
respondent filed a petition for certiorari, prohibition and mandamus before
respondent Court of Appeals, seeking to annul the questioned orders, and to compel
the trial court to forward the records to the Court of Appeals, since it has allegedly
lost jurisdiction in view of petitioner’s appeal, to which CA ruled in favour of
private respondent. Hence, this petition under Rule 45.
HELD: The sole issue raised by the petition is upon perfection of petitioner’s appeal
of the trial court’s decision, does said court retain jurisdiction to hear the application
for damages against the bond that was posted in support of private respondent’s
motion for execution pending appeal? There is no controversy that the appeal of
petitioner has been perfected. As a necessary consequence thereof, the trial court was
divested of jurisdiction over the case. Section 9, Rule 41 of the Rules of Court
mentions three (3) instances where the trial court is allowed to exercise residual
jurisdiction, after the perfection of the appeal, namely, (1) to issue orders f or the
preservation and protection of the rights of the parties which do not involve any
matter litigated by the appeal; (2) to approve compromises offered by the parties
prior to the transmittal of the record on appeal to the appellate court, and (3) to
permit the prosecution of pauper’s appeal.
Petitioner relies on the first instance as basis for its stand that the trial court has the
authority to hear its application for damages. Its reliance thereon is misplaced.
Although the application for damages is beyond the scope of the matter litigated by
the appeal, there is no “protection and preservation,” of its right to speak of.
Respondent CA was emphatic in its disquisition on this subject matter: Petitioner’s
application for damages being heard by the respondent court, may not be considered
an exception to Section 9, Rule 41 of the Rules of Court. The provisions speaks of
“protection and preservation” of the rights of the parties which do not involve any
matter litigated by the appeal. The action for damages, in fact, and in actuality,
however, is an act of vindication, is punitive in nature and not an act to protect and
preserve, bit to punish and make one party, the private respondent herein, to pay
damages. The demolition aspect of the decision subject of the writ of execution
pending appeal cannot be implemented without special order for that purpose. The
power to grant or deny a motion for execution is discretionary with the court, unless it
is prevented by an ancillary preliminary injunctive relief.
5) Acting as Executor or Trustee
It is very likely that when a client hires a lawyer to draft his will, he will just as well
appoint the same lawyer to act as executor of said will. He needs no further briefing
and extended and repetitious inquiry of matters which had already been covered by
his first interview of the client. Drafting of wills requires such thorough investigation
and gathering of facts, records, date and documentary evidence, and familiarity with
the nature, kind and extent of the estate of the testator, so much so that it would be
difficult for one who did not participate in the drafting of such will to act as executor
thereof.
So also, the lawyer who drafted the will and had acquired sufficient knowledge and
identification of the testator’s properties and nature of his bounty, should be the
logical person to discharge the task of trustee in the management of the real and
personal properties of the decedent in his fiduciary capacity. With respect to those
large estates and multifaceted business conglomerates that operate complex ventures
involving a wide spectrum of transactions making it difficult for a single individual to
handle, management thereof is better left to the care of banks that specialize in
trusteeship tasks.
A lawyer who drafts and acts as executor of a will should possess a vast knowledge of
the law on wills and succession. He must be conversant about how much portion of
the testator’s estate he is permitted to dispose of by will without encroaching on the
legitimes of compulsory heirs. He should be precise about the specific area and kind
of property of the decedent’s estate that should pertain as aliquot share of each and
every devisee and legatee in order to prevent intestacy.
In the end, every lawyer needs no further enlightenment if how lucrative are the fees
that he can realize from this kind of lawyer’s task. Anyways, much of the lawyer’s
fees depend on how knowledgeable and effective he is in the employment of
appropriate language in the making of a will granting tremendous powers and benefits
to the executor. In some cases the lawyer-executor of a will, even receives more
benefits and share from the decedent’s bounty, than one legitimate heir, especially in
the making of a will granting tremendous powers and benefits to the executor,
especially when the decedent has several heirs and successors in interest. But as long
as the executor does not betray the trust allowed by law unto his fiduciary
responsibility, he will continue to enjoy the goodwill of his client and the courts. And
in order to avoid any charge of maladministration, negligence and/or incompetence,
the executor’s remuneration must be specified in the will which is self-implementing
even without a court’s order.
6) Specialization
Specialization refers to the work task of a practicing lawyer who specializes or has
vast expertise or is highly competent at performing a specific kind of work or practice.
There are lawyers for example who specialize in trial work, a corporation lawyer who
specializes in dealing with legal problems involving corporations, a practicing lawyer
who specializes in insurance cases or legal problems involving insurance.
Specialization may likewise refer to trial lawyers who specialize in a particular field
of law, such as criminal lawyer, a civilist, a practicing lawyer who specializes in
naturalization proceedings, immigration law, patent law, titling of properties, labor
cases, special proceedings like adoption, guardianship, hospitalization of mentally
retarded, agrarian law. Transportation law, tax cases and SEC registration. On the
other hand, a general practitioner refers to a lawyer who engages in general practice
of law, incompatible with specialization, even though there are a few kinds of clients
and causes unacceptable to him.
More specifically, a general practitioner is one who is willing to represent almost any
kind of client in almost any kind of matter if the client will pay the practitioner’s
going rate. All lawyers are blocked out by conflict of interest from taking some legal
matters which may cause impairment or violation of his oath bordering on ethical
grounds. Clients demanding unethical conduct by counsel to pursue an illegal or
immoral course of action should be rejected. Although the yardstick on this area may
sometimes compel the lawyer not to reject the employment where he is appointed by
the court as counsel de oficio in defense of an indigent accused, or any defenseless
detention prisoner who cannot afford to pay the services of a council de parte.
Almost all lawyers who are beginners in the practice of law or have just passed the
bar examinations cannot qualify for the word specialist. Small town and neighborhood
general practitioners with considerable experience, are usually referred to as
specialists in matters that make up the bulk of small town practices: drafting simple
wills, administering decedent estates, conveying real estates, foreclosing mortgages,
obtaining legal separation, annulment of marriages, contracts and titles, defending
personal injury claims, collection cases, preparing small income tax returns, and
defending against criminal charges in lower courts. More often and indiscriminately,
one can be a general practitioner and specialist at the same time. It all depends on the
lawyer’s attitude to take the risk and work hard on the problem confronting him. After
all, the extensively experienced or trained lawyer is not necessarily an able one. Those
who practice in the provinces, none could be classified as a specialist or general
practitioner, as long as the client’s purse is capable of paying the fees agreed upon.
CHAPTER IV
CLINICAL LAWYERING AND COUNSELING
A. Interview of Client
(1) Establish essential elements of attorney client relationship
The initial step a lawyer should start to perform an act constituting as practice of law,
is the establishment of client-lawyer relationship. Until this relationship is clearly
defined and created, rights and obligations that arise between them cannot be invoked
or enforced like the right to payment of attorney’s fees and the right to the mantle of
privileged communication.
The best proof of the existence of client-lawyer relationship is, a written contract of
lease of services or retainer-ship contract. Be as it may, a contract of employment
which creates a lawyer-client relationship may be in any form, whether express or
implied, and whether verbal or written. Once the lawyer has performed an act that
constitutes practice of law, no other proof is required to show its existence expect the
primary evidence of the act itself. But In order to forestall any future misinterpretation
of the authority that the lawyer should exercise especially in the financial aspect, the
lawyer’s renumeration and the extent of contingent fee he is entitled to, a written
contract of employment containing specific terms and conditions is still considered a
must. For when things go wrong or sour, there can be no more humiliating and
embarrassing scene inside the courtroom, than that of a lawyer quarreling with his
client for the collection of attorney’s fees, especially when the client is a balasubas,
in common parlance, or one who has no word of honor.
In the course of interview, the client should be made aware of his responsibilities
towards the lawyer, inter alia:
a.Lawyer is entitled to attorney’s fees
It should be impressed upon the client that the lawyer’s fee is an essential ingredient
and guarantee of a satisfactory service, it being the lawyer’s lifeblood. Although
lawyering is not a mercenary occupation, however, whether as a sheer incentive or to
be regarded as a just wage, it stands to reason that one who has rendered an honest
and appropriate service should be duly compensated.
In Albano vs. Coloma, Adm. Case No. 528, Oct. 11, 1967, it is worth
re-emphasizing here the Supreme Court’s warning that, “Counsel any counsel, who is
worthy of his hire, is entitled to be fully recompensed for his services solely of his
brains and with his skill, acquired at a tremendous cost not only in money but in the
expenditure of time and energy, he is entitled to the protection of any judicial tribunal
against any attempt on the part of a client to escape payment of his fees. It is indeed
ironic if after putting forth the best that it is in him, to secure just ice for the party he
represents, he himself would not get his due. Such an eventuality this Court is
determined avoid. It views with disapproval any and every effort of those benefited by
counsel’s services to deprive him of his hard-earned honorarium. Such an attitude
deserves condemnation.”
“An express valid contract stipulating for the compensation which the attorney is to
receive for his services is generally held conclusive as to the amount of compensation.”
(Rodfish vs Fox 39 Am. Dec. 611; Martin, Legal and Judicial Ethics, p. 170)
“If a lawyer renders valuable services to one who receives the benefits thereat; a
promise to pay reasonable value is presumed unless such services were intended to be
gratuitous. (Young vs. Bruere, supra) The mere absence of an express promise will
not prejudice the lawyer’s right to recover reasonable fees; formal contracts of
employment are not necessary. However, the party sought to be charged must be free
to take as well as reject the benefits of such services. He must have acquiesced
willingly. If the circumstances give him no choice but to accept the benefits of the
lawyer’s services, no implied contract to pay reasonable fees arises. (5 Am. Jur. 352;
7 CJ.S 1041; Martin, Legal and Judicial Ethics, p. 178)
As to the mode of payment for attorney’s fee, the acceptance fee which usually is the
initial payment upon acceptance of the employment may be made in lump sum cash,
or in staggered basis, say 50% down, and the balance payable within a specific period.
The appearance fee of the lawyer may depend upon the mutual understanding
between the lawyer and client. The appearance fee that practicing lawyers usually
charge the client is P 1,000.00 per hearing for appearance before inferior courts, and
P2,000.00 per appearance before Regional Trial Courts. In Metro Manila where
lawyers spend higher representation expenses, the appearance fee per hearing may
range from P2,000.00 to P5,000.00.
(2)
Client cannot dismiss the lawyer at will
The client should be cautioned that while it is his prerogative to terminate the
lawyer’s services, this right is not absolute without the approval of the court which
must first be obtained in a proper proceeding for that purpose. This is especially true
when changing a lawyer occurs in midstream or while the trial is in progress, without
prior notice to the court as to interrupt the hearing abruptly to the prejudice of the
proper administration of justice. Before the client can dismiss the services of the
lawyer, he must file a motion to that effect informing the court that he is substituting
another lawyer for the present one, giving his reasons therefore, to allow the court
reasonable time to reset the hearing, and prevent the witnesses who were subpoenaed
from incurring unnecessary expenses in coming to court only to be bold that the
hearing has been cancelled.
On the other hand, the lawyer may withdraw his services under any of the following
circumstances:
1.When the client pursues an illegal or immoral course of action in connection
with the matter he is handling;
2.When the client insists that the lawyer pursue a conduct violative of these
canons or rules;
3.When his ability to work with co-counsel will not promote the best interest of
the client;
4.When the mental or physical condition of the lawyer renders it difficult for him
to carry out the employment effectively;
5.When the client deliberately fails to pay the fees for the services or fails to
comply with the retainer agreement.
6.Other similar causes.
(3)
Lawyer’s authority to control trial
The lawyer’s authority to control trial should be recognized by the client as limited
only to matters of procedure. The client therefore has the right to question the
lawyer’s authority to choose the proceedings or the legal remedy he will adopt
involving his case,, and the witnesses he is going to present in support of his cause.
Conversely, the client should be honestly apprised, that the lawyer’s authority does
not include the act of releasing a security or extend the time of payment, release a
guarantor, accept a certified check as payment of client’s claim, compromise his
client’s rights or confess judgment, nor enter into stipulation of facts, or to agree on a
judgment based upon the pleadings, without a special authority (special power of
attorney) therefore from the client.
(4)
Interviewing techniques (determine facts)
The technique in interviewing a client should be all-embracing and exhaustive as
possible. A lot of psychology should be applied when sitting face to face with the
client always studying his mannerisms his propensity to prevaricate and twist facts,
and to exaggerate to the extent of even telling the lawyer to adopt his own strategy
and defense. But before allowing him to start with his narration, put him at ease and in
a relaxed mood as possible by telling him that you are his faithful friend who will
stand by him under all circumstances that led to the violation.
Anyway, let him relate spontaneously all that he knows about the case by avoiding a
slight interruption as possible. After he had finished his story, ask him if he has not
forgotten anything, then let him add some more bit parts to his original version. Let hi
understand that all that he is supposed to do is to tell the naked truth, and leave the job
to you as to what theory or defense to adopt. But do not allow him to dictate on what
procedure or theory to follow or course of action to take, because this is a matter of
procedure that falls within the ambit of the lawyer’s authority.
(5)
Be frank and firm to the client
Always expect that there are clients who would deliberately hide the truth from their
lawyers and purposely suggest to pursue a different or illegal course of action in
violation of professional ethics. So that you must always be on guard for this client’s
attitude. In brief, bluntness is the name of the game. Remember that you are the
lawyer, and he is only a client who begs for your help, hence, you are supposed to be
in control of the situation, and be firm to put a stop to his aggressiveness and
naughtiness. You should be blunt with this kind of client by telling him that you do
not need his money if he cannot trust you, hence, he had better look for another
lawyer.
Above all else, give your client stern warnings: that you will not accept a half-truth or
lie, or anything less than the truth: that it is not for him to teach you what to do with
his case in matters of procedure because such is your job.
A new practicing lawyer cannot have any assurance that what his client is telling him
is the truth. Perhaps, with a very few exceptions, but generally he may not be able to
read the mind or even the heart of his client. But as you gain experience through the
years, a lawyer who is really experienced and who dedicates himself to the practice of
his profession should be able to know from experience, from the background, and
from every aspect of practice, when and when not to believe his client.
Anyway, no lawyer should hesitate to tell his client what his impression is about him
after hearing the preliminary details of his story. And this is what the lawyer should
tell the client: “My friend please, I am experienced enough to know you are not telling
me exactly the whole thing. Why don’t we be more frank to each other? In that way, I
can better handle your case.”
From that point, the ordinary lawyer follows up his appeal for frankness and openness
on the part of the client with another remark: “Better tell me the truth and if there is
anything that should be hidden, I will tell you to do it. This may sound a little bit
unorthodox, but as the late Supreme Court Justice Antonio Barredo says: I insist that
cases must go on and off according to what is basically right. No other test is
supposed to depart from this guideline in interviewing clients, since it is our first
function even in the preparation of pleadings to findout what the truth is before
putting it down in writing in addition to simplicity.
(6) Avoid frequent Interruptions
Once the client or witness has started talking, avoid interruption, unless absolutely
necessary to complete a point. Not only will his trend of thought be distracted that
might lead him to forget certain essential points in his story. But frequent
interruptions while the witness is telling his version of the incident might cause the
client or witness to be rattled and confused, such that his narrative will appear
incoherent and disjointed. Worse, you will waste considerable time in making him
repeat his story should he lose track of the details. If you have any questions to ask for
the sake of clarification, ask them after he had finished his narration, and continue to
ask him whether there are incidents which he missed to relate to you and if there are
any then allow him to complete his story.
(7) Conduct your interview in the language that the witness speaks
It is inconceivable how a lawyer will be able to elicit the cold and naked facts from a
witness who cannot understand the language of his own tongue. Except in large law
firms which employ interpreters, a Filipino lawyer who is engaged in a solo practice,
must aside from being articulate in the English language, learn how to communicate
with practically all kinds of dialect that are essentially spoken in the Philippines like
Tagalog, Cebuano, Ilonggo, Ilocano, Kapampangan, and Bicolano, and perhaps
Chavacano which is the dialect being spoken in Zamboanga-. It is not necessary that
he should be a linguist, but it is sufficient that he can drive home his point or be able
to explain in the manner understandable to the witness he is interviewing.
At the end of the interview, make a draft of the wit-ness's story, as much as possible
in typewritten or computerized form if you have a computer machine, and allow him
to read his version as appears on the paper, likewise in the dialect known to the
witness. Thereafter, ask him whether he has related everything as written comprising
his problem, and if there are missing points, make some insertions, revisions and
amendments in your draft before reducing the same into its final form. This is
especially true with respect to affidavits that support a complaint or petitions to be
filed in court or the public Prosecutor's office.
(8) Interview all available witnesses
Since the narration of witnesses shall constitute your evidence in court, not only
should the interview be confined to the client, but to all available witnesses who will
corroborate the client's version. When all the witnesses have told their stories, classify
each according to the importance and probative value of his testimony, by
determining as to who should be put first on the witness stand, who should be
considered the star witness, who should be an expert witness and alternate witness in
case one or some of them become unable to answer the subpoena.
If as a result of your evaluation, the nature of the testimony of a witness is merely
corroborative, his testimony may be dispensed with. So also if the gist of the witness’
testimony had already been testified to extensively and impressively by the client
himself or by another witness, you may decide to do away with his presentation. Since
proof beyond reasonable doubt in a criminal case or preponderance of evidence in a
civil case, is not determined by the number of witnesses you present, but by the
credibility of a witness's testimony — which every practicing lawyer should be
conversant about.
However, an expert witness should not be dispensed with when his testimony is vital
to prove the result of a forensic examination of a handwriting, bullets or slugs
recovered from the scene of the incident, determination of the firearm used in the
commission of the offense, traces of spermatozoa taken from the body of the rape
victim, paraphernalia seized from a drug suspect, determination of whether the
suspect is positive for alcohol or prohibited drug, traces of parts of the human body
like strands of hair recovered from the scene of the crime, skin cut, fingerprints and
footprints that have been photographed or reproduced from the scene of the incident
to be utilized for comparison with the suspect's own physical foot and finger lines,
result of autopsy or medical examination to determine the healing period and gravity
of the wounds inflicted on the victim's body, the trajectory, of the bullet wound —all
of which are crucial to determine whether the proper charge would be consummated,
frustrated or attempted homicide or murder, or serious or less serious or slight
physical injuries.
(9) Trial brief preparation
For a more effective and systematic presentation of evidence in court, the best
practice is to prepare a brief before going to trial. A lot of lawyers, do not pay
attention to this practice, either because they are too busy to attend to such meticulous
job, or they are just lazy. But a good trial lawyer is usually equipped with a trial brief
before appearing in court. But whether you agree or disagree with this statement,
there can be no substitute for a thorough preparation before entering trial. Even the
most brilliant lawyers prepare a trial brief before starting the presentation of evidence
to avoid cramming, or disorganized presentation of evidence, overlapping
presentation of evidence, or simple mistake or failure to present a vital evidence for
lack of a guide or written reminder in front of him.
An eminent jurist once said that, a mediocre lawyer with a thorough preparation and
trial brief during trial, may win a case over his brilliant adversary who lacks
preparation. Of course, there are government prosecutors whose case load makes it
impossible for them to prepare a trial brief for each of the cases they are prosecuting.
This author is talking thru experience as a former Assistant Provincial Fiscal of
Antique, who used to commute from one RTC Branch to another, by asking the trial
Judge in one Branch to defer the hearing until two (2) hours thereafter, because he is
in the thick of evidence presentation before another sala, where the case he is
prosecuting, cannot anymore be moved or reset, because the hearing is scheduled for
the last and final resetting. And considering that the criminal cases that he used to
prosecute for each sala are numbered no less than five (5) cases for each Branch daily,
he did not have time even to interview the witnesses, much less did he have time to
prepare a trial brief before appearing in court. Usually, he had no more time to even
read the affidavits of the witnesses be appearing in court, where he used to start
propounding direct examination of the witness by glancing at witness's affidavit for
the first time. But this routine practice does not assure of any productive results and
may end in the dismissal of the case thru demurrer to evidence.
Anyway, the trial brief should contain a list of witnesses and the order of their
presentation as to which witness is going to testify on this or that document or exhibit.
In criminal cases, it is a better practice to present first the star witness, who is an
eyewitness to the commission of the crime. There is danger in the presentation of the
star witness as the last witness, because in the event said witness dies during the
pendency of the case in court, or would be kidnapped or bribed by the defendant, you
will have lost the testimony of a witnesses considered so vital and irreplaceable.
(10) Determine client's needs and priorities
Interviewing techniques must cover questions involving the client's priorities and
needs that produce quick results, as well as for his/her future protection and benefits.
Marriage problems are the most common priorities of not only a female, but also of
male client as well. The lawyer therefore must possess a vast knowledge of our
procedural laws and be able to define to his client the remedy on the first interview,
and be able to define to his client the appropriate remedy to his/her problem. For
example a client comes to you complaining that she cannot anymore withstand her
husband's jealousy, his excessive dependence on his parents in making family
decisions especially in the performance of his man obligations, his continued neglect
and refusal to support to her and their only child who lives with the mother-in-law, his
habitual drunkenness and alcoholism that drives him to violence and beating her
whenever he comes home at night — all of which appear to be valid grounds for
initiating a complaint for marriage annulment on the ground of psychological
incapacity.
Under the surrounding circumstances, the client's first priority seems to be that of
gaining custody of their minor child who lives with the husband's parents. Otherwise,
the child-minor would be deprived of the most essential need for parental care and
guidance so indispensable for his health and growth, both physically and mentally
during his formative years. But since the child is more than seven (7) years of age,
hence, under the Family Code, the welfare of the child should be the paramount
consideration in an action for custody of the minor. For minors of this age, a Petition
for habeas corpus appears to be the quickest relief to regain custody of the child.
However, should habeas corpus proceeding be unable to elicit favorable judgment
from the court, then an action for the custody of the minor could be the second best
alternative with prayer for support pendente lite and damages.
However, if the client-wife prefers an early dissolution of her marriage so that she can
contract a second marriage, then the proper remedy would be to file an action for
annulment of marriage on the ground of psychological incapacity with prayer for
damages under Article 36 of the Family Code (R.A. No. 209). Much better if the
husband is found to be maintaining a mistress in the light of incontestable and
incontrovertible evidence, hence, the most appropriate remedy would be to file an
action to declare the absolute nullity of her marriage, so that she can contract a second
marriage once the first marriage is dissolved.
The lawyer should be well aware about the intricacies in obtaining an annulment
decree from the court which takes a longer time. This is so because under Art. 48 of
the Family Code of the Philippines, the court will still order the public prosecutor
assigned to his sala to conduct an investigation and to appear for the State to see to it
that no collusion exists between the parties, and that the evidence is not fabricated or
suppressed.
The public prosecutor therefore is burdened with the task to summon the parties and
conduct a thorough investigation for this purpose, and only after being convinced that
there is no collusion between the warring couple, should he make a recommendation
to the court by way of comment whether to grant or deny the Petitioner’s prayer for
annulment of her marriage on the ground of psychological incapacity. How long a
time is the public prosecutor allowed to terminate his investigation, will depend upon
the discretion of the court to set a definite period for the prosecutor to finish his
investigation, without prejudice to his asking for an extension on valid grounds.
Potential claims and ancillary remedies:
a) in the first case, aside from filing a complaint for annulment, habeas corpus,
petition may be instituted to regain custody of the minor;
b) a separate action for custody of the minor may be availed of;
c) prayer for support pendente lite may be consolidated in an action for
custody of the minor;
d) prayer for award of moral, compensatory and consequential damages may
be availed of;
e) prayer for the issuance of a TRO commanding the defendant husband from
visiting the minor once custody is awarded by the court to the wife.
There are two conflicting doctrines which have become landmark jurisprudence for
annulment of marriage on the ground of psychological incapacity.
In Chi Ming Tsoi vs. Court of Appeals, et al., G.R. No. 119190, January 19, 1997,
which was then the talk of the town and among legal circles, where the Supreme
Court has spoken more in keeping with Filipino traits and moral values, and still is
regarded as prevailing and sound doctrine, more than the labyrinthian doctrine penned
down by former S.C. Chief Justice Artemio Panganiban, in Republic vs. Court of
Appeals and Roridel Olaviano Molina, G. R. No. 108763, February 13, 1997. Mr.
Justice Justo P. Torres who is the ponente of the Chi Ming Tsoi doctrine, had
dignified the basic purpose of marriage.
The Chi Ming Tsoi ruling further elaborated that the basic purpose of marriage is
procreation and multiplication of the species, over and above all considerations that
are dictated by law. For a more vivid and full comprehension of psychological
incapacity as a ground for marriage annulment, and in order to guide the virgin law
practitioner into arriving at a correct evaluation and determination of whether or not
the theory of psychological incapacity will prosper, the following findings of the high
court as culled from the obiter of Chi Ming Choi, relates as follows:
“after the celebration of their marriage, the spouses slept together on the same
bed in the same room at the house of the defendant’s mother in Makati; that contrary
to her exceptions, that as newlyweds, they were supposed to enjoy making love or
having sexual intercourse with each other, defendant (husband) just went to bed, slept
on one side thereof, then turned his back and went to sleep. There was no sexual
intercourse between them during their first night. The same thing happened on the
second, third and fourth nights. Instead of spending their honeymoon in private place
so that they can enjoy their first week as husband and wife they went to Baguio
together with Petitioner’s mother, nephew and uncle whom petitioner had invited to
join them. There was no sexual intercourse during their four (4) days stay in Baguio
City, since defendant avoided her by taking a long walk during siesta time or by just
sleeping in a rocking chair. They slept together in the same room and bed since May
22, 1988 until March 15, 1989, but during this period there was no attempt of sexual
intercourse between them and she did not even see her husband’s private parts nor did
he se hers. In plain, defendant is impotent, as closet homosexual as he did not show
his penis. Defendant was using eyebrow pencil and sometimes the cleansing cream of
his mother. The result of the medical examination revealed that respondent wife is
healthy, normal and still a virgin.”
In his copious discourse on marital obligations between husband and wife, the
ponente stressed that,
“husband and wife are obliged to live together, observe mutual love, respect and
fidelity, bound only by the sanction of spontaneous, mutual affection between
husband and wife and not any legal mandate or court order.” (Cuaderno vs. Cuaderno,
120 Phil. 1298)
“Love is useless unless it is shared with another. Indeed, no man is an island: the
cruelest act of a partner in marriage, is to say “I could not have cared less.” This is so
because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In
the natural order, it is sexual intimacy which brings spouses wholeness and oneness.
Sexual intimacy is a gift and participation in the mystery of creation. It is a function
which enlivens the hope of procreation and ensures the continuation of family
relations. x x x Marital union is a two-way process. An expressive interest in each
other’s feelings at a time it is needed by the other can go a long way in deepening the
marital relationship. Marriage is definitely not for children, but for two consenting
adults who view the relationship with love amor gignit, amorem, respect, sacrifice
and a continuing commitment to compromise, conscious of its value as a sublime
institution.”
“Evidently, one of the essential marital obligations under the Family Code is to
procreate children based on universal principle that procreation of children through
sexual cooperation is the basic end of marriage. Constant non-fulfillment of this
obligation will finally destroy the integrity or wholeness of marriage. In the case at
bar, the senseless and protracted refusal of one of the parties to fulfill the above
marital obligation is equivalent to psychological incapacity.”
In a round-about and hypocritical doctrine, in Republic vs, CA & Roridel Olaviano
Molina, G.R. No. 108763, February 13, 1997, however, which makes it difficult for a
frustrated husband or wife to extricate himself/herself out of a loveless and
make-believe kind of marriage relationship, the high court thru Justice Artemio
Panganiban, imposed certain high-tech grounds and pre-requisites, that make
annulment based on psychological incapacity almost like passing through the eye of a
needle. Instead of upholding the basic purpose of marriage which is procreation, the
Panganiban doctrine, makes the marriage of a fertile woman with closet homosexual
and impotent, a scorching hell on earth.
For example, how can a distressed wife whose first priority in contracting such
marriage was to procreate children, so that when she becomes old her siblings will
take care of her, if all her times that should be devoted to love-making, will have been
spent already submitting herself to the following rigid tests and examinations, that
before saying her “I do” she is already exhausted and dead tired of complying with
such requirements, to wit:
1. she must first obtain a certification from the Solicitor General stating her
agreement or opposition without which no decision shall be handed down by the trial
court; in addition, she should prove:
2. the root cause of the psychological incapacity which must be:
a)
clinically and medically identified (this requires submission to clinical
examination by a medical specialist who has a special training and
learning on mental afflictions, like the finding of a neurologist which
requires payment of consultation fee and brain examinations as brain
scan and psychological and neurological tests which will take months
to finish, depending on how lucrative and fast the payment of his fees;
b)
this finding of a neurologist must be alleged in the complaint;
c)
sufficiently proven by experts (neurologists and psychiatrists) which
means that a preliminary hearing must be conducted in court during
which said neurologist and psychiatrist must testify to prove his/her
findings; this means another drain from her pocket substantial amount
of money in payment for attorney’s fees who will conduct a direct
examination of this expert witness (neurologist and psychiatrist) aside
from incurring extra expenses for the professional fees of these mental
experts;
d)
these findings of an expert witness (neurologist and psychiatrist) must
be clearly explained in the decision;
3. the incapacity must be proven to be existing at the time of the celebration
of the marriage. The evidence must show that the illness was existing when the
parties exchanged their “I do’s”. The manifestation of illness need not to be
perceivable at such time, but the illness itself must have attached at such moment
or prior thereto;
4. such incapacity must also he shown to be medically and clinically
permanent and incurable. Such incurability may be absolute or even relative only
in regard to the other spouse, not necessarily absolutely against everyone of the
same sex x x x;
5. such illness must be shown as downright incapacity or inability, not refusal,
neglect or difficulty, much less ill will.
In the light of the foregoing uphill and stringent requirements imposed by the Molina
doctrine, it is the author’s humble submission that such monstrous doctrine written by
the so-called high-brow but incompassionate dispenser of justice, is intrinsically
unrealistic and unreasonable, and has reduced the ground of psychological incapacity
for marriage annulment inutile and toothless. Instead of minimizing the problem of
the Plaintiff, it has all the more aggravated her financial and mental hardships, she had
better indulge in illicit sex or illicit relationship with her paramour. To secure the
services of a neurologist or psychiatrist alone who will testify as to the psychological
condition of the future partner or fiancée, which commands a professional fee of no
less than P50,000.00 under the present standards of medical specialists, already poses
an insurmountable stumbling block to the success of the annulment suit on the part of
the complainant who merely earns a substandard wage or salary, or who could hardly
afford to pay her lawyer’s fees and professional fees of mental experts, since an
annulment suit can be classified as a kind of elitist suit of the rich and the famous, that
cannot be considered an indigent suit or which falls within the ambit of pro bono
litigation.
Despite her haste to extricate herself very quickly out of an internal and farcical
marriage relationship where sexual intimacy that enlivens the hope of procreation and
ensures the continuation of family relations, she will have enmeshed herself into a
financial problem that will compel her to run assets and making her a destitute.
Indeed, as law mentor and author of legal writings, this author commiserates with the
majority opinion in Molina case, for being a bigoted and inhuman species of judicial
legislation that defeats the sanctity of marriage vows and encourages illicit
relationships. Least of all, the Molina ruling that has downgraded the wisdom and
realistic philosophy of the Chi Ming Tsoi doctrine,whish has dignified the purpose of
marriage relationship, is anathema to procreation which is the basic purpose of
marriage, by forcing two consenting adults to stick together thru thick or thin, to the
extent of depriving themselves of the essential ingredient of love-making, because one
them is impotent, thru the compulsive mandate of the law or court order that is loaded
with unconscionable and insurmountable caveats and is outlawed in Cuaderno vs.
Cuaderno, 120 Phil. 1298)
In the case of a philandering wife, the potential claims are:
1.)Principal action for annulment of marriage on the ground of psychological
incapacity;
2.) Action for custody of minor children in her custody for being an incompetent
and scandalous mother;
3.)Habeas corpus Petition to regain custody of the minor children; and
4.)Prayer for moral damages, compensatory and consequential damages,
attorney’s fees and costs;
On the part of defendant wife, the following remedies, defenses and counterclaims
may be availed of —
1)defense of sexual impotency and refusal to give support, lack of love and
attention of a concerned husband bordering on abandonment;
2)defense that plaintiff-husband is incompetent to attend to the welfare of the
children, hence, to gain custody of them;
3)permissive counterclaim of support pendent lite and thereafter up to the
dissolution of marriage (declaration of absolute nullity of marriage);
4)counterclaim for award of actual, moral and consequential damages; and
5)counterclaim for payment of attorney’s fees and costs.
In another hypothetical case, a client hired your services with a complaint that her son
is a victim of vehicular accident, as a consequence of which he sustained serious
physical injuries causing his hospitalization for more than one year. When he was
discharged from the hospital, the child became a mental retardate. A computation of
all expenses incurred including payment for the services of a physician yielded a total
of P1 million pesos;
The potential claims and legal remedies in the foregoing case, would include the
following:
1)criminal action against the erring driver for the purpose of securing conviction
to hold employer subsidiary liable under Art. 103 of the Revised Penal Code;
2)action for quasi-delict under Arts. 2176, 2180, 2184 of the Civil Code;
3)Prosecution under Art. 263, RPC;
4)direct independent civil action for damages against the employer of the erring
driver;
5)provisional remedy of attachment against the employer’s properties; and
6)motion to suspend criminal case before government prosecutor’s office, on the
ground of pendency of prejudicial question in a pending civil action for damages
against the employer-owner of the vehicle.
As to defenses in vehicular cases
1)defense that offended party is guilty of contributory negligence;
2)defense that the erring driver exercised the diligence of good father of a family
to avoid accident;
3)defense that erring driver-accused exercised that last clear chance to avoid
hitting the victim;
4)defense that offended party was at fault, in that he was one who bumped on the
vehicle instead of the other way around;
5)motion for dissolution of attachment in case one is issued on employer’s
property by filing a counter-bond which should be filed simultaneously with the filing
of a motion to quash the attachment order; and
6)defense that the employer exercised diligence in the selection and supervision
of his employee-driver.
(11) Amicable settlement still the best alternative
Even if an action has been filed and remains pending in court, there is no legal
impediment for the parties to forge an amicable settlement of the case during any
stage of the proceedings. And even if the parties have already formally offered their
evidence and a judgment has been rendered by the court, as long as it has not yet
become final and executory, the parties could still enter in to an out of court
settlement from which the court’s judgment shall be adopted, subject to the court’s
approval. In fact, this alternative recourse is being encouraged by the courts to avoid
prolonged litigations, by the parties’ filing of dilatory and frivolous motions in the
appellate courts that cause further delay in the disposal of the case from the court’s
docket.
Once a compromise agreement has been signed by the parties litigants and approved
by the court, “a compromise agreement is binding and has a force of law between
the parties, unless the consent of a party is vitiated — such as by mistake, fraud ,
violence, intimidation or undue influence — or when there is forgery, or if the terms
or the settlement are so palpably unconscionable.” (Clark development Corporation
vs. Mondragon Leisure and Resorts Corporation, 517 SCRA 203)
“It is a sound policy for the Court to favor and encourage litigants to settle their
controversies extrajudicially where the same is possible and lawful, not only because
it minimizes the expenses and troubles a litigation usually entails, but also due to the
fact that in most cases, such agreement redounds to the benefit of both parties and
results in their mutual satisfaction.” (Nieto Jr. vs. Court of Appeals, 529 SCRA 285)
Lawyers who by virtue of their lawyer’s oath have a commitment to serve both the
rich and poor alike, should strive to cast away that brand of being mercenaries who
are interested in money alone, and instead sacrifice part of their valuable time and
attorney’s fees in the service of the destitute and pauper litigants, or to invest some of
their time in civic undertakings and charitable works.
(12) Analysis and development of theory
As soon as you are through with the interview of witnesses including the client, and
upon your evaluation and analysis of the facts as narrated by them, you can build a
court-bound case, and a valid cause of action or defense can be drawn from their
versions, you may now proceed to research on the provisions of the substantial and
procedural laws that are applicable. Do not be contented with one reading, but read
and reread many times the legal provisions that support your theory on the basis of the
versions of the witnesses.
Analyze the facts on the basis of the stories as told by the witnesses, in relation to the
applicable provisions, then check and counter-check whether your theory will prosper
by availing of the remedies and/or defenses under the Rules of Court that will produce
the desired result. Study further and read some past and recent jurisprudence
promulgated by the Supreme Court and other Federal Courts in the United States that
find application to the facts as related by the witnesses.
Research of applicable jurisprudence may extend to the following references:
1.
2.
3.
4.
5.
6.
Philippine Supreme Court decisions;
Philippine Reports;
Supreme Court Reports Annotated (SCRA);
Corpus Juris Secundum;
Treatises and legal writings of renowned writers;
Law textbooks;
7.
8.
9.
10.
11.
12.
13.
14.
Rules of Court; Interim Rules of Court; 1997 Rules of Civil Procedure;
Revised Rules of Criminal Procedure;
Civil Code of the Philippines (R.A. No. 386);
Family Code of the Philippines (R.A. No. 209);
Revised Penal Code (Codal and Annotated);
Court of Appeals decisions;
Opinions of the Secretary of Justice;
Lectures of legal authorities culled from Workshops and Seminars
conducted by the U.P. Law Center on continuing legal education;
15. Administrative Orders and regulations of the DAR and Department of
Labor;
(13)
Theory of the case development
Theory of the case has been defined as the particular line of reasoning of either party
to suit and aim to bring together certain facts of the case in a logical consequence and
correlate them in such a manner as to produce in the mind a definite result or
conclusion that the advocate believes entitles him to the court judgment or decree in
the face of such conclusion based on certain principles of law. The theory thus
constructed lies at the very foundation of the case. Not only must the pleadings be
drawn in accordance therewith, but the introduction of evidence and the arguments
must strictly follow the theory and be governed by it. And the theory of the case does
not end in the trial court. It must be faithfully adhered to on appeal.
For once a theory has been formulated as set forth in the pleading, you are no longer
allowed to change it and you are bound by it and all allegations in your pleading up to
the termination of the case. Pleadings may be amended once as a matter of right
before service of a responsive pleading is permitted, and before the action is placed in
the trial calendar, and thereafter by leave of court. But this leave of court may be
refused by the court if the theory or defense is substantially altered. (Rule 10, Sec. 2
and Rules of Court)
Hence, the theory or defense in a case must remain constant up to the termination of
the case, the termination ere means the end of all proceedings not only in the trial
stage, but also in the appeal stage of review by the appellate court.
(14)Hypothetical Case
A, borrowed a sum of money from B in the amount of P100,000.00, and to secure the
payment of the loan, A executed a document titled Deed of Sale with Right of
Repurchase in favor of B, over his property consisting of a parcel of Riceland with an
area of five (5) hectares, a first class Riceland which is irrigated. The term of the loan
is one (1) year from the execution of the contract. The execution of the document was
accompanied by a surrender of a certificate of title, TCT No. 31990 in favor of B,
who immediately went to the Office of the Register of Deeds to register the
encumbrance. Upon failure of A to pay the loan after the lapse of one year, B had the
title to the property consolidated in his name; But when B demanded of A to vacate
the premises, the latter refused to vacate, at the same time asked B to allow A to
return the amount within one (1) month. B did not agree, and instead filed a complaint
with the Regional Trial Court for recovery of Ownership and Possession of the
property offered as collateral for the loan subject of the pacto de retro sale.
A went to you and hired your services to counter B’s action for recovery of
possession and ownership of the encumbered land. What would be your theory and
defense to tracerse B’s cause of action?
At first blush, based on the allegations of B’s initiatory pleading, the transaction is
really that of pacto de retro sale the terms and conditions of which are expressly
spelled out in not only from the tenor of the document that A had executed in favor of
B. Nevertheless, upon a deeper evaluation of the surrounding circumstances and from
the testimony of A which appears to be credible, although she was compelled to
execute that document entitled Deed of Sale with Right of Repurchase, her real
intention was simply to borrow money from B to answer a temporary financial
difficulty. But since she is unschooled, she did not understand quite well that B was
going to consolidate the title to her land upon default of payment for the loan in a
paltry amount of P100,000.00, considering that the price of a first class and irrigated
Riceland which she offered as collateral, runs up to P300,000.00 per hectare at the
time of the transaction. Hence, her five (5) hectare ricefield would command a price
up to P1,500,000.00 in the market, although that is farthest from her intention to part
with the land which she inherited from her late mother. Besides, the amount of
P100,000.00 which is the consideration of the purported pacto de retro sale is grossly
disproportionate to the actual value of the property offered as security for the loan.
As counsel for A, what would be your theory and defense in your responsive pleading?
The most appropriate refutation and defense here, is the theory of equitable mortgage
under Article 1602 of the Civil Code which provides:
“The contract shall be presumed to be an equitable mortgage in any of the
following cases:
1) When the price of the sale with right of repurchase is unusually
inadequate;
2) When the vendor remains in possession as lessee or otherwise;
3) x x x
4) x x x
5) x x x
6) In any other case, where it may be fairly inferred that the real intention of
the parties is that the transaction shall secure the payment of a debt or the
performance of any other obligation.”
Verily, the afore-narrated case is an actual litigation before the Regional Trial Court
of Antique, Branch 10, that this author had incidentally handled and bore the brunt of
saving defendant from the fangs of a ruthless usurer. Although a case of pro bono
because his client was an indigent litigant, this author was however unmindful that
plaintiff’s counsel was a veteran practitioner, a former Congressman and retired RTC
Judge. He also was aware that the taste of the pudding is proved not in the icing, but
in the eating. Nevertheless, even as his client was indigent, she was raising a herd of
ducks, hence, the client out of gratitude, was generous enough to reciprocate with one
basket full of duck’s eggs.
Here, the late Presiding Judge hon. Roberto Zurbano from Camarines Norte, was in
concord with this author’s theory of equitable mortgage, based on the unrefuted
testimony of defendant A, that the current price of an irrigated Riceland at the time
which is located in the heart center of rice yielding area of San Jose Buenavista, was
P300,000.00 per hectare. Thus, the P100,000.00 that Plaintiff B loaned to the
defendant, was evidently and unusually inadequate for a five (5) hectare Riceland.
This, plus A’s spontaneous declaration that she had remained, and in fact adamantly
resisted Plaintiff’ attemots to jtake physical possession of the property from her with
the aid of armed men, since her real intention was merely to offer her land as
collateral to secure payment of her indebtedness to B, and not to sell the land a retro.
Accordingly, the court granted all the reliefs prayed for in A’s answer, ordering
Plaintiff B to surrender the certificate of title to the Register of Deeds, who in effect
cancelled the consolidated certificate of title in the name of B, and issued a new
transfer certificate of title in the name of defendant A, likewise ordering the Plaintiff
to pay defendant attorney’s fees in the measly sum of P200.00, an to pay the costs of
the suit. In turn, the defendant was ordered to return to the Plaintiff the amount of
P100,000.00 in staggered sums of P20,000.00 per month with legal interest per annum,
on the principle of equity that no one, much less the victorious defendant shall enrich
herself at the expense of another.
(15)Suggested effective theories in criminal cases
As accused’s counsel in a prosecution for homicide, for example, you may adopt
either the theory of self-defense, whether complete or incomplete self-defense, mistake
of identity, insanity, minority of the offender or alibi, depending on the strength of
your client’s evidence, vis-à-vis a fair and honest evaluation of the weight of
prosecution evidence as can be gleaned from the pleadings, and as reflected from
complainant’s judicial affidavit.
In the forecast of prosecution evidence, it should be borne in mind that the
prosecution is burdened to rely on the strength of its own evidence, and not on the
weakness of the defense. Nevertheless, the defense theory should find support from
the competency and credibility of its witnesses, and the effectiveness of counsel’s
presentation of evidence. A wrong or sloppy manner of laying out a theory on a
pleading and the inept presentation of evidence by an incompetent defense lawyer
may yet be demolished by an able prosecutor on rebuttal.
If perchance you believe that the evidence of the prosecution is overwhelmingly
strong, then the best stratagem is to avail of the incomplete self-defense theory. It is
called incomplete self-defense because all the elements that justify the killing are
lacking, the effect of which when proved, shall reduce the penalty prescribed by law,
from one to two degrees lower. If all the elements or circumstances that justify the act
of killing are present then the accused shall be absolved of criminal liability and
should be acquitted, in which case, the theory becomes complete self-defense.
This theory or defense aforestated, applies in the defense of the person or rights of
one's spouse, ascendants, descendants or legitimate natural or adopted brothers or
sisters, of his relatives by affinity in the same degrees, and those by consanguinity
within the fourth civil degree, Provided: That the first and second circumstances are
present, and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.
So also, this theory or defense applies to anyone who acts in defense of the person or
rights of a stranger, provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending be not induced
by revenge, resentment or other evil motive. (Sections I, 2 and 3, Art. 11, Revised
Penal Code)
"Art. 11. Justifying circumstances.—The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights provided that the
following circumstances concur:
First: Unlawful aggression;
Second: Reasonable necessity of the means employed to prevent or
repel it;
Third: Lack of sufficient provocation on the part of the person
defending himself."
This procedure is carried out by moving in open court that you will be allowed to
present evidence to prove that the accused in killing the deceased, had acted in
defense of his person to repel the aggression of the deceased, without which accused's
able defense of his person or rights, the deceased could have killed him. In proving
this theory and defense, you have to put the accused on the witness stand, to elicit
from his own mouth the facts and circumstances (direct evidence), that enabled him to
defend himself and prevent the deceased from killing him. Better still, if prior to
putting the accused on the witness stand and other corroborating witnesses if any, a
son of tact and diplomacy may be resorted to by making preliminary and out of court
arrangement with the Presiding Judge and the public prosecutor, by your ability' of
persuasion, without bowing too low or doing some acts that border on unethical, so as
not to encounter stiff opposition or objections from the public prosecutor. These are
often referred to as extra-legal remedies that are not found from textbooks, nor
statutes and Administrative Circulars of the Supreme Court, but by the exercise of
some extra-effort on the pan of an ingenious practicing lawyer who knows which side
of his bread is buttered. This kind of practice resulting in a favorable verdict for the
accused adds to the reputation of a practicing lawyer who wants to excel from his
peers, and most assuredly will attract more clients.
To illustrate how this theory works, the following are abbreviated highlights of coun
proceeding:
In a charge for homicide against A, upon arraignment, A entered a conditional
plea of guilty to the crime as charged in the information, on his lawyer’s advice, on
condition that he be allowed to introduce evidence to prove that he acted in
self-defense in killing the deceased. This will be followed by a manifestation from his
counsel, as follows:
Counsel: Your Honor, may we be allowed to put the accused A on the
witness stand for the purpose of proving that he acted in defense of his person in
killing the deceased?"
“Court: Proceed."
After asking the accused some preliminary questions for the purpose of
establishing jurisdictional facts, defense counsel propounded the following questions
on accused B:
“Counsel: With the permission of this Honorable Court."
“Court: Proceed."
“Counsel: “Mr. A, on the night of December 2011, you said you had a
drinking spree with the deceased B, together with two other companions, C and D,
at the store of Enriqueta Ruiz located along the national road inside the poblacion
of Pototan, Iloilo. What were you drinking with the deceased?
“Accused: We started by finishing one long neck of Tanduay Rhum, all of
which we were able to consume."
“Counsel: What happened if any after you have finished drinking the two (2)
bottles of Rhum?"
“Accused: B challenged me to a fight, telling me that he has an ax to grind
for having insulted him, and without much ado immediately drew his balisong
from his hip, and stabbed me with his balisong but did not hit me, because 1 was
quick to parry the blow;
“Counsel: When B was not able to hit you, what happened if any?
“Accused: 1 picked up a piece of wood nearby about the size of my arm with
the intention to defend myself from further aggression, but before B could make
another strike of his balisong, I hit him hard on the forehead with the wood
causing him to fall to the ground.
“Counsel: What else happened after B fell to the ground?
“Accused: B attempted to rise but he could not as he fell back to the ground,
unable to reach his balisong. So my three companions in that drinking spree
loaded him on a tricycle, brought him to the emergency clinic across the road, but
was pronounced DOA (dead on arrival).
“Court: Cross?
“Prosecutor: No cross your Honor. Based on the foregoing straightforward
testimony of the accused, at least two (2) justifying circumstances are present in
the act of defending himself from B’s aggression, namely, a) that there was
unlawful aggression on the part of deceased B; and (b): there was reasonable
necessity of the means employed, that is, a piece of wood that A used in hitting B
with one fatal blow, as against a deadly balisong. Even the third element of lack
of sufficient provocation on the pan of the person defending himself, is also
obvious from the version of accused B, which would have justified the killing.
But as A had earlier entered a plea of guilty, this third circumstance can be
prayed to satisfy the third circumstance of lack of provocation on the pan of the
accused.
It would have been a happy gamble that could have resulted in A’s outright acquittal,
had A and his counsel tried to speculate on the theory of complete self-defense. But
the point in A’s counsel mind of having adopted a theory of incomplete self-defense is,
the assurance of a favorable verdict, that entitled the accused to the lowering of the
penalty from one to two degrees lower than that imposed by law.
Under Art. 249 of the Revised Penal Code, the penalty imposed for Homicide is
reclusion temporal which is imprisonment of from 12 years and 1 day to 20 years.
Since accused A is entitled to a lower penalty by two degrees than reclusion temporal,
considering that based on the uncontroverted evidence of accused, he could be
credited with not only two but three justifying circumstances, including lack of
sufficient provocation on the part of the person defending himself under An. 11, RPG
Hence, two (2) degrees lower than reclusion temporal, is prision correccional which
ranges from 6 months and 1 day to 6 years. Since A is qualified to enjoy the benefits
of the probation law which entitles the accused to probation when the penalty does not
exceed six (6) years, A, could be released at once from preventive detention upon
promulgation of the decision on the strength of a recognizance by any responsible
person in the community who could guarantee his appearance whenever the court
requires his appearance, pending submission of post-sentence investigation: to the
court by the probation officer.
(16)Investigation during the pendency of an action
a) Ocular Inspection
Under Rule 27 of the Rules of Court, there are modes of discover)' that a litigant may
avail of and provide immeasurable aid to the Court in the adjudication of the case
speedier, thus:
“Upon motion of any party showing good cause therefore, and upon notice to
all other parties, the court in which an action is pending may:
1. Order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects, or tangible
things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or
control.
In Santiago Land Development Corp, vs. Court of Appeals, et al.,
G.R. No. 106194, Jan. 28, 1997, it was ruled that since the petitioner did
not have the right to intervene, it did not have the right to file
interrogatories or seek the production of documents by private
respondents either; or
2. Order any party to permit entry upon designated land or other property
in his possession or control for the purpose of inspecting, measuring,
surveying or photographing the property or any designated relevant object or
operation thereto. The order shall specify the time, place, and manner of
making the inspection and taking copies and photographs, and may prescribe
such terms and conditions as are just."
Inversely, this mode of discovery procedure is likewise referred to
as view of an object, and is commonly resorted to in the following cases:
a) actions for recovery of possessions and ownership of real
property;
b) annulment of title;
c) in eminent domain proceedings;
d) ejectment proceedings, and land registration cases;
e) in criminal prosecutions for usurpation of real rights over real
property
f) in murder and homicide cases where the place of incident is an
issue, or territorial jurisdiction in order to determine where the crime was
committed;
g) in theft or robbery in order to apprise the court whether or not the
crime was committed in an enclosed premises; or inhabited or
uninhabited place; 10 in arson cases;
i) in crimes of trespass to private property or dwelling in order to
determine the probability or improbability of the accused to commit the
act of trespass considering the physical condition of the dwelling or
whether or not the place intended for entrance is restricted to the public;
j) in vehicular incidents to determine the point of impact. to find
traces of tire marks. to determine the relative distance of one vehicle to
another from the time of impact and thereafter for the purpose of finding
whether the erring vehicle was running at a speed faster than allowed by
law, or the distance where the body of the victim was thrown from the
point of impact;
k) in a prosecution for arson. to take a picture of the place of burning
taken immediately before and after the burning — this is an evidence of
high probative value to determine the extent of damage, provided, it is
taken by an expert photographer or under the supervision of one with
sufficient training and expertise in photography.
b) Determine the sufficiency of evidence or the lack of it
If you are contemplating to draft a pleading, or of filing a criminal complaint, t the
lawyer should know as a result of ocular inspection whether he could build a case
from his findings and be able to sustain them in court. In an action for annulment of
title to property for example, it is important to determine whether the evidence
consisting of a deed of sale is simulated or not, and the certificate of title is a product
of forgery or not. For the purpose of discovering the flaw of title, resort to forensic
examination by the NBI crime laboratory, or of the crime laboratory in Camp Crame,
may be availed of in order to unearth whether the signature of the vendor in a deed of
conveyance is genuine or not.
In a criminal prosecution where the charge is solely based on circumstantial evidence,
like finger prints reproduced from the crime scene, weapons and slugs recovered from
the crime scene, strands of hair or portions of skin of a human body recovered
therefrom, may be submitted to the NBI crime laboratory to determine whether such
weapons or body parts could be traced to the accused. A more modern and scientific
detection or identity of the culprit in rape cases or crimes against chastity, homicide
and murder, or where only circumstantial evidence like bloodstains produced from the
crime scene or traces of spermatozoa extracted from the body or clothing of the
suspect or rape victim, and the result of a DNA test, are vital evidence to corroborate
in a cumulative quantity leading to a conclusion beyond reasonable doubt sufficient to
sustain a judgment of conviction.
c) Probative value of extra-judicial confession
In the leading case of People vs. Galit. 135 SCRA 465, the Supreme Court
pronounced that, for an extrajudicial confession to sustain a judgment of conviction, it
must be corroborated by evidence of corpus delicti. Where the charge is anchored on
an extra-judicial confession of the accused, it is essential to determine whether said
confession could pass the test of voluntariness.
Another test on the admissibility of an extrajudicial confession which is usually taken
during custodial investigation is, whether or not sufficient warnings to the accused
were made before the taking of his confession of his right to counsel. Should he opt to
waive his right to counsel, to see to it that such waiver was made with the assistance
of counsel if not of his own choice, then one provided by the interrogator.
The pivotal thing is that, even in the case of waiver by the accused of his right to
counsel who would assist him in the taking of his extrajudicial confession, the
interrogator is still mandated to provide a counsel to the accused, if not of his own
choice, then any available lawyer for that matter in the vicinity. No lawyer whose
name appears in the Roll of Attorney's in the Supreme Court is at liberty to refuse
such duty if he happens to be the first choice of the interrogator to assist the accused
in executing Refusal on the part of a member of the bar to comply with this sworn
duty, constitutes as violation of his lawyer's oath and is a ground by the Supreme
Court, for imposing appropriate sanctions against such lawyer. (People vs. Galit)
Guidelines in determining whether the evidence on hand are sufficient to sustain a
charge or litigation vary in each particular case, and the ultimate evaluator of such
evidence is the lawyer who knows his law on evidence and his skill and experience in
the application of the substantive and procedural laws to a given state of facts. Not
only must there be showing that the investigating officer has complied with the
obligation to inform the person under investigation of his right to remain silent and to
the assistance of counsel, but it is also the obligation of the prosecution to
affirmatively establish compliance by the investigating officer with said obligation.
Absent such affirmative showing, the confession made by a person under custody
subject of an investigation, cannot be admitted in evidence. (People vs. Duhan, 142
SCM 100 (28 May 1986; People vs. Valarma, 11 May 1986)
It follows therefore, that the prosecution must show that the suspect understood the
consequences of waiving his right to counsel. After informing him of his right to
remain silent, he must also be informed that should he choose to speak, anything that
he says may be used against him. If he desires to be assisted by counsel but cannot
afford to hire one, the State thru the public prosecutor must provide him with one to
assist him during custodial investigation. Without the additional (information) the
admonition of his right to consult with counsel would often be understood as meaning
only that he can consult with lawyer if he had one or has the funds to obtain one.,
warning of the right to counsel would be hollow if not couched in terms that would
convey to the indigent — the person most often the subject of interrogation — the
knowledge that he too has a right to have counsel present x x x. (People vs. Quizon,
142 SCRA 596, June 1986; People vs. Tolentino. 145 SCRA 597 (24 Nov. 1986).
d) Extrajudicial confession taken perfunctorily not admissible in evidence
—doctrines on strict compliance with specific steps
As pointed out by this Court in People vs. Nicandro, 141 SCRA 289 (1986). When
the Constitution requires a person under investigation to be informed of his right to
remain silent and to counsel, it must be presumed to contemplate the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of
an abstract constitutional principle. As a rule, therefore, it should not be sufficient for
a police officer just to repeat to the person under investigation the provisions of
Section 20, Article IV of the Constitution. He is not only duty bound to tell the person
the rights to which the latter is entitled: he must also explain their effects in practical
terms x x x. In other words, the right of a person under interrogation to be informed,
implies a correlative obligation on the part of the police investigator to explain, and
contemplate an effective communication that results in understanding what is
conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the
Person has been "informed" of his rights. Now, since the right to be informed implies
comprehension, the degree of explanation required will necessarily vary, depending
upon education, intelligence and other relevant personal circumstances of a person
under investigation. Suffice it to say that a simpler and more lucid explanation is
needed where the subject is unlettered.
Furthermore, this Court has consistently ruled that waiver of right to counsel to be
valid, must be in writing and in the presence of counsel. Extrajudicial confessions
taken without the assistance of counsel is inadmissible in evidence. (People vs.
Albofera, 152 SCRA 123 (1987)) Hence, while the right to counsel may be waived,
such waiver must be done voluntarily, knowingly and intelligently, and made in the
presence of the accused's lawyer. If the records do not show that the accused was
assisted by counsel in making his waiver, this defect nullifies and renders
inadmissible in evidence his confession. (People vs. Nolasco, 163 SCRA 623)
In People vs.Hizon, 163 SCRA 760. this court citing the procedure laid down in the
case of People vs. Galli, 135 SCRA 465, ruled that the suspect must be informed that
he has a right to the assistance of counsel and assured that he will be provided with
one for free. While he may choose to waive the right, such waiver must be a knowing
and intelligent one and in any case must be made only with the assistance of counsel.
Any waiver made without observance of these requirements is null and void.
(e) Basic steps in taking extrajudicial confession
The following steps should be pursued to make an extra-judicial confession
admissible in evidence, viz:
1. at the time of the arrest, the arresting officer shall inform the person arrested
of the reason for his arrest;
2. he must be shown the warrant of arrest. If any;
3. he shall be informed of his constitutional right to remain silent and to counsel;
4. he must be informed that any statement that he might make could be used
against him;
5. the person arrested shall have the right and be given sufficient opportunity to
communicate with his lawyer of his own choice, a relative, or anyone he
chooses by the most expedient means, by telephone if possible, or by letter or
messenger;
6. if such person arrested cannot afford the services of his own counsel, he must
be provided with a competent and independent counsel by the investigating
officer;
7. the extrajudicial confession shall then be reduced to writing and signed by the
person arrested, detained or under custodial investigation in the presence of his
own counsel or one provided by the investigating officer;
8. in case the person arrested, detained or under custodial investigation has no
counsel or in the absence of one provided by the investigating officer, no
custodial investigation shall be conducted and the suspected person can only
be detained in accordance with Article 125 of the Revised Penal Code;
9. should the person arrested, detained or under custodial investigation waive his
right to counsel, such waiver which is in writing, shall not be valid unless
made with the assistance of counsel;
10. should the person arrested, detained or under custodial investigation choose to
sign the extrajudicial confession upon a valid waiver after its contents have
been explained to him and understood by him in the language of his own
tongue, he may sign the same in the presence of any of his parents, elder
brothers, and sisters, his spouse, the municipal mayor, the municipal judge,
district supervisor, or priest or minister of the gospel as chosen by him,
otherwise, such extrajudicial confession shall be inadmissible as evidence in
any proceeding;
11. any waiver by a person arrested or detained under the provisions of Art. 125 of
the Revised Penal Code, or under custodial investigation, shall be in writing
and signed by such person in the presence of his counsel; otherwise, the
waiver shall be null and void and of no effect (Rep. Act No. 7438); and
12. after the person arrested or detained or under custodial investigation has
signed the extrajudicial confession in the presence of his counsel or upon a
valid waiver, the same shall be attested and signed by the investigating officer
and any of the parents, or elder brother or sister, or his spouse or municipal
mayor, municipal judge, district supervisor or priest or minister of the gospel
chosen by him;
By way of reference and basis of compliance with the afore-mentioned requirements,
Article III, Section 12 of the 1987 Constitution provides:
“Sec.12.(1) Any person under investigation for a commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.”
xxxx
(3) Any confession or admission obtained in violation of this x x x shall be
inadmissible in evidence against him.”
etc.
(f) Evidentiary value of police report, autopsy report, medical report,
Of immeasurable efficacy, are police reports of police officers who have conducted an
on the spot investigation of the scene of the incident, autopsy reports and medical
reports of medico-legal experts who have examined the type of wounds, cause of
death and trajectory of bullet wounds, from the body of the victim of a crime. In
criminal actions for reckless imprudence resulting in homicide or physical injuries,
damage to property thru reckless imprudence, as well as tort actions or actions arising
from quasi-delict under Art. 2176 of the Civil Code, police report has a superior
probative value and weight. It likewise bolsters one’s claim or third persons in auto
collisions, although some insurance firms simply require the execution of an affidavit
of the vehicle owner or driver to support his money claims.
In every inquest proceeding conducted by inquest Prosecutors especially in Metro
Manila, police investigation report is a must. In fact, Inquest Prosecutors make police
investigation reports and affidavits or sworn statements of complaining witnesses the
sole basis of their inquest proceeding usually conducted in various police precincts.
And these are usually embodied in their written referral reports and endorsements to
the Office of the City Prosecutor within whose territorial jurisdiction the crime
charged has been committed that will support the filing of a criminal indictment in
court.
A medical report on the other hand, or medical certificate prepared and issued by an
examining physician, is a material piece of documentary evidence of high probative
value, which is indispensable for the filing of a charge for murder, homicide, parricide,
physical injuries, rape, seduction, assault against a person in authority or his agent,
traffic accident cases, forcible abduction and abortion. When testified to by the
issuing physician or medical specialist in court, such medical certificates and autopsy
reports carry a high evidentiary value that are usually followed by a judgment or
conviction.
An inquest Prosecutor may refuse to entertain a criminal complaint for charge of
physical injuries or any crime against persons for lack of a medical certificate. A
medical certificate or a laboratory finding is also necessary to determine whether the
respondent in a vehicular case was driving under the influence of liquor or prohibited
drug. A medical finding as a result of a laboratory examination of an expert, is pivotal
in a prosecution for rape where the offended party was rendered unconscious by the
use of a prohibited drug or any substance that impairs the mental faculties. Even
charges or negligence or reckless imprudence against attending physicians, surgeons
and nurses, may not prosper without a medical report containing findings or traces of
poisonous substances that the doctor may have administered on the patient, or the
discovery of surgical instruments recovered inside the body of a patient after the
surgical operation.
An autopsy report may also help in finding whether the victim had died only recently
or after the lapse of a considerable period of time by the existence of rigor mortis, the
color of the blood which might be extracted from the body of the deceased, whether it
is still fresh or blackish in color, to determine whether the deceased had expired just
recently or for the past many hours or days. The same autopsy report is evidence of
high probative value in the exhumation of the dead person to determine which part of
the body of the deceased had sustained fatal wounds, fractures of the bones, the
weapons used and even the relative position of the accused in relation to the deceased
at the time the wounds were inflicted. This is especially true in case the deceased was
buried without a timely autopsy examination conducted by a medico-legal officer or
in case of conflicting versions of expert witnesses rendering the evidence as to the
cause of death tenuous.
(17)
Procedure in qualifying an expert witness in case the adverse
counsel would not admit the competency of the examining
physician to testify as an expert witness.
Prosecutor: (Manifestation) Your Honor please, in view of the refusal of
accused’s counsel to admit the competency of the doctor who issued the autopsy
report, may we be allowed to put him on the witness stand for the purpose of
qualifying him as a medico-legal expert?
Court: Proceed.
Prosecutor: Doctor X, is this your first time to appear and testify in court?
Doctor X: No Sir, this is my seventh Tim to appear and testify in court as a
medico-legal expert in response to a court subpoena.
Prosecutor: Do you know a certain deceased person by the name of Arsenio
Pacete?
Doctor X: Yes sir, I was the one who conducted an examination of the cadaver of
the late Arsenio Pacete inside the morgue of St. Paul’s Hospital, Iloilo City, on
December 21, 2014.
Prosecutor: And did you issue an autopsy report after examining the cadaver of
the deceased Arsenio Pacete?
Doctor X: Yes sir.
Prosecutor: I show to you this document, titled REPORT OF AUTOPSY
EXAMINATION, which I request to be marked as Exhibit “A” for the prosecution,
will you take a look over it and tell the court if that is the same autopsy report that you
issued after examining the dead body of Arsenio Pacete?
Doctor X: yes sir, I was the one who prepared and accomplished that autopsy
report.
Prosecutor: Dr. X, at the bottom of this autopsy report Exhibit A, there appears a
signature above the typewritten name Doctor X, will you tell the court if that is your
signature?
Doctor X: It is my signature Sir.
Prosecutor: I request that the signature above the typewritten name Doctor X, be
encircled and marked as Exhibit A-1.
Prosecutor: Doctor X, in your autopsy report there are findings written on the
middle portion of this report, but I will defer propounding questions on them, until I
have qualified you to be competent to testify as a medico-legal expert. Doctor, where
did you take your medical studies?
Doctor X: I took and finished my medical course at the UP College of Medicine,
Diliman, Quezon City.
Prosecutor: what year was that when you finished your medical studies at the
University of the Philippines?
Doctor X: I finished my medical studies at U.P. in 1997.
Prosecutor: after graduating from UP College of Medicine, did you go to practice
at once?
Doctor X: No Sir, after graduation, I still underwent internship training at the
Philippine General Hospital, for one year, after which I was assigned to do field work
in the rural areas of Tondo, Manila. Then in the following year I took the government
examination for medical practitioners and passed the board exams in September,
1999.
Prosecutor: In what hospital are you assigned now, or are you a government
physician?
Doctor X: No Sir, I am private practitioner, but I used to treat patients in different
hospitals whenever my services. are hired by prospective patients.
Prosecutor: Doctor X, during your medical studies at UP were you taught about
the different kinds of wounds that are inflicted on the human body? Will you tell us if
what are these wounds that may be inflicted on the human body and will you describe
each one of them?
Doctor X: They are stab wound which may be caused by a bolo or balisong; a
punctured wound which may be caused by sharp pointed object like an ice-pick,
lacerated wound which may be caused by a hard blow with the use of blunt
instrument or object like a piece of wood, an iron bar or a hammer; bullet or gunshot
wound which is caused by a slug of a firearm; an incised wound that is commonly
caused by a sharp instrument like a bolo or a knife.
Prosecutor: Will you distinguish a bullet wound from a lacerated wound or stab
wound, or incised or punctured wound?
Doctor X: In the case of bullet wound, the point of entrance is smaller or almost
closed than its point of exit, and sometimes some traces of nitrates can be detected
from the point of entrance if the explosion occurs close to the human body. Whereas,
a lacerated wound has an irregular shaped edges, while a stab wound has straight
edges like one caused by a sharp instrument as bolo or balisong, while a punctured
wound has a closed point of entrance usually cost buy an ice-pick. On the other hand,
an incised wound one has clean-cut edges usually cost by a sharp instrument like a
knife.
Prosecutor: Doctor during your medical studies at UP have you been assigned in
a laboratory where you were taught how to open up a human body or cadaver of a
dead person?
Doctor X: Yes Sir, we were taught how to open up a dead human body or cadaver,
and even disembowel the intestines of a cadaver in cases where the wound has passed
thru or caused a cut or internal wound of the intestines, or heart, lungs, kidneys, or
any and every internal organ of the human cadaver which has suffered a wound.
Prosecutor: Doctor X, during your laboratory studies at UP how many dead
bodies or cadavers of a human person have you opened up and examined?
Doctor X: More less I had occasion to actually open up at least ten (10) cadavers
or dead bodies of human beings who are victims of a crime, during which operation I
had to explore and dissect the extent and nature of the wounds, at the same time
studying and analyzing every angle and causes of death.
Prosecutor: Doctor X, were you subpoenaed to appear and testify in this case on
your autopsy report? Will you show the copy of the subpoena duces tecum that was
served to you?
Doctor X: (Doctor X taking the subpoena duces tecum issued by the court from
his envelope and handed it to the prosecutor)
Prosecutor: May I request your Honor that this subpoena duces tecum that
Doctor X had received from this court be marked as exhibit B, for the prosecution.
That would be all your Honor.
On the basis of the foregoing direct testimony of Doctor X, his testimony can be
considered sufficient evidence to back up the court’s discretion to consider Doctor X
qualified to testify as a medico-legal expert, even if the defense lawyer would object
or would conduct a grueling cross-examination of the witness.
(18) When to prepare a demand letter
When in your assessment of every material evidence you have gathered you are
convinced that they are sufficient to start a court litigation, and after conducting an
extensive interview of your client and witnesses, and in your objective evaluation of
such evidence, there exists a valid cause of action. It is now time to prepare a letter of
demand. As an advocate of law who has sworn to aid the courts in administration of
justice, more than your duty to defend the cause of your client, it is still your task to
prevent expensive litigations and/or explore with the adverse party the possibility of
an out of court settlement, guided only by the noblest purpose of preventing the
parties from the hemorrhaging of their assets and becoming mentally and physically
drained of attending stress of a litigation, over and above your self-aggrandizement.
It is therefore not difficult to temper your demand letter by imparting with even an
indirect tenor without bending too low, that despite your final demand, all avenues are
still open for you to start a dialogue on a consensus that can make everybody happy.
For as earlier pointed out, there is no legal impediment from forging a compromise
agreement even though the court has already rendered its judgement, as long as it has
not yet become final and executory, or as long as the records of the case have not yet
been transmitted to the appellate court. This is so because, the agreement of the
parties has the force of law between the parties, unless tainted with forgery or duress
or undue influence, and any court judgement that contravenes or does not conform
with the will of the parties is annullable and unenforceable.
But when all hopes for an amicable settlement have blasted, then as a lawyer who is
worthy of his hire, it becomes your self-imposed task to protect the interest of your
client at all cost up to its termination as a concomitant condition of your contract of
employment.
In any case, the law has devised an expedient scheme of maintaining goodwill and the
cessation of hostilities between the warring parties, by the mandatory process of
pre-trial conference under Rule 48 of the 1997 Rules of Civil Procedure. This
procedure is available in a civil case, and at any stage during the pendency of the case,
although this step is likewise applicable in a criminal case by analogy in order to
abbreviate the proceedings, should there be some overtures coming from any party, or
upon the initiative of a resourceful and efficient Judge. In criminal case however, only
the civil aspect of the case is allowed to be the subject of amicable settlement. Failure
on the part of the party litigant to attend such preliminary conference despite due
notice, shall consider a lack of interest on his part, or waiver on his part from the
benefits thereof. But the result of such conference shall, nevertheless, be binding on
the defaulting party and may adversely affect the merits of his cause, because a
resolution issued by the court shall control the subsequent proceedings.
Factors that influence negotiation:
a) Fear of litigation by potential litigants
b) Fear of incurring unnecessary expenses of litigation;
c) Fear of suffering mental torture, anxiety, and social humiliation,
character assassination and family ruin;
d) Desire on the part of the lawyers to rake fat incentives without
undergoing tedious court hearings;
e) Psychological
participation.
pressure
induced
by
court
warning
and
active
1. Fear of litigation
To all potential litigants, the nightmare of court litigation with the propensity of
wrecking their family lives and the future of their children, is simply stressful and
dreadful. The most common remark that can be heard from the mouth of a potential
litigant is a proud challenge to the adverse party to go to court. “You go to court and
I will see you there!”
In reality however, these remarks are mere figure of speech blurted out to release a
tension that had been building up inside the party’s ego, although they are not actually
meant by the speaker. In fine, these words are but a product of reverse psychology or
that she means otherwise, and that in truth and in fact, deep inside she resents a court
litigation because the moment she gets entangled into a court case, she knows fully
well that the bundle of dollar bills she has been hoarding for the past several years,
will go into the pocket of a lawyer and/or will answer all kinds of damages that are
demanded in Plaintiff’s pleadings.
In another vein, these verbal outbursts are meant to test the adverse party’s reaction in
the expectation that he (Adverse party) will begin to feel that the challenger’s threat
might turn into action, hence, he’d better propose an amicable settlement. When anger
and hatred subside, the speaker usually shows a sign of remorse, and his true color
reveals that the words he has said were intended to strike a bargain as part of
negotiating technique to force the other party to sit down at the negotiating table.
The language of a demand letter may vary according to one’s ability and temperament
to put down in writing what had been brewing for sometime inside one’s brain’s
structure. For those who prefer to subdue his/her ruffled feelings orally, herein below
is a sample conciliatory type of demand letter:
Place and date
Mrs. Margarita Napoles
2020 Adelfa Street, Ayala Alabang
Subdivision, Muntinlupa City
Madam:
My client Perfecto Tonog came yesterday and showed me the original of a
promissory in the amount of Php100, 000.00 which you purportedly issued on
15 November 2014, with maturity date as of 31 December 2014 (machine
copy of which is hereto attached).
Mr. Tonog opted for a court action after your having ignores his phone calls.
However, before we resort to court litigation, I suggest that the best alternative
is an out of court settlement so as to maintain our cordial relationship, and
avoid unnecessary litigation expenses. So please find time to reach me thru the
phone number that I have already given you within ten (10) days from receipt
hereof, otherwise, I shall be constrained to bring this matter to court for the
protection of my client’s interests.
Very truly yours,
Atty. Generoso Gindap
2.
Negotiation
a) Characteristics
As the word projects, negotiation is essentially conciliatory in nature participated in
by two or more parties usually with the assistance of their respective counsels. It may
be initiated by counsels themselves from either or both sides, who propose overtures
on the terms and conditions for the settlement of a controversy or justiciable issue,
progressing into a bilateral hard bargaining over the table.
Negotiation may be conducted by lawyers of both parties even without a special
authority subject to the ratification by the client, or with the latter’s prior authority
before the terms become the basis of an out of court settlement. It may also serve as
key to judicial action that precedes a compromise agreement usually perfected during
pre-trial conferences developing into a guideline for the court’s final judgment. Even
during the progress of a court litigation, negotiation may still be pursued with more
vigor and determination to force down the necessity of amicable settlement between
litigating parties with a view of forestalling expensive and often wasteful court trials.
Initially, informal talks start between counsels of both or multiple interested
parties-clients, or even by the parties themselves, developing into formal conferences
in the presence of the parties or on prior consultation with them. It may be initiated
and perfected thru a telephone conversation or personal contact between the parties of
the negotiators and existing opportunities.
3.
Fear of incurring unnecessary expenses incident to litigation
process
Survey resulting from personal interview with potential litigants, reveals that almost
everyone of them is hounded by the prospect of incurring expenses of litigation,
particularly the exorbitant fees of their lawyers. Countless litigants who before being
dragged into litigation were wealthy and financially stable, have after undergoing the
travails and harrowing experience of prolonged court battles, become destitute and
mentally unbalanced. When news of this kind reaches the ears of a prospective client,
he becomes paranoid and would begin to pressure his lawyer to do something, almost
anything including the employment of an immoral or illegal course of action or
defense to stop an impending court confrontation. The distraught client now begins to
prod his lawyer to make overtures for negotiation with the adverse party.
4.
Fear of suffering mental torture, anxiety, social humiliation
As the pressure mounts everyday and the client is attacked by nervous tick, the urge to
negotiate becomes unbearable. At this stage, the client is gripped by the feeling of
insecurity, needing the lawyer’s company more than ever to give him reassurance of a
favorable judgment from the courts. The lawyer when confronted by this type of
client must be on guard with this ethics, lest he will be tempted to make false
promises and pursue an illegal and immoral course of action just to please his client.
Nevertheless, negotiation should be pursued with no let up, not only to end the
client’s paranoia, but also because it is the cheapest vehicle to prevent a brewing
litigation.
5.
Desire by the lawyer to rake fat remuneration
Uppermost in the mind of a practicing lawyer with seldom or very rare exceptions, is
to rake handsome fees (these bunch of money-making crocodiles), who do not care
whether their clients are indigents or paupers. No matter how fierce the denial, it is
the lure of handsome fees that drives them to thrive in this dog-eat-dog profession,
like the wild dogs who will kill over a carcass. They who are the next of kin of greedy
medical practitioners who will skin alive their penniless patients who cannot leave the
hospital compound without his doctor’s clearance evidencing payment of the last
centavo for her fees, is to succeed in exacting exorbitant fees. They are the spill-over
generations of publicans in the Bible who care less if their patients die or they lose
their cases in court so long as their pockets are overflowing. Of course there are
decent practitioners who really take their profession at heart and are always willing to
offer their services pro bono, conscious of the truth that they cannot carry their
material accumulations beyond the grave.
But they belong to the rare species of homo sapiens whose credo involves a spiritual
influence by His Creator who publicly denounce the unscrupulous money-changers
and usurers at the Synagogue. These rare breed of practicing lawyers are still the
remnants and/or have inherited the merciful blood of St. Ives of Brittany and St.
Fidelis of Suabia, who were known to be “advocates of the poor” as according to the
accounts of Kenneth Redden, they were lawyers by profession who used to defend the
poor and the destitute before Roman tribunals.
Of course, there is a caveat against the right of a lawyer to change the professional
fees that are due him, and that they must not be unconscionable or champertous.
Besides, the yardstick is provided by Art. 1492 of the Civil Code prohibiting the
acquisition of the client’s property subject matter of the suit during the pendency of
the case, including the act of acquiring the client’s property by assignment. These
excesses in the lawyer’s right to a just honorarium could be a potential ground for
disbarment for dishonesty, deceit and/or malpractice.
6.
Impelling force exerted by third parties to gain unusual advantage
from out of court settlement
In most cases, third parties are involved in the transaction who later on may litigate as
third party complainant, cross-claimant, fourth party complainant, fifth party
complainant or intervenors. On the other hand, there are persons who not being
lawyers, act as brokers or agents who are interested in realizing fat commissions.
They are of the aggressive breed of unscrupulous money makers and mercenary
workers who volunteer their services to lawyers and prospective litigants by making
proposals to the adverse party in the hope of receiving a slice from the carcass, or
fruits of a favorable verdict, so to speak.
When relations between the potential litigants are strained or their lawyers are too
proud to make the first move, it is advisable to hire the services of experienced
brokers for the purpose of pushing the parties to the negotiating table. There are a
good number of these fly-by-night operators who ply their trade behind the back of
judges, most of whom are found right then and there working as personnel and
members of court staff. As long as their acts do not border on bribery or corrupt
practices and their basic duties are not neglected, they contribute a large part in
settling controversies out of court. Some of these sleek operators are employed in not
so prestigious law offices and they are easy to contact thru some court personnel who
connive with them in facilitating the speedy issuance of court orders and ancillary
reliefs. Sometimes, the names of these agents and court personnel appear in the secret
payroll of the law office where these court employees are working.
7.
Presiding Judge as effective negotiator
There are efficient and selfless trial Judges who got out of their way in forging an
amicable settlement between the parties litigants, without showing any tendency of
favoring either party and acting only with cold neutrality and blindfolded actuation of
a true arbiter or justice. They do not simply wait on their rostrum to be fed by the
parties’ presentation of evidence. They themselves play an active role of a chief
negotiator and master of ceremonies by breaking the ice between parties litigants who
do not see each other eye to eye, and shuttling from one party to another inside his
chambers, or making proposals in open court, and trying to convince the parties that
this or that term or condition will redound to their mutual welfare and benefit. They
are the unsung heroes of the judiciary, the upright breed of trial Judges who shun
publicity and whose sole ambition is service above self, and to declog their court
dockets with the most number of case disposals as reflected in their monthly reports
and certificates of service as compared to their counterparts within the Region.
Of course one cardinal virtue considered sine-qua-non to an effective negotiator is, a
reputation for integrity and sincerity. For once a suspicion of self-interest on the part
of the negotiator Judge, creeps into the heads of the parties, no amount of hard
bargaining and power of persuasion can sway their stubborn minds. However, when
the Judge becomes the leader in the negotiation process, he usually shows his unusual
interest in the early disposal of the case, and in delivering the reliefs prayed for by the
parties, thus in effect curtailing the chances of the lawyers to appear in court and be
able to collect additional attorney's fees.
8. Pre-trial conference a keystone to abbreviate litigation
It is during the pre-trial stage that the role of the trial Judge becomes more dominant
and proves his skill and competence as an effective negotiator and dispenser of justice.
When the case has been placed in the trial calendar, the first task of the court is to call
the parties to a pretrial conference. Under the Rules of Court, pre-trial conference is
mandatory in the Regional Trial Court. In fact, it is during this stage of court
proceedings that the Judge ought to play the key-man role, and it is precisely at this
pre-trial stage that his leadership and mettle in judicial statesmanship is tested and is
badly needed. A Judge is not worth his appointment if he does not know how to lead
the parties and their lawyers in a simple pre-trial proceeding. He must not only rely on
his Clerk of Court, but must himself be the master of ceremonies. He is likened to a
conductor in a concert who leads the orchestra with his baton and a floor- manager at
a stage show. As floor manager he controls the show and tells the parties when to start
and stop talking.
9. Advance opinion of Presiding Judge not pre-Judgment
It is however a misimpression and wrong conclusion to say that simply because the
Presiding Judge has made a comment about his position or off-hand opinion on the
matter pending before him, he has already pre-judged the case. As the late Justice
Antonio Barredo had aptly said, “To a certain extent, in a pre-trial, you (referring to
the Judge) have to announce more or less what might be the law on the point and the
chances of being a success or failure in either case. That is the only way you can
influence the parties to come to an agreement. To me prejudgment means you form
your own opinion before you have read the pleadings. You come to know of a case
and before you have read any of the pleadings, you are already in favor of the
defendant or of the plaintiff as the case may be. That is prejudgment. But when you
can tell from the pleadings what the law is, that is not pre-judgment. It is advanced
judgment. There lies the distinction.”
Somehow, the Judge being privileged by the nature of his job to act as lead negotiator
in a pre-trial conference, unwittingly wields tremendous influence to the parties to
come into an agreement. Trouble with some Judges is, that if the parties or their
counsels give a negative answer when asked whether they have come to an
amicable settlement, immediately issues an order to proceed to trial without
exhausting all avenues for settlement. This is laziness pure and simple. In fact, it is
precisely when they say: “We have not come to an agreement, “that the Judge
should say: “Alright, you have not come to an agreement. Tell me why you could
not agree?” And from there the Judge must start the negotiation process by asking
questions, proposing terms and conditions and a final solution to the problem
before him to the satisfaction of the parties until they have come to an agreement.
However, trouble with some Judges is, that they are selfish (not self-less), too
indifferent to spend some one or two extra-hours with litigants who have pending
cases in their courts, too lackadaisical if you will, to derive some satisfaction in seeing
the parties come to peace. Most of these hoodlums in robes, just kill their time inside
their air-conditioned chambers simply waiting for the next salary check or 13th month
pay plus bonus to arrive. Some are even so cloistered they consider it an affront to
their sacrosanct independence when a litigant asks permission to enter inside his
chambers, not to ask for favor but simply to be enlightened as to the prospect of a
compromise agreement.
In brief, do not stop negotiating unless and until you are of the honest belief that all
avenues and your talent as an effective negotiator have been applied but failed.
Lawyers are therefore advised, and we mean lawyers who are worth their salt and
their lawyer’s oath (and not the mercenary and fly-by-night practitioners who do
not take by heart their noble calling) to extend their full support and cooperation,
even if meanwhile it hurts their pockets, to the Judge’s selfless efforts to bring
peace, if not sometimes buy peace to the parties by a cut-throat method of
negotiation that ends in compromise agreement.
10. Preliminary conference pursuant to Rule 48 precedes pre-trial
A. M. No. 03-1-08-SC
B.
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL
COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL
AND USE OF DEPOSITION. DISCOVERY MEASURES
The use of pre-trial and the deposition-discovery measures are undeniably important
and vital components of case management in trial courts. To abbreviate court
proceedings, ensure prompt disposition of cases and decongest court dockets and to
further implement the pretrial guidelines laid down in Administrative Circular No.
399 dated January 15, 1999, and except as specifically provided for in other special
rules, the following guidelines are issued for the observance and guidance of trial
judges and clerks of court.
1.
PRE-TRIAL
A. Civil Cases
Within one day from receipt of the complaint:
1.1. Summons shall be prepared and shall contain a reminder to defendant to
observe restraint in filing a motion to dismiss and instead allege the conformity
with IBP-OCA Memorandum on Policy Guidelines dated March 12, 2002. A
copy of the summons is hereto attached as Annex “A” ( see Appendix A-101);
and
1.2. The court shall issue an order requiring the parties to avail of interrogatories to
parties under Rule 25 and request for admission by adverse party under Rule 26
or at their discretion make use of depositions under Rule 23 or other measures
under Rules 27 and 28 within five (5) days from the filing of the answer. A copy
of the order shall be served upon the defendant together with the summons and
upon the plaintiff.
Within five (5) days from date of filing of the reply, the plaintiff must promptly
move ex-parte that the case be set for pre-trial conference. If the plaintiff fails to
file said motion within the given period, the Branch COC shall issue a notice of
pre-trial.
2.
The parties shall submit, at least three (3) days before the pre-trial, pretrial briefs
containing the following:
a. A statement of their willingness to enter into an amicable settlement
indicating the desired terms thereof or to submit the case to any of the
alternative modes of dispute resolution;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented, stating the purpose thereof. No
evidence shall be allowed to be presented and offered during the trial in
support of a party's evidence-in-chief other than those that had been earlier
identified and pre-marked during the pretrial, except if allowed by the court
for good cause shown;
e. A manifestation of their having availed of or their intention to avail
themselves of discovery procedures or referral to commissioners; and
f. The number and names of witnesses, the substance of their testimonies,
and the approximate number of hours that will be required by the parties for
the presentation of their respective witnesses;
A copy of the Notice of Pre-trial conference is hereto attached as Annex “B”
(See Appendix A-11).
The rule on the contents of the pre-trial brief must strictly be complied with.
The parties are bound by the representations and statements in their
respective pre-trial briefs.
3.
At the start of the pre-trial conference, the judge shall immediately refer the
parties and/or their counsel if authorized by their clients to the PMC mediation
unit for purposes of mediation if available. If mediation fails, the judge will
schedule the continuance of the pre-trial conference. Before the continuance, the
Judge may refer the case to the Branch COC for a preliminary conference to
assist the parties in reaching a settlement to mark the documents or exhibits to be
presented by the parties and copies thereof to be attached to the records after
comparison and to consider such other matters as may aid in its prompt
disposition.
During the preliminary conference the Branch COC shall also ascertain from the
parties the undisputed facts and admissions on the genuineness and due execution of
the documents marked as exhibits. The proceedings during the preliminary conference
shall be recorded in the “Minutes of Preliminary Conference” to be signed by both
parties and/or counsel, the form of which is hereto attached as Annex “C”. (See
Appendix A-12)
The minutes of preliminary conference and the exhibits shall be attached by the
Branch COC to the case record before the pre-trial.
4. Before the continuation of the pre-trial conference, the judge must study all the
pleadings of the case, and determine the issues thereof and the respective positions of
the parties thereon to enable him to intelligently steer the parties toward possible
amicable settlement of the case, or, at he very least to help reduce and limit the issues.
The judge should not allow the termination of pre-trial simply because of th
manifestation of the parties that they cannot settle the case. He must also be mindful
that there are other important aspects of the pre-trial that ought to be taken up to
expedite the disposition of the case.
The Judge with all tact, patience, impartiality and with due rehard to the rights of the
parties shall endeavor to persuade them to arrive at a settlement of the dispute. The
court shall initially ask the parties and their lawyers if an maicable settlement of the
case is possible. If not, the judge may confer with the parties with the opposing
counsel to consider the following:
a) Given the evidence of the plaintiff presented in his pre-trial brief to support his
claim, what manner of conpromise is considered acceptable to the defendant at
the present stage?
b) Given the evidence of the defendant described in his pre-trial brief to support
his defense, what manner of compromise is considered acceptable to the
plaintiff at the present stage?
If not successful, the court shall confer with the party and his counsel
separately.
If the manner of compromise is not acceptable, the judge shall confer with the
parties without their counsel for the same purposes of settlement.
5. If all efforts to settle fail, the judge shall:
a) Adopt the minutes of preliminary conference as part of the pre trial
proceedings and confirm markings of exhibits or substituted photocopies and
admissions on the genuineness and due executionof documents;
b) Inquire if there are cases arising out of the same facts pending before other
courts and order its consolidation if warranted;
c) Inquire if the pleadings are in order. If not, order the amendments if necessary;
d) Inquire if interlocutory issues are involved and resolve the same;
e) Consider the adding or dropping of parties.
f) Scrutinize every single allegation of the complaint, answer and other pleadings
and attachments thereto and the contents of documents and all other evidence
identified and pre-marked during pre-trial in determining further admissions,
of facts and documents. To obtain admissions, the Court shall ask the parties
to submit the depositions taken under Rule 23, the answers to written
interrogatories under Rule 25 and the answers to request for admissions by the
adverse party under Rule 26. It may also require the production of documents
or things requested by a party under Rule 27 and the results of the physical
and mental examination of persons under Rule 28;
g) Define and simplify the factual and legal issues arising from the pleadings.
Uncontroverted issues and frivolous claims or defenses should be eliminated.
For each factual issue, the parties/counsel shall state all the evidence to
support their positions thereon. For each legal issue, parties/counsel shall state
the applicable law and jurisprudence supporting their respective positions
thereon. If only legal issues are presented, the judge shall require the parties to
submit their respective memoranda and the court can proceed to render
judgment.
h) Determine the propriety of rendering a summary judgment dismissing the case
based on the disclosures made at the pre-trial or a judgment based on the
pleadings, evidence identified and admissions made during pre-trial;
i) Ask parties to agree on the specific trial dates for continuous trial in
accordance with Circular No. 1-89 dated January 19, 1989, adhere to the case
flow chart determined by the court, which shall contain the different stages of
the proceedings up to the promulgation of the decision and use the time frame
for each stage in setting the trial dates. The One-Day Examination of Witness
Rule, that is a witness has to be fully examined in one (1) day only, shall be
strictly adhered to subject to then courts' discretion during trial on whether or
not to extend the direct and/or cross-examination for justifiable reasons. On
the last hearing day allotted for each party, he is required to make his formal
offer of evidence after the presentation of his last witness and the opposing
j)
k)
l)
m)
n)
party is required to immediately interpose his objection thereto. Thereafter, the
Judge shall make the ruling on the offer of evidence in open court. However,
the judge has the discretion to allow the offer of evidence in writing in
conformity with Section 35, Rule 132.
Determine the most important witnesses to be heard and limit the number of
witnesses (Most Important Witness Rule). The facts to be proven by each
witness and the approximate number of hours per witness shall be fixed.
At his discretion, order the parties to use the affidavits of witnesses as direct
testimonies subject to the right to object to inadmissible portions thereof and
to the right of cross-examination by the other party. The affidavits shall be
based on personal knowledge, shall set forth facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify
to the matters stated therein. The affidavits shall be in question and answer
form,and shall comply with the rules on admissibility of evidence.
Require the parties and/or counsel to submit to the Branch COC the names,
addresses and contact numbers of the witnesses to be summoned by subpoena;
Order the delegation of the reception of evidence to the Branch COC under
Rule 30; and
Refer the case to a trial by commissioner under Rule 32;
During the pre-trial, the judge shall be the one to ask questions on issues raised
therein and all questions or comments by counsel or parties must be directed to the
judge to avoid hostilities between the parties;
6. The trial judge shall schedule the pre-trial in the afternoon sessions and set as many
pre-trial conferences as may be necessary.
7. All proceedings during the pre-trial shall be recorded. The minutes of each
pre-trial conference shall contain matters taken up therein more particularly
admissions of facts and exhibits and shall be signed by the parties and their counsel.
8. The judge shall issue the required Pre-Trial Order within ten (10) days after the
termination of the pre-trial. Said Order shall bind the parties, limit the trial to matters
not disposed of and control the course of the action during the trial. A sample
Pre-Trial Order is hereto attached as Annex “D”. (See Appendix A-13)
However, the Court may opt to dictate the Pre-Trial Order in open court in the
presence of the parties and their counsel and with the use of a computer, shall have
the same immediately finalized and printed. Once finished, the parties and/or their
counsel shall sign the same to manifest their conformity thereto.
9. The court shall endeavor to make the parties agree to an equitable compromise or
settlement at any stage of the proceedings before rendition of judgment.
B. Criminal Cases
1. Before arraignment, the Court shall issue an order directing the public
prosecutor to submit the record of the preliminary investigation to the Branch COC
for the latter to attach the same to the record of the criminal case.
Where the accused is under preventive detention, his case shall be raffled and its
records transmitted to the judge to whom the case was raffled within three days from
the filing of the complaint or information. The accused shall be arraigned within ten
days from the date of the raffle. The pre-trial of his case shall be held within ten days
after arraignment unless a shorter period is provided for by law.
2. After the arraignment, the court shall forthwith set the pre-trial conference
within thirty days from the date of arraignment, and issue an order: (a) requiring the
private offended party to appear thereat for purposes of plea-bargaining except for
violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters
requiring his presence; (b) referring the case to the Branch COC, if warranted for
preliminary conference to be set at least three days prior to the pre-trial to mark the
documents or exhibits to be presented by the parties and copies thereof to be attached
to the records after comparison and to consider other matters as may add in its prompt
disposition; and (c) informing the parties that no evidence shall be allowed to be
presented and offered during the trial other than those identified and marked during
the pre-trial except when allowed by the curt for good cause shown. A copy of the
order is hereto attached as “E”. In mediatable cases, the judge shall refer the parties
and their counsels to the PMC unit for purposes of mediation if available.
3. During the preliminary conference, the Branch COC shall assist the parties
in reaching a settlement of the civil aspect of the case, mark the documents to be
presented as exhibits and copies thereof attached to the records after comparision,
ascertain from the parties the undisputed facts and admission on the genuineness and
due execution of documents marked as exhibits and consider such other matters as
may aid in the prompt disposition of the case. The proceedings during the preliminary
conference shall be recorded in the Minutes of the Preliminary Conference to case be
assigned by both parties and counsel. (Pls. See Annex “B” and Appendix A-12)
The minutes of Preliminary Conference and the exhibit shall be attached by the
Branch COC to the case record before the pre-trial.
4. Before the preliminary conference the judge must study all the pleadings of
the case, and determine the issues thereof and the respective positions of the parties
thereon to enable him to intelligently steer the parties toward a possible amicable
settlement of the case, or, at the very least to help reduce and limit issues. The Judge
should not allow the termination of pre-trial simply because of the manifestation of
the parties to the advantages of pre-trial. He must also be mindful that there are other
important aspects of the pre-trial that ought to be taken up to expedite the disposition
of the case.
The Judge with all tact, patience, impartiality and with due ragard to the rights of the
parties shall endeavor to persuade them to arrive at a settlement of the dispute. The
court shall initially ask the parties and their lawyers if an amicable settlement of the
case is possible. If not, the judge may confer with the parties with the opposing
counsel to consider the following:
a. Given the evidence of the plaintiff presented in his pre-trial brief to
support his claim, what manner of compromise is considered acceptable to
the defendant at the present stage?
b. Given the evidence of the defendant described in his pre-trial brief to
support his defense, what manner of compromise is considered acceptable
to the plaintiff at the present stage?
If not successful, the court shall confer with the party and his counsel
separately.
If the manner of the compromise is not acceptable, the judge shall confer
with the parties without their counsel for the same purposes of settlement.
5. If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of the preliminary conference as part of the pre-trial
proceedings and confirm markings of exhibits or substituted
photocopies and admissions on the genuineness and due execution;
b. Inquire if there are cases arising out of the same facts pending before
other courts and order its consolidation if warranted;
c. Inquire if the pleadings are in order, if not, order the amendments
necessary;
d. Inquire if interlocutory issues are involved and resolve the same;
e. Consider adding or dropping of parties;
f. Scrutinize every single allegation of the complaint, answer and other
pleadings and attachments thereto and the contents of documents and
all other pleadings and attachments thereto and the contents of
documents and all other evidence identified and pre-marked during the
pre-trial in determining further admissions, the Court shall ask the
parties to submit the depositions taken under Rule 23, the answer to
written interrogatories under Rule 25 and the answers to request for
admissions by the adverse party under Rule 26. It may also require the
production of documents or things requested by a party under Rule 27
and of the results of the physical and mental examination of persons
under Rule 28;
g. Define and simplify the factual and legal issues arising from the
pleadings. Uncontroverted issued and frivolous claims or defenses
should be eliminated. For each factual issue, the parties/ counsel shall
state all the evidence to support of their positions thereon. For each
legal issue, parties/ counsel shall state the applicable law and
jurisprudence supporting their respective positions thereon. If only
legal issues are presented, the judge shall require the parties to submit
their respective memoranda and the court can proceed to render
judgement;
h. Determine the propriety of rendering a summary judgment dismissing
the case based on the disclosures made at the pre-trial or a judgment
based on the pleadings, evidence identified and admissions made
during the pre-trial;
i. Ask parties to agree on the specific trial dates for continuous trial in
accordance with Circular No. 1-89 dated January 19, 1989; adhere to
the case flow chart determined by the court, which shall contain the
different stages of the proceedings up to the promulgation of the
decision and use the time frame for each stage in setting the trial dates.
The One-Day Examination of Witness Rule, that is, a witness has to
be fully examined in one (1) day only, shall be strictly adhered to
subject to the court’s discretion during trial on whether or not to extend
the direct and/or cross-examination for justifiable reasons. On the
last hearing day allotted for each party, he is required to make his
formal offer of evidence after the presentation of his last witness and
the opposing party is required to immediately interpose his objection
thereto.
Thereafter, the Judge shall make the ruling on the offer of
evidence in open court.
S.C. Circular No. 1-89 dated January 19, 1989
A. Pre-trial elements:
a. The parties shall submit at least three (3) days before the conference pre-trial
briefs containing the following:
1) Brief statement of the parties’ respective claims and defenses;
2) The number of witnesses to be presented;
3) An abstract of the testimonies of witnesses to be presented by the
parties, and the approximate number of hours that will be required by
them for the presentation of their respective evidence
4) Copies of all documents intended to be presented;
5) Admissions;
6) Applicable law and jurisprudence;
7) The parties’ respective statements of the issue; and
8) The available dates of counsel for complete evidence presentation,
which must be within a period of three (3) months from the first day of
trial.
b. At the pre-trial conference:
1) The judge with all tact and patience shall endeavor to persuade the
parties to arrive at a settlement of the dispute, or agree to stipulation of
facts, including the authenticity of documents to be submitted during
the trial;
2) The judge shall then define the factual issues arising from the
pleadings and endeavor to narrow them down to material issues;
3) If only legal issues are presented the judge shall require the parties to
submit their respective memorandum on the issues, and shall render
judgment thereon;
4) If a trial is to be conducted, the judge shall fix the necessary dates to
complete presentation of evidence by both parties within 90 days from
initial hearing;
c. The pre-trial order shall include the following:
1) A statement of the nature of the case;
2) The stipulation or admissions of the parties, including testimonial and
documentary evidence;
3) The issue involved; a) factual and b) legal;
4) Number of witnesses;
5) The dates of trial;
6) This is without prejudice to a finding that either judgment on the
pleadings or summary judgment is appropriate;
7) Failure to file pre-trial briefs may be given the same effect as the
failure to appear at the pre-trial.
B. Filing of Complaint
When all avenues for negotiation and amicable settlement have failed, then counsel
has no other recourse but to bring the matter to the court, for the protection of his
client’s interest. For that is what the lawyer is paid for, when he is not convinces that
his client has a worthy cause, and that only the basis of the evidence on hand there is a
bright prospect of obtaining the proper relief for his client. That is the very purpose
for which the courts of law have been created. The Judge has only up to where his
efforts and ability to negotiate can reach, and without the cooperation of the parties
litigants, the Judge can do nothing to consummate a settlement. He is just one of the
imperfect human instruments with limitations and because he is not a superman nor a
miracle worker that can convert something out of nothing.
Assuming that counsel had completed the final phase of interview with the client, had
gathered the necessary documentary evidence in support of the complaint to be filed
in court, had formulated the theory he is going to pursue on the basis of the evidence
he has gathered including the number of witnessed he is going to present in court, and
had confirmed if what provisions of law squarely apply to the given state of facts and
set of evidence before him as a result of his interview and research, the next step
would be for counsel to ascertain if which court or quasi-judicial body has jurisdiction
over the initiatory pleading to be filed
a) Meaning of jurisdiction in a legal point of view
Jurisdiction in a legal sense, is the power of the court to decide a matter in
controversy and Presupposes the existence of a duly constituted court with control
over the subject matter and the parties. It defines the powers of courts to inquire into
facts, apply the law, make decisions, and declare judgment x x x Power and authority
of a court of justice to hear and determine a judicial proceeding and power to render a
particular judgment in question; the right and power of the court or quasi-judicial
body to adjudicate concerning the subject matter in a given case. (Black’s Law
Dictionary, p. 853)
Jurisdiction is the authority to hear and determine a cause or right to act in a case.
Since it is the power to hear and determine, it does not depend either upon the
decisions made. Jurisdiction should therefore be distinguished from the exercise of
jurisdiction. The authority to decide a cause at all, and not the decision rendered
therein, is what makes up jurisdiction. Where there is jurisdiction of the person and
subject matter, the decision of all other questions arising in the case is but an exercise
of that jurisdiction. (Herrera v. Barreto and Joaquin, 25 Phil. 245, 251, cited in Feria
& Noche, Civil Procedure Annotated Vol.1 p. 130)
b) Territorial jurisdiction defined
Territorial jurisdiction pertains to the power of the court to exercise jurisdiction to
adjudicate cases committed or which occurred within the territory defined by law or
the Supreme Court which is the extent of its jurisdictional competence.
c) Jurisdiction over the subject matter
Jurisdiction over the subject matter is the power to hear and determine cases of the
general class to which the proceedings in question belongs; the power to deal with the
general subject involved in the action. Jurisdiction over the subject matter is
confirmed by law. (21 CJS Courts, 23; cited in Feria & Noche, p. 132)
d) Jurisdiction over the person
Jurisdiction over the person is the power of the court or quasi-judicial agency or
administrative body to subject the person of the defendant or respondent and to bind
him of all judgments and orders of said court or quasi- judicial body that may be
rendered by it with the force of law.
e) Jurisdiction over the res or property
Jurisdiction over the res or property is that obtained by a seizure of the property under
legal process of the court, whereby it is held to abide by such order as the court makes,
and with respect to the person whose rights in the property are to be affected,
jurisdiction may be attained by constructive service of process, it not being necessary
that they be brought within the reach of the persons of the court or should receive
actual notice. (21 C.J.S. Courts; cited in Feria & Noche, Civil Procedure Annotated,
p. 133)
f) Modes of acquiring jurisdiction
Jurisdiction over the subject matter is acquired/ conferred by law which is enacted by
the mandate of sovereign authority which creates the court. Objection based on the
lack of jurisdiction cannot be waived by the parties.
Jurisdiction over the person on the other hand, is acquired either by voluntary
submission or appearance of the party to the authority and control of the court or
quasi-judicial body, or by the coercive power or legal process exerted over the person
of the defendant or respondent.
While venue or place of trial or proceeding may be the subject of agreement of the
parties, jurisdiction cannot because it is fixed by law. Moreover, in criminal cases the
court must have jurisdiction over:
(a) the subject matter of the offense;
(b) the territory wherein one of the essential ingredients of the offense took
place; and
(c) the parties.
In private crimes, however, jurisdiction is acquired by the filing of the complaint by
the private offended party. In public crimes, jurisdiction over the subject matter of the
offense is provided by law.
While territorial jurisdiction is essential in criminal cases, in civil cases, venue may be
subject of stipulation. In civil cases, venue may be waived by the parties, but in
criminal cases, venue or the place of the commission of the offense is jurisdictional.
In the interest of justice however, and in meritorious cases where health condition of
the accused poses to be a primary consideration, the venue or place of trial may be
changed by the Supreme Court.
Likewise, in continuing offenses like estafa or abduction or kidnapping with rape or
homicide, where any of the essential ingredients of the crime took place, the courts of
the different places where any of those essential ingredients of the offense was
committed, can exercise concurrent jurisdiction and the charges may be filed with any
of said courts. Except in cases falling within the jurisdiction of the Sandiganbayan,
and in libel cases wherein jurisdiction falls on the court (a) where the libelous material
is printed and first published, or (b) where any of the offended parties actually resides,
or (c) in case of a public officer, where he holds office at the time of the commission
of the offense.
g) Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts
(a) Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including grant of provisional remedies in proper
cases, where the value of the personal property, estate, or amount of
demand does not exceed (P200,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed Four
Hundred Thousand Pesos (P400,000). Exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs, the amount
of which must be specifically alleged. However, interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs shall be
included in the determination of the filing fees.
(b) Exclusive original jurisdiction over admiralty and maritime cases where
the demand or claim does not exceed Two Hundred Thousand Pesos
(P200,000.00).
Where there are several claims or causes of action between the same or
different parties, embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of action irrespective of
whether the causes of action arose out of the same different transactions.
h) Cases to which the Rules on Summary Procedure shall apply
A. Civil cases:
(a) All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered. Where the
attorney’s fees are awarded, the same shall not exceed twenty thousand
pesos (P20,000.00).
All other civil cases, except probate proceedings, where the total amount of
plaintiff’s claim does not exceed ten thousand pesos (P10,000.00), exclusive of
interest and costs.
B. Criminal Cases
(1) Violations of traffic laws, rules and regulations;
(2) Violations of rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not exceeding
one thousand pesos (P1,000.00), or both irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided, however,
that in offenses involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000.00).
i) Jurisdiction of the Regional Trial Courts
A. Original and exclusive jurisdiction
The Regional Trial Courts shall exercise exclusive original jurisdiction in the
following:
(a) Civil actions in which the subject of litigation is incapable of pecuniary
estimation.
(b) Civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved
exceeds Twenty Thousand Pesos (P20,000.00) or, for civil actions in
Metro Manila, where such value exceeds Fifty Thousand pesos
(P50,000.00) except actions for forcible entry into and unlawful detainer of
lands or of buildings, the original jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts.
(c) Actions in admiralty and maritime jurisdiction where the demand or claim
exceeds Two Hundred Thou cand pesos (P200,000.00) or, in Metro Manila,
where such demand or claim exceeds Four Hundred Thousand pesos
(P400,000.00).
(d) Matters of probate, both testate and intestate, where the gross value of the
estate exceeds Two Hundred Thousand pesos (P200,000.00) or, in probate
matters in Metro Manila, where such gross value exceeds Four Hundred
Thousand pesos (P400,000.00).
(e) Actions involving the contract of marriage and marital relations.
(f) Cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising judicial or quasi judicial functions.
(g) Civil actions and special proceedings falling Within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court and of the Courts
of Agrarian Relations as now provided by law. (Note: These cases now
fall under the Jurisdiction of Family Courts)
(h) Other cases in which the demand, exclusive of interest, damages of
whatever kind, attorney's fees, litiga llon expenses, and costs or the value
of the property in controversy. exceeds Two Hundred Thousand pesos
(P200,000.00) or, in such other cases in Metro Manila, where the demand
exclusive of the above mentioned items exceeds Four Hundred Thousand
pesos (P400,000.00).
Note: Under Section 5 of RA No. 7691, otherwise known as the Law on
Expanded Jurisdiction of 1994, and Court Administrative Circular No. 21-99.
dated April 15, 1999, Sec. 5. After five (5) years from the effectivity of this
Act, the jurisdictional amounts for Regional Trial Courts mentioned in Sec. 19
(3). (4) and (8): and Sec. 33 (1) of Batas Pambansa Blg. 129 as amended by
this Act, had been adjusted as follows: Five years after the effectivity of
Republic Act 7691. the amount exceeds Two Hundred Thousand pesos
(P200,000.00); and five years thereafter, the amount exceeds Three Hundred
Thousand Pesos (P300,000.00). However, in the case of Metro Manila, the
above-mentioned jurisdictional amounts shall be adjusted after five years from
the effectivity of Repub. lic Act No. 7691 such that the amounts exceed Four
Hundred Thousand Pesos (P400,000.00).
(j) Criterion in determining whether or not subject is not capable of
pecuniary estimation
If the principal action is primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and whether jurisdiction is vested in the
inferior courts or in the Regional Trial Courts would depend on the amount of the
claim. However, where the basic issue is something other than the right to recover a
sum of money, where the money claim is purely incidental to, or a consequence of,
the principal relief sought, the action is exclusively cognizable by the Regional Trial
Courts. (Manufacturer's Distributors, Inc. v. Yu Siu Long, 16 SCRA 680; Raymundo
v. Court of Appeals. 213 SCRA 457. in Feria & Noche, Civil Procedure Annotated,
supra)
The following are examples of actions incapable of pecuniary estimation:
a) Action for annulment of marriage, contract or Deed of Declaration of Heirs;
b) Action for annulment of partition of land regardless of the assessed value of
the land; the complaint for partition which under RA 7691 falls within the
jurisdiction of MTC, is merely incidental to the main action for annulment;
c) Action for expropriation or eminent domain. (Brgy. San Roque v. Heirs of
Pastor, G.R. 138896, June 20, 2000);
d) Action for specific performance, support pendente lite;
e) Action for annulment of judgment, annulment of mortgage, deed of sale and
to recover the price:
f) Independent action for rescission of contract or as incident to action for
specific performance;
g) Action for declaration of absence, for foreclosure of mortgage. (Amorganda
v. Court of Appeals, 166 SCRA 203, De Jesus, et al. v. Garcia, et al, 19 SCRA
554)
h) Action for abatement of nuisance.
In Pestolante v. Barimbao, 103 Phil. 414, it was held that an action for foreclosure of
mortgage, is capable of Pecuniary estimation for although the complaint was titled as
collection of money, it however, contains a prayer for foreclosure of a chattel
mortgage involving personal properties worth more than P2,000.00, thus, the suit was
cognizable by the Regional Trial Court (cited in Feria & Noche, p. 167. supra)
Regarding jurisdiction of the Court of Appeals and the Supreme Court, the same is
referenced to Batas Pambansa Blg. 129. otherwise known as the Judiciary
Reorganization Act of 1980 found in Appendix "M" of this work.
The following are pleadings which must be verified:
a) Petition for review on certiorari under Rule 45. and petition for certiorari
under Rule 65;
b) Petition for prohibition, mandamus, quo warranto, injunction;
c) Petition for habeas corpus (Sec. 3, Rule 102); d) Petition for change of
name (Sec. 3, Rule 103);
e) Petition for voluntary dissolution of corporation (Sec. 1, Rule 104);
f) Complaint for forcible entry or unlawful detainer,
g) Petition for appointment of general guardian;
h) Petition for leave to sell or encumber estate of ward;
i) Petition that competency of ward be judicially determined:
j) Complaint for replevin;
k) Complaint with prayer for attachment
l) Answer to complaint for usury:
m) Petition for adoption, hospitalization of insane;
n) Petition filed or signed by a party litigant;
o) Petition for custody of minor;
p) Complaint with prayer for temporary restraining order;
q) Complaint for appointment of receiver;
r) Petition for probate of the will:
s) Complaint for recovery of termination pay, reinstatement due to illegal
dismissal under the Labor Code: Memorandum of appeal from decision of
Labor Arbiter to NLRC;
t) Complaint with prayer for TRO and preliminary injunction before the
Department of Agrarian Reform Adjudication Board;
u) Petition for Intestacy and for Distribution of estate of the deceased;
v) Petition for registration of imperfect title under Act 496;
w) Petition for registration of Articles of Incorporation with the Securities and
Exchange Commission;
x)Complaint for Damages with TRO and preliminary mandatory injunction
arising from Defamation and Libelous publications;
y) Petition for reversion of private land to the public domain, covered by a
fake or fraudulent certificate of title;
z) Complaint for annulment of title with TRO and
damages;
In all of the foregoing initiatory pleadings, a certification on non-forum shopping is
required to be embodied in the body of the complaint/petition itself, or in a separate
page, pursuant to Supreme Court Circular No. 04-94 dated February 8. 1994. Failure
to comply with the aforementioned Circular, will cause the outright dismissal of the
initiatory pleading.
CHAPTER V
GRASS ROOTS PRACTICE COURT
A. Basic role of a trial lawyer
As you begin to contemplate on the role of a trial lawyer, you also begin to form an
opinion and image of the trial judge. Most of us would want to be successful trial
lawyers, and so the paramount objective of a successful trial lawyer is to understand
the lawyers’ basic function. Above all else, the basic function f 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 your clients cause of action as buttressed by the evidence, that your client
is right and that he deserves the favorable judgement and reliefs that you are praying
the court to grant.
Trouble is that some practicing lawyers both young and old with whom this author
had rubbed elbows and had an experience of appearing before his court as former trial
Judge, have a distorted and sometimes exaggerated impressions of the trial judge. For
many layers, they look upon the judge as above human mortals, or some sort of robot
who must act via push button and whose future actions are programmed, do not make
mistakes, or else he is crook. They forgot that judges are human beings who are not
infallible, who are endowed with a sense of perceptions and impressions or
misimpressions, and wide latitude of discretion that varies according to situations and
surrounding circumstances. Like any ordinary mortal, a judge can commit errors in
his judgements. But as long as that errors are not deliberate or intentional errors,
anyone who is not satisfied with his judgements and rulings which sometimes do not
cater to his desires, the Rule of Court and other procedural laws are not wanting in
remedies and reliefs from the appellate courts.
As Atty. Jose W. Diokno enlightens us: “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 in order 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.”
“But it is not enough to prove everything. You must know when to present a
particular evidence so that it will have the most impact. You must know how to
conduct, how to ask questions of your witnesses so that it will be the witnesses
speaking to the court rather than you. You must not have only the right timing but the
right order. This is what will enable you to stress the image of your case. And all of
these is direct examination.”
“In addition, of course, to presenting all the evidence necessary to establish the theory
and the image of your case or defense, you must also keep out inadmissible evidence.
This is covered by the rules on objection and motions to strike. At the same time, you
must try to show or expose the weakness of you opponent’s case. The usual method is
by cross-examination. And finally, when you have evidence which is admissible but
which the court refuses to admit, then you must find the way of preserving your
record so that if the judgment is ultimately rendered against you then it can be
reviewed on appeal and the appellate court can take into account the evidence that the
trial court improperly excluded. This is governed by the rules o offer of evidence (Sec.
35, Rule 132, Rules of Court).
B.Offer of evidence – or presentation of evidence.
The offer of evidence starts with the direct examination of a witness, otherwise called
examination in chief. Before propounding the first question, as soon as the witness is
called to the witness stand, the first step that the lawyer should take, is to state the
purpose of the offer, the purpose for which the evidence is presented, for which the
witness is going to testify. The same purpose should be restated during the stage of
formal offer of evidence which consists of documentary exhibits and the testimonies
of the witness, which stage immediately precedes the manifestation from counsel
announcing to the court that he is resting its case. Unless the parties desire to submit
written memoranda or briefs, the case is deemed submitted for decision the moment
the party rests its 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 from the date the parties are notified
on open court that the case is deemed submitted for decision.
We are often deluded into believing that the court litigations are won or lost by an
effective cross-examination, as portrayed in the novels and television shows of trials
conducted in common law countries that use to observe jury system of trial. However,
in reality, especially here in the Philippines where a case is decided on the basis of the
evidence duly presented and admitted by the court, a case is won or lost depending on
how well or badly you conduct the direct examination. In fact, if the result of the
direct examination of a witness, hardly does a prima facie evidence to substantiate the
guilt of the accused beyond reasonable doubt, or preponderance of evidence to
substantiate the plaintiff’s allegations in his pleading exist, the conduct of the
cross-examination becomes unnecessary and superfluous. This is not to discount
certain chances, that cases are won or lost during the pre-trial stage and even at the
early stage of the formulation of pleadings.
A case in point is when the party fails to deny under oath an allegation of usury in
plaintiff’s pleading, in which case such party is deemed to have admitted having
committed usury and has practically lost his case. Likewise, if by availing of
discovery procedure, you have obtained relevant and crucial admissions from the
adverse party, you have practically won your case without having gone to trial.
In like manner, during the period of arraignment where plea bargaining comes into
play, a party may win his case so to speak, or may be able to obtain favorable
concessions that amount to victory. As for example when the accused is charged with
serious offense of murder, by the use of skillful negotiations techniques, a clever
practitioner can save his client from lethal injection and be entitled to probation if he
succeeds in convincing the trial prosecutor and the offended to agree to his client’s
pleading guilty to a lesser offense of homicide with the application of the attending
mitigating circumstances. Or better still, should the trial lawyer in defense of a client
against whom the evidence of guilt appears to be strong and has a slim chance for
acquittal, by availing of the procedural windfall of incomplete self-defense, and strive
to successfully prove the element s of incomplete self-defense thru the vehicle of
intelligent and good rapport with the presiding judge, thus obtaining the lowest
penalty for his client that will entitle him to the benefits of the probation law.
Much of the success in conducting an effective direct examination depends upon your
skill in interviewing first your client and then your client’s witnesses. We have
already dwelt on this subject in the early pages of this book extensively, but just to
emphasize the importance pf interview of witnesses, let us discuss here some more
pointers.
1. Interview of client and witnesses
In a lecture of Atty. Jose W. Diokno before the junior lawyers at the U.P Law Center,
some of his reminders are, “do not commit a mistake of interviewing your client only
a week before the trial. I have seen this happen too often. The matter of preparing for
direct examination, of course, begins with the initial interview with the client. Why?
Basically, because many times your client is your principal if not your only witness
and because you will first learn about the other evidence that you will have to present
during the direct examination from your client.”
Eminent authors on the art of legal interview, stress, “that we lawyers tend to
overlook, and it is the factor that the client affects us by his mannerisms, by his lack
of education in some cases, by his arrogance in others, in other cases by his
appearance; and we in turn affect the client by the way we act to the client. x x x It is
wrong for us to look at a problem solely from the client’s point of view. You have to
look at the problem – yes, from the client’s point of view. Correct. In order to get all
the facts, you have to place yourself in the client’s shoes. Yet, in order to imagine
what really happened, how the persons concerned behave so that you can ask
questions you must also put yourself in your own shoes. But after you have done this,
you must now get out from being in the client’s shoes and look at it from the way a
judge might look at it. So therefore, for one to be over solicitous also is wrong.”
In interviewing a client whose relative is detained in a mental hospital and who wants
his immediate release, Atty. Diokno continued, “Yes, I will take your case but with on
condition. I will go down and check to see your relative’s mental situation. I will talk
to the nurses and doctors that are attending to him too. And if I become convinced
that he is really sane, then I will take action. Otherwise, I said, “I am sorry, but I feel
that even though it was wrong to have committed him without any prior legal decision,
nevertheless, to file an action for habeas corpus to get him released, when we know
that when he is brought to court, the judge will be sure he is really off his head, will
be useless. It would be a waste of your time and mine and a waste of the court’s effort
and a tremendous degree of expenses. You will just have to accept the fact, the reality
that your relative may really be mentally unsound.”
“Once your client has brought his witnesses, the next step of course, is to
interview these witnesses and in the event that you have any doubts at all as to the
witnesses giving their statements, I particularly recommend trying to approach
adverse witnesses as early as possible or witnesses who tell you that they don’t know
anything.”
“Get their statements preferably in writing but if not, you can always use a tape
recorded in the course of your interview. Get them to tell you either the facts that they
know against your client’s case or if they don’t want to testify, get them to say “I
don’t know anything.” At least that way at the very least you have prevented the
adverse party from enlarging on the testimony of these witnesses or using these
reluctant witnesses for his case.”
“In the matter of taking statements I would like to tell you one favorite technique
and it’s still being used today. And that is, prepare a statement and make deliberate
mistakes. He cannot later claim that he did not read the statement, if he hadn’t read it
how could he have corrected it and initial in (in the statement, then let the witness
correct the mistakes and initial them). This is one of the oldest techniques there are for
establishing the authenticity and voluntariness of a statement.”
On the matter of final instructions for witnesses, there are certain points that I
think you should stress. The first point affects you and that is in your final preparation
of the witness, try to use the same questions, the same words, the same order of
questioning as you will on direct examination in court. Don’t prepare the witness to
answer on set of questions in your law office and then go to court and use different
high sounding words in court. He just won’t understand you. Don’t surprise you own
witness. Surprise you adversary’s witness but not your own.”
2. Carinal rules on direct examination
And Atty. Diokno continues, “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.”
“For example, “did you send him a letter?” “Yes, sir.” “Did he reply to
your letter?” “Yes, sir.” “Where is the reply?” “Here it is, sir.” “Your Honor, I
ask that this be marked Exhibit so and so.” “How do you know that this letter
comes from him?” “Because I know his signature.”
“Try to present your exhibits. Don’t make a big production out of your
exhibits unless they are really vital exhibits. Try to present them just as part of
the story so that you r witness will not feel that he is in a land of technicalities.
He will feel at ease because it’s normal human way of doing things.”
“Finally, you must have or develop the ability to express yourself clearly,
briefly, and cogently. And to do so, be on your feet. You must be like a cat.
Thrown in any direction, he always lands on his feet. This is the trial lawyer.
He doesn’t know. He prepares for everything. He has done his best but he
knows also that there is always going to be something unexpected coming up
and so he has to be able to have that quality of not giving up, and the more
difficult the situation the better he likes it. And this brings me back to what I
said earlier – courage, courage. I stressed this because integrity and courage
are qualities without which our profession cannot earn the respect of the
people. These are qualities without which you and I cannot call ourselves
lawyers, cannot call ourselves Filipinos, cannot even call ourselves human
beings.”
Being considered one of the most brilliant and successful trial lawyers during his
time, this writer cannot think of any other specimens in the conduct of direct
examination and a more effective method of putting questions across the witness, than
the following reproductions from Atty. Diokno’s method and style, viz.:
3. Laying the Predicate – (Ordinary conversation)
Q-
Do you know defendant X?
Q-
Were you present at any conversation about (subject matter of
action) in which defendant X took part?
a.
Q-
When and where did that conversation take place?
Q-
Who are present?
Q-
Please tell the Court what was said in that conversation.
Telephone conversation –
Example 1:
Recipient of Call
Q-
On January 20, 1975, did you receive a telephone call?
Q-
At what time?
Q-
Where?
Q-
Did you recognize the person at the end of the line?
A-
Yes, it was Mr. Y.
Q-
How did you know it was Mr. Y?
A-
First, because he identified himself as Mr. Y and also because I had
spoken with him many times before, personally and by phone, and I
know his voice.
b.
Q-
What was said by each of you in that telephone conversation?
A-
Mr. Y said x x x, I said x x x etc.
Alternative form –
Q-
Did you recognize the voice of your caller?
A-
Not at that time.
Q-
Were you later able to recognize the voice of your caller?
A-
Yes, sir.
Q-
How?
A-
Because after that conversation , I met Mr. Y personally on several
occasions and I became familiar with his voice (or he mentioned the
call he made to me on January 20, 1975).
Q-
Are you now able to state whose voice it was at the other end of the
line on January 20, 1975?
A-
Yes sir, it was Mr. Y.
Q-
What was said by each of you, etc?
Example 2: Originator of Call
Q-
On January 20, 1975, did you make a telephone call to anyone?
Q-
What number did you dial?
Q-
Whose number was that?
Q-
How do you know that the number was that of Mr. Y?
Q-
When you make the call, did anyone answer the telephone?
Q-
What did you say?
A-
I asked to speak to Mr. Y.
Q-
What did the person at the other end of the line reply?
A-
I am Y (or “Just a minute, I’ll see if he’s in).
Q-
What happened then?
A-
I said… he said… (or: after a short while, another voice said, “Hello,
Y speaking” or: “Hello, I asked Mr. Y”? and he answered “Yes.”)
*This is sufficient identification because of the presumption of regularity,
since no one normally would assume the identity of the person called when the
number dialed is listed in the name of the recipient of the call.
In calling a business office and speaking to an employee or officer of the firm,
the following form may be used:
Q-
Did anyone answer the telephone when you called?
A-
Yes sir.
Q-
What did that person say?
A-
Good morning, Y company.
Q-
What did you say?
A-
I asked to speak to the Manager.
Q-
What did the person at the other end of the line say?
A-
Just a minute, I’ll connect you to him.
Q-
What happened next?
A-
After a while, a different voice said “Good morning, Mr. Z here.
Can I do anything for you?
Q-
What did you say?
A-
I asked, “Are you the Manager?”
Q-
What did he reply?
A-
Yes, sir.
Q-
Was this the first time you had spoken to Mr. Y by telephone or
otherwise?
A-
Yes, sir.
Q-
Subsequently, did you have occasion to speak with Mr. Y?
A-
Yes sir, several times, personally and by telephone.
Q-
Can you now identify the voice of the person who identified himself
as Manager?
A-
Yes, sir it was Mr. Y.
Q-
Did you at that time know that Mr. Z was the Manager of Y
Company?
A-
No, sir.
Q-
Did you subsequently learn whether he was the Manager?
A-
Yes, sir.
Q-
How?
A-
I had received letters and advertisements from Y company with Mr.
Z’s name as Manager. Besides,I visited the office of Y Company
after that, and I met Mr. Z in his office, with the title manager.
Q-
What did you tell Mr. Y and what did he say to you during that
telephone conversation of January 20, 1975?
Ac.
I said … he said …
Telegram
Example 1. Recipient
Q-
Please examine this telegram, marked as Exhibit A, and tell the
Court if you recognize it.
A-
Yes, sir.
Q-
Why do you recognize it?
A-
Because I received this telegram from a messenger of the Bureau of
Posts on June 15, 1975.
Q-
Exhibit A purports to have been sent by defendant X. Do you know
whether defendant X really sent you Exhibit A?
A-
Yes, sir.
Q-
How do you know?
A-
I wrote to defendant X mentioning the telegram and he replied to my
letter. (Identify correspondence), or: I later received a confirmation
copy of the telegram signed by Mr. X (or his clerk) (identify). Or: I
sent him the goods that the telegram Exhibit A ordered ad he did not
return the goods to me (or he acknowledged receipt of the goods).
(Identify).
Example 2. Originator
Q-
What did you do then?
A-
I sent Mr. X a telegram accepting his offer.
Q-
Your Honor, I have served a notice to produce the telegram upon
defendant’s counsel. I ask that he produce the telegram now.
Adverse Counsel: Your honor, we do not have the telegram. My client never
received it.
Q-
Do you have a copy of the telegram you have just mentioned?
A-
Yes, sir.
Q-
Produce it please.
A-
(Witness does so)
Q-
Mark copy as Exhibit A.
Q-
Please tell the Court how Exhibit A was made?
A-
I dictated the contents to my secretary; and she brought the
original back to me with the copy, Exhibit A, I read the original and
copy. I saw that they were the same, signed both and told my
secretary to send out the telegram.
Q-
Do you know if the telegram was sent out?
A-
Yes, sir. The next day my secretary placed the copy of the
telegram on my des with the stamp of the Post Office and the receipt
for payment of the telegram fees. (Identify)*
*This is sufficient to place burden of evidence on recipient to prove
non-receipt of the telegram. However, where the telegram is vital to the
case, it is advisable to call on the representative of the telegraph office
which transmitted the telegram to prove transmission and on the telegraph
office that received the transmission to prove delivery of original to the
addressee.
d. Expert Witnesses
1. Elements of Proof
1.Possession of required license
2.College Degrees held; dates
3.Specialized studies or training during college and afterwards
4.Length of practice
5.Kind and type of practice and experience in field of subject
matter of testimony
6.Membership in professional organization
7.Whether witness has written books or articles on field of
specialization
8.Whether witness teaches or has taught specialty
9.Knowledge of literature on specialty
10.Part experience testifying as expert in field
11.Knowledge of facts of case
12.Opinion
13.Reasons for Opinion
14.Aids to arrive at explain opinion
e. Examples: Medical Specialist
Q-
State your name, age, and other personal circumstances.
Q-
When were you admitted to the practice of medicine? (If the
profession is a little known one, it is preferable to ask: What does a
meteorologist do? Is it necessary to take any examination to quality as a
meteorologist? Did you pass such examination, and if so, when and where?
Did you have a license?
Q-
From what university or college did you graduate and when?
Q-
Did you graduate with honors and if so what honors?
Q-
After graduation, did you specialize in any field of medicine?
Q-
What studies did you pursue and where?
Q-
Did you undergo any training in your specialty and if so, what and
where?
Q-
Since when have you been practicing your specialty?
Q-
How any patients, more or less, have you treated in the field of your
specialty? What books or articles?
Q-
How have these books or articles been received by you peers?
Q-
Have you taught your specialty in any school, college or university
and if so, where and for how long?
Q-
Are you a member of any professional organization and if so, please
name them?
Q-
Have you held any office in any of these organizations?
Q-
Are you familiar with the literature in the field of your specialty?
Q-
Have you testified in Court before as an expert in the field of your
specialty? How many times? Before what Courts?
Q-
Did you, on or about May 20, 1975, examine the plaintiff in this
case?
Q-
What was the purpose of the examination? (Identify and X-rays;
blood tests: ECG or EEG tapes, etc.)
Q-
What record if any, did you make of that examination?
Q-
When did you make these records? Identify.
Q-
The tests examinations you made, are they the usual test and
examination
for
persons
____________________?
suspected
of
suffering
from
Q-
As a result of your tests and examination, have you formed an
opinion as to whether plaintiff is suffering from ___________________?
Q-
What is your opinion?
Q-
What are the reasons for your opinions. In explaining these reasons,
please refer to any X-ray or the record you have identified in order to make
your explanations more readily understandable.
(The following questions may be added in order to fortify the qualifications
of the witness and his competency to testify as medico-legal expert)
Q-
In the College of Medicine where you graduated, were you taught
the kinds of wounds that may be inflicted on a human body?
Q-
What are these kinds of wounds?
Q-
Will you distinguish a contusion from a hematoma?
Q-
How about a bruise or a scratch, will you call it a wound?
Q-
Will you distinguish a lacerated wound from an incised wound, a
hacking wound, a punctured wound or a gunshot wound?
Q-
Will you describe the distinguishing characteristics of a gunshot
wound, between the point of entrance (POE from the point of exit, POX)
Q-
In the College of Medicine where you graduated, were you required
to take practical laboratory training as a requisite for graduation?
Q-
In the course of your laboratory training, were you taught how to
dissect a dead body of a human person?
Q-
How many cadavers have you opened up as part of your laboratory
training?
Q-
Have you taken a government examination by the Professional
Regulation Commission for medical practitioners?
Q-
When did you take such examination and did you pass it?
Q-
Have you undergone an internship training before taking the Board
examination for medical practitioners?
Q-
After passing the board examination did you at once go into solo
practice of medicine or were you employed first as a resident physician
with any government or private hospital?
Q-
Have you undergone any rural health training before taking the
board examination?
Q-
How long and where did you undergo this training?
Q-
For how many times did you testify in court as a medico-legal
expert?
Q- Have you taken any post-graduate course here or abroad in the field
of your specialization?
Q- Where and when or for how long?
Q- Now, as attending physician of the deceased so and so, who
requested you to conduct an autopsy examination of the dead body of the
deceased? Where and when?
Q- Who were present when you conducted the autopsy examination on
the dead body of the deceased?
Q- Who identified to you that the dead body you were examining is that
of the deceased Mr. X? Did any close kin of the deceased help identify to you
the dead body of the deceased?
Q- Do you know the name of this close relative?
Q- What is his/her relation to the deceased?
Q- Did you open up the body of the deceased? By the way, how many
wounds have you found on the dead body of deceased Mr. X?
Q- When you first saw the dead body of the deceased in your hospital
(or any place where the autopsy examination took place, what was his physical
condition?)
Q- Was the dead body of the deceased already in an advanced state of
rigor mortis? How and what are your reasons for this opinion?
Q- Have you extracted some traces of blood from the body of the
deceased after opening it up? Were they fresh blood or was the blood already
blackish in color?
Q- Based on the color of the blood that you have extracted from the
body of the deceased, will you tell the Court if how long has the deceased
been dead?
Q- Was he dead on arrival (DOA) upon being first admitted in your
hospital?
Q- Have you rendered or issued an autopsy report of your autopsy
examination? (If your Honor please, we ask that this autopsy report of Dr. so
and so, be marked as Exhibit A)
Q- On the basis of this autopsy report containing your findings of the
wounds that the deceased had sustained, will you point as to what portion of
the body the deceased did you find wound No. 2? (If your Honor please, may I
request that the findings of the doctor be bracketed and marked as Exhibit A-1,
signature of Dr. Palpak to be bracketed and marked as Exhibit A-2, the cause
of death as Exhibit A-3m the name of the deceased as Exhibit A-4)
Q- With you as a specimen, will you point to the court the specific area
on the victim’s body where you found this wound No. 3 contained in your
findings? How about wound No. 5, etc.?
Q- Will you tell the court which of these wounds do you consider fatal
and why?
Q- In your opinion, with the intervention of a timely and able medical
treatment, do you think the deceased would have survived? What are the
reasons for your opinion?
Q- In your opinion, do you think the victim would have died without
the intervention of a timely and able medical treatment? (in frustrated
homicide or murder cases)
Q- On the basis of four findings, what was the relative position of the
assailant/assailants to the deceased/offended party when wound No. 2 was
inflicted?
Q- On the basis of your findings, what weapon or weapons could have
inflicted these wounds? What are the reasons for your opinion?
Q- In your opinion, will the offended party suffer a permanent physical
deformity? What are the reasons for your opinion? (in physical injuries cases)
Q- What kind of permanent physical deformity and what part of the
victim’s body would be affected?
Q- When was the offended party Mr. so and so discharged from the
hospital?
Q- When the offended party was discharged from the hospital, was he
already completely healed of his wounds?
Q- How many days or how long had he continued submitting to you for
medical treatment after he was discharged from the hospital?
Q- Did you accomplish any clinical case record of offended
party/deceased? (Your honor, I request that this document which the doctor
identified as offended party’s clinical case record be marked as Exhibit B)
Q- I further request that the signature of the doctor found at the bottom
of this clinical case record of offended party be marked as Exhibit B-1.
f. Example: Handwriting Expert
(Qualify by questions or elements 1-10)
Q- Please examine this check, Exh. 1, and tell the Court if you have seen it
before.
A- Yes, I have.
Q- Please examine these documents, Exhs. 2 to 6, have you seen these before?
A- On July 8, 1975, you called me to your office, sir, showed me these checks
and asked me to compare the signature on the check Exh. 1, with the
signatures on the other documents, Exhs. 2 to 6 to determine if they were all
written by one and the same person.
Q- Did you make such examination?
A- Yes, sir. I did.
Q- Just what examination did you make?
A- I examined them macroscopically and microscopically. I examined them as to
line quality and slant, letter forms, and made a special examination to
determine whether or not there were pen lifts in unnatural place, patching or
overwriting.
Q- In the process of examination, what instruments did you use?
A- I used a 10x magnifier, a califier, a protractor, and a camera, besides
examining them with the naked eye.
Q- What did you use the camera for?
A- To make enlarged photographs of the signatures in order to illustrate and
better explain my findings.
Q- Produce the photographs you have made, please?
A- Here they are. (Marked in evidence)
Q- Are these photographs, true and accurate representations of the signatures you
examined?
A- Yes, sir, in enlarged form. All have been enlarged five diameters—that is,
twenty-five times in size.
Q- Did you prepare a written report of your findings?
A- Yes, sir, here it is (Mark in evidence)
Q- Please tell the Court what you found.
A- My examination disclosed the variation between questioned and standard
signatures as to slant, line quality, letter forms, pen lifts in unnatural places
and patching or overwriting.
Q- What did find as to slant?
A- The standard signatures had a practically uniform slant, whereas the disputed
signature, some letters were vertical, other slant and in one or two occasions
backhand.
Q- Please illustrate the findings as to slant by photographs.
A- The variation in slant is clearly visible in these photographs. Exhibits 2-A to
6-A, the enlarged photographs of Exhs. 2 to 6, show a uniform slant of
approximately 70 degrees to the right. However, as you can see from Exhibit
1-A, an enlarged photograph of Exh. 1, the slant is irregular. The letters A and
E are vertical; the letters D and C slant 45 degrees to the right; the letters F
and G slant 70 degrees to the left, that is opposite the slant in the genuine
signatures.(Witness pointing). (Follow up similar questions on line quality,
letter forms, patching and overwriting).
Q- Now as a result of the examination and findings you have just testified to,
have you formed an opinion as to whether the signature on the check Exh. 1
was written by one and the same person who wrote the standard signatures on
Exhibits 2 to 6?
A- Yes, sir. I have.
Q- What is your opinion?
A- It is my opinion that the person who signed the Check, Exh. 1 is not the same
person who signed the standard signatures, Exhs. 2 to 6.
g. Photographs
Example 1. Professional Photographer
Q- How long have you been a professional photographer?
Q- Do you have a license as such?
Q- Do you have an office or place of business as professional photographer and
where?
Q- Have you testified in Court before as a professional photographer?
Q- How often?
Q- In what courts?
Q- What studies did you undertake to prepare yourself for your career as a
professional photographer?
Q- See other questions under expert’s elements of proof.
Q- (To Clerk/Interpreter: Please mark these photographs as Exhs. 1 and 2). Don’t
you have anything to do with the making of these photographs?
A- Yes, sir. I took, developed, and printed these photographs.
QAQAQAQAQA-
How did it come about that you made the photographs Exhs. 1 and 2?
You hired my services to take them, sir.
Where did you take then?
At the corner of X and Y streets.
When did you take them?
On June 18, 1975 at about 10:00 AM.
Who were present when you took them?
The plaintiff, Mr. P and you, sir.
What instructions were given you, if any, before taking the photographs?
I was told to take accurate photographs of the intersection of X and Y streets,
showing the condition of the view from X street, and another from Y street.
Q- Did you follow instructions?
A- I did sir. The photograph, Exh. 1 shows the view of the intersection as seen
from X street. It was taken three meters away from the intersection. The
camera was at a height of four feet, to simulate the view of a driver sitting in a
Volkswagen car. I used a normal lens. The photograph, Exh. 2 shows the view
of the intersection as seen from Y street. It was taken from a height of eight
feet to simulate the view of a driver siting in a Hino truck. I used a normal lens,
and took the picture from a point three meters away from the intersection. In
both cases, I placed the camera to the right of the center line of the street, in
about the position of the driver of the vehicles would usually be.
Q- All these photographs, are Exhs. 1 and 2 fair and accurate representations of
the scene
they depict.
A- Yes, sir.
Q- The above would be followed by the plaintiff’s testimony or the testimony of a
witness familiar with the scene on the date of the incident in question, as
follows:
Q- Are you familiar with the intersection of X and Y streets, and if so why?
A- I am, because I pass by there almost everyday.
Q- Since when have you been passing by that intersection?
A- For several years now.
Q- From what directions have you approached the intersection?
A- From both X and Y streets, depending on where I come home from.
Q- Please examine Exhs. 1 and 2. Are these fair and accurate representations of
the intersection as existed on the date of the incident?
A- Yes, sir (or Yes, sir, except that, on the day of accident, there was some repair
being done on Y street at this point.) (Witness indicating)
Follow up with description of repair, location etc.
h. How to present a lay witness.
streets?
Q- Where is your home located in relation to the intersection of X and Y
AQAQA-
My house is at the North corner of the intersection.
Were you already living there on the date of the accident?
Yes, sir.
How long before that date were you living there?
For about a year.
Q- Please look at these photographs Exhibits 1 and 2. Are they fair and
accurate representations of the intersection of X and Y streets on the date of the
incident?
A- Yes, sir.
Q- (If above objected to). Do you recognize the scene shown on the
photographs, Exhs. 1 and 2?
A- Yes, sir, these pictures show the corner of X and Y streets. .
Q- Is your house shown in either of the photographs?
A- Yes, sis, it is here on Exh. 1 (Mark as Exh. 1-A) and here is Exh. 2 (Mark
as Exh. 2-A)
Q- On the date of the incident was the condition of the intersection the same
or different from the condition shown in the photographs?
A- The same, sir.
C. Grass Roots Plea-Bargaining
Earlier in this work, we have discussed some pointers on how to sustain an effective
negotiation and the application of practical negotiation techniques, with the view of
attaining a happy compromise in civil cases. Hence, jet us dwell more in detail on the
procedure and down to earth method of pursuing a plea-bargaining process in criminal
cases. In both criminal and civil cases, the use of effective negotiation techniques as a
useful instrument in litigation, is still the name of the game without which a
compromise agreement or plea bargaining is difficult to achieve. In any event, success
of failure in plea-bargaining still depend, largely on the lawyer's ability to put his idea
across the bargaining table, the use of hunches, his inborn talent, his skill, patience,
and above all, his power of persuasion and determination in getting what he wants.
As elsewhere pointed in this work, extralegal but not illegal or immoral weapons and
a lot of public relations are also indispensable. And when we speak of extralegal
remedies, we refer to those spontaneous and intuitive techniques that are not found in
the books, neither from the stocks of statute compilations and jurisprudence, nor from
hours upon 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 rumble of courtroom practice.
1. Specific cases
Some of these charges which may be the subject of plea-bargaining the beneficial
results of which are attained by pleading guilty to a lesser offense, regardless of
whether or not they are necessarily included in the offense charged, are the following:
1. Murder to Homicide
2. Frustrated Murder to Attempted Murder or Attempted Homicide or Serious
Physical 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
6. Less Serious Physical Injuries to Slight Physical Injuries
7. Robbery with Violence or Intimidation or with Force upon Things to
Simple Theft
8. Violation of P.D. No. 532 to Simple Theft
9. Qualified Trespass to Dwelling to Simple Trespass
10. Rape to Acts of Lasciviousness
11. Qualified Seduction to Simple Seduction
12. Attempted Homicide to Direct Assault
13. Direct Assault to Simple Resistance or Disobedience to Person in
Authority or his Agent
14. Death Resulting from Tumultous Affray to Serious or Less Serious
Physical Injuries
15. Robbery to Grave Coercion
16. Forcible Abduction to Consented Abduction
17. Grave Oral Defamation to Light Oral Defamation
18. Acts of Lasciviousness or Attempted Rape to Unjust Vexation
19. Open Court Proposals and Counter-proposals
The plea-bargaining process starts with an overture of negotiation and hard bargaining
in a person to person basis made by the parties thru their counsels highlighted by
making proposals and counter-proposals. Since the accused here is the interested party,
the first move usually comes from the defense lawyer, sometimes by an informal
telephone conversation or personal approach to the public or private prosecutor. The
venue may be inside or outside the courtroom, either weeks or months before the date
of arraignment or immediately before the arraignment, depending upon the
availability of the parties and the willingness of the Fiscal and the offended party to
entertain.
2. Consent of Fiscal and offended party required in plea of guilty to lesser
offense
The opportune time considered most ideal to start the plea-bargaining negotiation, is
during the wide gap between the receipt of notice of the arraignment from the court
and the date of arraignment, so as to prevent surprises and to 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. The
Presiding Judge's reaction is likewise considered pivotal, whose approval of such
move is essential, lest this proposal which the parties have taken pains to materialize,
happen to meet a hostile reaction from the court. Some Judges abhor last minute and
hodgepodge plea-bargaining negotiations as they tend to disrupt the court’s calendar
of business. Extra caution ought to be taken in obtaining the court’s consensus and
confirmation of the parties’ proposal, especially involving heinous crimes where the
court is mandated to conduct a searching inquiry to enable the accused to comprehend
the nature of his guilty plea. In many instances, last minute and haphazard plea
bargaining negotiations have resulted in an improvident plea of guilty by the accused
for failure to understand the nature of his plea, in the court’s haste to accommodate
the parties and also in a desire for a quick disposal of pending cases, thus resulting in
a miscarriage of justice and the of the judgment of conviction by the appellate court.
In any case, there is no necessity of amending the Information should the accused
decide to plead guilty to a lesser offense regardless of whether or not it is necessarily
included in that which is charged, or is cognizable by a court of lesser jurisdiction
than the trial court. However, lest it be forgotten that in pleas of guilty to a lesser
offense, the consent of both the public prosecutor and the offended party is required
(Section 2, Rule 116, Rules of Court). The usual practice is that the parties
represented by the public prosecutor and the defense counsel to approach the bench
which is preceded by a manifestation from either party, thus:
“Your Honor, may we approach the bench, considering that there are
overtures from the accused/prosecution regarding the intention of the accused
to withdraw his former plea of not guilty and change it to a plea of guilty to a
lesser offence, etc.”
This is of course assuming that negotiations had already been forged whereby the
accused had agreed to plead guilty to a lesser offense and after obtaining the prior
consent of the offended party and the public prosecutor to such plea of guilty to a
lesser offense. Again, this move is premised on the assumption that as part of the
forged agreement, efforts were made to include settlement of civil liability in favor of
the offended party.
3. When consent of the Fiscal is not required
Where the accused had decided to plead guilty to the crime as charged in the
information, or complaint, the prior consent if the public prosecutor and the offended
party is not required. However, the court is mandated to conduct a searching inquiry
into 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 guilty of the accused beyond reasonable doubt, and to determine the accused’s
degree of the culpability (Sec. 3, Rule 116, Rules of Court). 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 judgment of conviction becomes final (Sec. 4. Rule 116, Rules of
Court).
As soon as the parties have obtained the court’s permission to approach the bench,
efforts should not be spared in getting the consensus between the prosecution and
defense, and confirmed by the court as to the crime to which the accused intends to
plead guilty, the imposable penalty that will entitle the accused to the benefits of the
probation law and the amount of civil liability that the accused had agreed to pay the
complainant, so that all of these can be included in the dispositive portion of the
decision.
4. No particular form of plea-bargaining agreement
No particular form of agreement is prescribed to prove that a meeting of the minds
had been reached in order to enforce the plea-bargaining agreement. At most, you
may describe it as the highest form of gentlemen’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 by the bench and the bar as an unwritten norm of the
procedure with the binding force of law, once the accused has announced his
intention in open court to plead guilty to a lesser offense by formal motion by 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, whatever has been agreed in that
proceeding has a binding effect upon the parties and no party can renege on his
commitment on pains of being held in contempt of court, except upon showing of an
improvident plea of guilty.
Before the accused is allowed to enter a plea of guilty to a lesser offense than that
which is charged in the information, this must be proceeded by a formal motion from
accused’s counsel withdrawing his former plea, which must be reflected in the order
of the court. Thereafter, the accused shall be rearraigned during which the accused
shall enter his plea of guilty to a lesser offense. Should he desire to prove the
existence of mitigating circumstances to further reduce the penalty to bare minimum,
he shall be allowed to do so, without prejudice to the presentation of evidence by the
offended party to prove his claim for civil liability.
5. When to invoke Plea of incomplete self-defense
Another aspect in plea-bargaining with tremendous impact of eluding the death
sentence (now reclusion perpetua or life imprisonment, in view of the abolition of the
death penalty under R.A. No. 9346), is a proposal by the accused to interpose a plea
of incomplete self-defense. This is predicated on the assumption that the accused can
prove at least two elements of the complete self-defense namely:
(a) The unlawful aggression did not come from the accused;
(b) That he is not guilty of sufficient provocation; and
(c) That there is reasonable necessity of the means employed to repel or
prevent the aggression.
Under Article 69 of the Revised Penal Code:
“A penalty by one or two degrees than that prescribed by law shall be imposed if
the deed is not wholly excusable by reason of the lack of some of the condition
required to justify the same or to exempt from criminal liability in the several cases
mentioned in Article 11 and 12, provided that the majority of such conditions be
present. The courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption present or
lacking.”
“When the majority of the requisites of self-defense and two mitigating without
aggravating circumstances are present, the penalty is three degrees lower”.
“Thus, if the accused charged with homicide punishable by reclusion temporal
proved unlawful aggression on the part of the deceased and another requisite of
self-defense of self-defense, plus two mitigating of surrender and obfuscation, without
any aggravating circumstance, the proper penalty for him is arresto mayor medium or
from 2 month and 1 day to 4 months.”
This strategy may be availed of by a skillful trail lawyer when all the odds are
overwhelming against whom his client –accused against whom the evidence of guilt
for a charge of a capital offense appears to be strong. Of course, this plea may be
availed of not only in capital offenses, but also in crimes against persons like
Homicide or Serious and Less Serious Physical Injuries, where there is doubt whether
you will be able to obtain acquittal for your client for failure to prove all the elements
of. Complete self-defense or justifying or exempting circumstances under Article 11
and 12 of the Revised Penal Code.
The provisions of the Article 69 notwithstanding, the process of plea-bargaining still
plays an important role in order to attain success in the application of such provisions.
Simply put, the availment and application of these legal provisions is not automatic
and be demanded for the asking. Skill on the part of the trial lawyer in the art of
advocacy, a good public relations and rapport with the public prosecutor and the
Presiding Judge, a gift of keen foresight and imagination plus tremendous supply of
adrenalin, are considered indispensable qualities in the attainment of this goal. This is
so because if the move to prove the elements of self-defense encounters stiff
opposition from the prosecution, there is no assurance that the accused can enjoy the
benefits of reduced penalty by one or two or even three degrees lower, with the view
of availing of the provisions of the probation law.
Hence, the trial lawyer should master enough courage to approach the bench, invite
the Fiscal to talk to the judge in open court, or better still in the judge’s chambers
before the period of arraignment, for the purpose of obtaining certain favorable
concessions lie the imposition of the penalty by two or three degrees lower than that
imposed by law for the crime charged, and to be entitled to further liberality of being
allowed to present evidence to prove the existence of mitigating circumstances. Again,
all of these cannot be attained by mere display of brilliance and braggadocio, or by
antagonizing the judge and the public prosecutor when the sailing is rough by
frequent objections from the prosecutor which sustained by the court. When all is said
and done, you should bear in mind that the judge and the Fiscal are like any human
being, imbued with feeling of compassion for those who sincerely plead for it and
whose hearts can bend a little to the direction where the wind. Blows without
sacrificing justice and fair play.
6. Reversed procedure in plea of incomplete self-defense
Unlike the normal procedure in presentation of evidence the following accused’s
entry of not guilty during arraignment, whereby the prosecution is required the initial
presentation of evidence in a criminal proceeding, the peculiar mode being practiced
in practically all trial courts in this jurisdiction, in a plea of incomplete self-defense
and the existence of mitigating circumstances. This will be followed by the
presentation 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.
In the event, upon arraignment the accused responds by admitting the commission of
the act that is by killing or wounding the victims, but qualifies that he did so in the act
of defending his person, his relative or a stranger. 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 in the record. Thereafter, the court shall order the
accused to present his evidence to prove the circumstances that justify or exempt him
from total punishment for his act of killing or wounding the offended party.
Finally, when chances for acquittal is next to impossible for your client-accused, in
the light of the surrounding circumstances, and as lawyer, you ought to know whether
the odds are favorable or overwhelming against your client, the best that the lawyer
can do in defense of your client's cause without violating the lawyer's oath, is to
convince your client to admit the commission of the crime, and strive to plea bargain
for the imposition of a minimum penalty with the view of availing of the benefits of
the probation law. With the power of persuasion, you will be able to convince your
client that, rather than risk a trial on the merits and aspire for acquittal which appears
to be dim and elusive and which might probably result in the rendition of a maximum
penalty that will disqualify him from the benefits of the probation law, a plea of
incomplete self-defense that calls for the imposition of a penalty one or two or even
three degrees lower, means victory in the end that has an impact of acquittal. Ergo,
your client will feel happy, you are happy, everybody is happy for having cheated the
gas chamber
CHAPTER VI
HIERARCHY IN PHILIPPINE COURTS
The truism that every student of law should be conversant about before being
immersed into the practice of law is, that when we speak of courts involving the
Philippine judicial system, it refers to the hierarchical organization of courts of justice,
as defined in Article VIII of the Constitution, and the Judiciary Act of 1948, as
superseded by Batas Pambansa Big. 129, otherwise known as the Judiciary
Organization Act of 1980. Philippine judicial system is so designed into an
organizational structure in a ladder-like pattern, such that in seeking redress, one's
prayer should start from the lowest echelon, ascending to the highest tribunal of last
resort, the Supreme Court whose judgments are final and form part of the law of the
land. The pleader cannot prosecute his remedies directly with the Supreme Court, by
jumping over the lower courts that are also empowered to grant the relief he is
praying for, without being reprimanded or being subjected to disciplinary action and
running the risk of losing his case.
In Philnabank Employees association, et al. v. Hon. Estanslao, et al. 227 SCRA 804, it
was ruled that, “Even in cases where this Court is conferred with primary jurisdiction,
starting with the case of Santiago vs. Vasquez, et al., we have stressed, thus x x x We
discern in the proceedings in this case a propensity on the part of petitioner, and, for
that matter, the same may be said of a number of litigants who initiate recourses
before seeking relief directly from this Court despite the fact that the same, is
available in the lower courts in the exercise of their original or concurrent jurisdiction,
or is even mandated by law to be sought therein. This practice must be stopped, not
only because of the imposition upon the precious time of this Court but also because
of the inevitable and resultant delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better equipped to resolve the issues since
this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this
Court will not entertain direct resort to it unless the redress desired cannot be obtained
in the appropriate courts or where exceptional compelling circumstances justify
availment of a remedy within and calling for the exercise of our primary jurisdiction."
"Although not inflexible, we have repeatedly declined on grounds of prematurity,
as well as in the interest of good order, a hasty recourse to the courts when
administrative avenues are still open."
"While this case is styled as a petition for certiorari, there is, however, no denying
the fact that, in essence, it seeks the declaration by the court of the unconstitutionality
and illegality of the questioned rule, thus partaking the nature, in reality, of one for
declaratory relief over which this Court has only appellate, not original jurisdiction”
And in Manalo vs Gloria, 236 SCRA 130, this doctrine of hierarchical structure of
courts was again elucidated thus, Even granting that the petitioner can avail herself of
the writ of mandamus, we find no special or cogent reason to justify acceptance of
this petition as an exception to this court’s policy concerning the hierarchy of courts
in relation to cases where it was concurrent jurisdiction with the Regional Trial Court
and the Court of Appeals. In People vs Cuaresma, 172 SCRA 415, this court stated:
“A last word. This court’s original jurisdiction to issue writs of certiorari (as well
as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not
exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of
First Instance), which may issue the writ, enforceable in any part of their respective
regions. It is also shared by this Court, and by the Regional Trial Court, with the
Court of Appeals(formerly, Intermediate Appellate Court), although prior to the
effectivity of Batas Pambansa Blg. 129 on August 14, 1981, the latter’s competence to
issue the extraordinary writ was restricted by those “in aid of its appellate
jurisdiction”. This concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is after all a
hierarchy of courts. That hierarchy is determinative of the venue of appeals, and
should also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level
(inferior) courts should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy that is necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further overcrowding of the Court's docket.
Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this
regard, supra, resulting from the deletion of the qualifying phrase, "in aid of its
appellate jurisdiction" was evidently intended precisely to this Court pro tanto of the
burden of dealing with applications for exetraordinary writs which, but for the
expansion of the Appellate Court's corresponding jurisdiction, would have had to be
filed with it."
ORGANIZATIONAL STRUCTURE OF COURTS
With the exception of the Supreme Court which is the creation of the Constitution
itself or which is oftentimes referred to as the constitutional court, and highest court
of the land, all other courts from the Court of Appeals, Sandiganbayan, Court of Tax
Appeals, Regional Trial Courts, Family Courts, Shari’a Courts, down to the lowest
courts in the municipal level (Metropolitan Trial Coutts, Municipal Trial Courts in
Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts) are known as
statutory courts because they are created by Statutes
Supreme Court
Under Sec. 5 (l), Art. Vlll of the Constitution, the Supreme Court which is the last
arbiter of all questions of law, is composed of the Chief Justice and fourteen
Associate Justices, and sits en banc or, in its discretion, in divisions of three, five or
seven Members.
A decision or resolution of a division of the Supreme Court, when concurred in by a
majority of the members who actually took part in the deliberations on the issues in a
case and voted thereon, and in no case without the concurrence of at least three of
such members, is a decision or resolution of the Supreme Court. When the required
number is not obtained, the case shall be decided en banc. But no doctrine or principle
of law laid down by the Supreme Court in a decision rendered en banc or in division
may be modified or reversed except by the court sitting en banc. The participation of a
Justice of the Supreme Court may be disqualified for the reasons stated in Sec. 1, Rule
137, Rules of Court. When his participation is challenged, the Justice sits with the
Supreme Court and the question is decided by the Supreme Court as a body. If the
ground Of disqualification is mandatory, the Justice concerned should inhibit.
However, where the motion for disqualification is presented after decision has been
rendered either en banc or in division with the Justice concerned having participated
and cast his vote without any objection from an source, the motion should be denied
because no litigant should be permitted to speculate upon the action of the Supreme
Court and the raise the objection of the sort after the decision has been rendered. If the
ground for disqualification is other than mandatory, It is for the Justice concerned
alone to determine his qualifications. (Sec. 4 [1-3], Art. VIII, Constitution; Circular
No. 2-89, February 7, 1989, En Banc, Minute Resolution).
The conclusions of the Supreme Court in any case submitted to it for decision en banc
or in division shall be reached in consultation before the case is assigned to a Member
for the writing of the opinion of the Court who is called the ponente. A certification to
this effect signed by the Chief Justice shall be issued a copy thereof attached to the
record of the case and served upon the parties. Any member who took no part, or
dissented, or abstained from a decision or resolution must state the reason thereof.
(Sec. 13, Art. VIII of the Constitution; the same procedure shall be observed by all
collegiate courts lower than the Supreme Court.)
Under Sec. 30, Art. VI of the 1987 Constitution, “no law increasing the appellate
jurisdiction of the Supreme Court can be passed without its advice and consent.” This
doctrine was enunciated in (Fabian v. Hon. Desierto, Gr. No. 129742, Sept. 16, 1998,
295 SCRA 471) where the court declared as unconstitutional Sec. 27 of RA No. 6770
(Ombudsman Act of 1989), and Sec. 7 Rule III of Administrative Order No. 07 (Rules
of Procedure of the Office of the Ombudsman), and any other provisions of the law or
issuance implementing the Act insofar as they provide for appeals in administrative
disciplinary cases from the Office of the Ombudsman in administrative disciplinary
cases, expanded the appellate administrative disciplinary cases, expanded the
appellate jurisdiction of the Supreme Court pointed out that its appellate jurisdiction
was to be exercised only over “final judgments and orders of lower courts,” which
were the courts composing the integrated judicial system, and did not include the
quasi-judicial bodies or agencies. Consequently, the Supreme Court decided that the
appeal from the Office of the Ombudsman should henceforth be brought to the Court
of Appeals under Rule 43, Revised Rules of Civil Procedure, which was precisely
formulated and adopted to provide for a uniform rule for appellate procedure for
quasi-judicial agencies.”
Court of Appeals
The Court of Appeals is classified as a statutory court because it is created by a statute.
(Executive Order No. 33 of President Corazon Aquino dated July 28, 1986) It is
composed of a Presiding Justice and 68 Associate Justices, and discharges its
functions, power and duties, thru 23 divisions of three members each. The Court may
sit en banc for the purpose of exercising administrative, ceremonial, or other
non-adjudicatory functions.
“The Presiding Justice and the Associate Justices shall have the same
qualifications as those provided in the Constitution for Justices of the
Supreme Court.”
The Court of Appeals shall have its permanent stations, viz,: the first 17 divisions
shall be stationed in the City of Manila for cases coming from the First to the Fifth
Judicial Regions; 18th, 19th, and 20th Divisions shall be stationed in Cebu City for
cases coming from the 6th, 7th and 8th Judicial Regions; the 21st, 22nd and 23rd
Divisions shall be stationed in Cagayan de Oro City for cases coming from the 9th,
10th, 11th and 12th Judicial Regions. (Sec. 10 as amended by RA No. 8246.)
“A majority of the members of the Court shall constitute a quorum for the session
en banc. Three members shall constitute a quorum for the sessions of a division. The
unanimous vote of the three members of a division shall be necessary for the
pronouncement of a decision or final resolution, which shall be reached in
consultation before the writing of the opinion by any member of the division. In the
event that the three members do not reached a unanimous vote, the Presiding Justice
shall request the Raffle Committee of the Court for the designation of two additional
justices to sit temporarily with them, forming a special division shall be necessary for
the pronouncement of a decision or final resolution. The designation of such
additional Justices shall be made strictly by raffle.” (Sec. 11, BP 129, as amended by
EO 33; Rule 51, Secs.2 and 3)
“Whenever demanded by public interest, or whenever justified by an increase in
case load, the Supreme Court upon its own initiative or upon recommendation of the
Presiding Justice of the Court of Appeals, to hold sessions periodically, or for such
periods and at such places as the Supreme Court may determine, for the purpose of
hearing and deciding cases. Trials or hearings in the Court of Appeals must be
continuous and must be completed within three months unless extended by the Chief
Justice of the Supreme Court. (Sec. 10, BP 129, as amended by RA No. 8246)
The Court of Appeals has both original and appellate jurisdiction as follows:
1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary writs or processes whether
or not in aid of its appellate jurisdiction. (Sec. 9 [1], BP 129, as amended
by RA 7902)
2) Exclusive original jurisdiction of Regional Trial Courts. (Sec. 9 [2], BP
129, as amended by RA 7902)
3) Exclusive appellate jurisdiction over final judgments, decision, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards, or commissions, including the Securities and
Exchange Commission, the Social Security System, the Employee’s
Compensation Commission, and the Civil Service Commission, except
those falling within the appellate jurisdiction of the Supreme Court in
accordance with the Constitution, the Labor Code of the Philippines or P.D.
442, as amended the provisions of BP 129, and subparagraph (1) of the
third paragraph of Sec. 17 of the Judiciary Act of 1948. (Sec. 9 [3], BP 129,
as amended by RA No. 7902; Rule 43 governs appeals to the Court of
Appeals from the judgments and final orders of the Court of Appeals from
the judgments and final orders of the Court of Tax Appeals and
quasi-judicial agencies, including judgments and final orders under the
Labor Code and the NLRC, as ruled in the case of St. Martin Funeral
Home v. NLRC, Gr. No. 10866, September 16, 1998, 295 SCRA 494)
4) Power to try cases and conduct hearings, receive evidence and perform any
and all acts necessary to resolve factual issues raised in cases falling within
its original and appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings. (Sec. 9 [2], BP 129, as amended
by RA 7902 in relation to Rule 53 on New Trial)
Sandigabayan
By constitutional mandate, the Sandigabayan was created as a special court by PD
1606 which took effect on December 10, 1978, “to try and decide criminal and civil
cases involving graft and corrupt practices and such other offenses committed by
public officers and employees, including those in government-owned and controlled
corporations, in relation to their office as may be determined by law.”
In Republic of the Philippines v. Judge Ascunsion, et al., 231 SCRA 211, the
Sandigabayan is classified as a regular court of special jurisdiction, the functions and
structure of which were reorganized by RA 7975 (Act to strengthen the Functional
and Structural Organization of the Sandiganbayan, amending for that purpose P.D.
1606, which took effect on May 16, 1995.)
The Sandigabayan shall sit in divisions of three Justices each. The divisions may sit at
the same time. (Sec. 2, PD 1606, as amended by RA 8249) The decisions and final
orders of the Sandigabayan are appealable to the Supreme Court by petition for
review on certiorari raising pure questions of law in accordance with Rule 45 of the
Rules of Court. In cases where the penalty imposed by the Sandiganbayan is reclusion
perpetua or life imprisonment, the decision shall be appealable to the Supreme Court
in accordance with the Rules of Court, i.e. by notice of appeal (Sec. 7, PD 1606, as
amended by the RA 8249); pursuant to Sec. 9, Rule 45, an appeal by petition for
review on certiorari under Rule 45 cannot apply in criminal cases where the penalty
imposed is reclusion perpetua or life imprisonment, because the mode of appeal is by
notice of appeal. Note: Automatic review no longer applies by the enactment of RA
No. 9346 abolishing the death penalty that the trial court could impose is reclusion
perpetua or life imprisonment.
Jurisdiction of the Sandiganbayan
a) Violations of RA 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act; RA 1379; and Chapter II, Sec. 2, Title VII, of
the Revised Penal Code (Art. 210. Corruption of Public Officials where
one or more of the accused are officials occupying the following positions
in the government, whether in a permanent, acting or intern capacity, at the
time of the commission of the offense:
1. Officials of the executive branch occupying the positions of the
regional director and higher, otherwise classified as salary grade 27
and higher, of the Compensation and Position Classification Act of
1989 (RA No. 6758), specifically including:
1) Provincial governors, vice-governors, members of the
sanguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other city department heads;
2) City mayors, vice-mayors, members of the Sanguniang
panlungsod, city treasurers, assessors, engineers, and other
city department heads;
3) Officials of the diplomatic service occupying position of
consul and higher;
4) Philippine army and air force colonels naval captains. And
all officers of higher rank;
5) PNP Officers while occupying the position of provincial
director and those holding the rank of senior superintendent
or higher;
6) City and Provincial Prosecutors, their assistants, and
officials and prosecutors in the Office of the Ombudsman
and special prosecutor;
7) Presidents, directors or trustees, or managers of
government-owned or government-controlled corporations,
state universities or educational institutions or foundations;
8) Members of Congress and officials thereof classified as
grade 27 and up under the Compensation and Position
Classification Act of 1989;
9) Members of the Judiciary without prejudice to the
provisions of the Constitution;
10) Chairmen and members of Constitutional Commissions
without prejudice to the provisions of the Constitution;
11) All other national and local officials classified as grade 27
and higher under the Compensation and Position
Classification Act of 1989;
12) Over all other offense or felonies whether simple or
complexed with other crimes committed by the
abovementioned public officials and employees in relation
to their office; and
13) Over civil and criminal cases filed pursuant to and in
connection with the Executive Order Nos. 1, 2, 14 and 14-a
issued in 1986.
Under RA 7691, the law on expanded jurisdiction of lower courts, exclusive
jurisdiction shall be vested in the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be,
pursuant to their respective jurisdictions as provided in BP 129, as amended, over
criminal cases where none of the accused is occupying positions corresponding to
salary grade 27 or higher, as prescribed in RA 675. Or is a military and PNP officer
mentioned in Sec.. 4 of PD 1606 as amended.
In order to determine whether the accused is a public officer who will come under the
purview of RA 3019, the definition under Art. 203 of the Revised Penal Code shall
apply thus: “Who are public officer. – For the purpose of applying the provisions of
this and the preceding titles of this book, any person who, by direct provision of law,
popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or
shall perform in said Government or in any of its branches public duties as an
employee.”
In conjunction with the foregoing definition, RA 3019 likewise defines “public officer”
to practically cover all kinds of public servants, whether temporary or permanent.
Causal or emergency employees, thus:
Sec. 2 (b) “Public officer” includes elective appointive officials and
employees, permanent or temporary, whether in the classified or unclassified or
exempt service receiving compensation, even nominal, from the government as
defined in the preceding subparagraph.” This includes “officials occupying
positions in the government whether in the national or local level,
government-owned or government-controlled corporations, and all other agencies
and in the instrumentalities of the Republic of the Philippines, whether in a
permanent, acting or interim capacity at the time of the commission of the
offense.
Likewise private individuals who are charged as co-principals, accomplices
or accessories with the public officers or employees, including those employed in
government-owned or government-controlled corporations, shall be tried jointly
with said public officers and employees in the proper courts which shall exercise
exclusive jurisdiction over them. Where the information does not change the
private individuals as co-principals, accomplices or accessories with the public
officer or employees in the commission of an offense under the jurisdiction of the
Sandiganbayan, and unless the private individuals shall be proven to be public
officers, the Sandiganbayan will have no jurisdiction over the offense charged.”
(Azarcon v. Sandiganbayan, 268 SCRA 747)
Corollary to the foregoing provisions, RA 7691 which took effect on April 15, 1994,
has expanded the jurisdiction of the MTC’s in criminal cases, amending Sec. 32 of BP
129 for that purpose, providing that “Exclusive original jurisdiction over all offense
punishable with imprisonment not exceeding six (6) years irrespective of the amount
of fine, and regardless of other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated thereon, irrespective of kind,
nature, value or amount thereof: Provided, however, That in offenses involving
damages to property through criminal negligence, they shall have exclusive original
jurisdiction thereof.”
The essential elements therefore of a criminal charge to fall under the jurisdiction of
the Sandiganbayan are as follows:
a) The offense must be committed by any public official or employee
mentioned in Sec. 4, PD 1606 , as amended;
b) That the offense committed must be in relation the public office of the
public official or employee. Absent any of the foregoing elements, the
jurisdiction will fall withini the RTC if the penalty prescribed for the
offense is higher that prision correctional or imprisonment for six (6)
years, or a fine of P6,000.00, otherwise, the proper MTC or MTCC will
have jurisdiction.
Regional Trial Courts
In the organizational structure of the Philippines judicial system, each Brach of the
Regional Trial Courts within the region, is prescribed by a single Judge, whether in a
mutlitple sala court or single sala court. In multiple sala courts, there is an Executive
Judge who is designated by the Supreme Court to discharge administrative functions
over all the Branches and MTCs sitting within the territorial area as defined I BP 129,
for a period of two (2) years unless reappointed. In single sala courts, the Presdiing
Judge of the particular Branch acts as an Executive Judge exercising administrative
functions over the MTC’s sitting within the territorial jurisdiction of the area as
defined by the Supreme Court.
“Appointment and assignment of Regional Trial Judges. – Every Regional
Trial Judge shall be appointed to a region which shall be his permanent station,
and his appointment shall state the branch of the court and the seat thereof to
which he shall be originally assigned. However, the Supreme Court may assign
temporarily a Regional Trial Judge to another region as public interest may
require, provided that such temporary assignment shall not last longer than six (6)
months without the consent of the Regional Trial Judge concerned,” (Sec. 17, BP
129)
“Authority to define territory appurtenant to each branch. – The Supreme
Court shall define the territory over which a branch of the Regional Trial Court
shall exercise authority. The territory thus defined shall be deemed to be the
territorial area of the branch concerned for purposes of determining the
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts over which the said branch may exercise appellate jurisdiction. The power
herein granted shall be exercised with a view to making the courts readily
accessible to the people of the different parts of the region and making the
attendance of litigants and witnesses as inexpensive as possible.” (Sec. 18, BP
129)
The Regional Trial Courts shall exercise original jurisdiction in the following cases:
1. Actions where the subject of litigation is incapable of pecuniary
estimation;
2. Actions involving the title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved
exceeds P20,000.00, or, for civil actions in Metro Manila, where such
value exceeds P50,000.00 except actions for forcible entry and
unlawful detainer of lands and buildings;
3. Actions in admiralty and maritime jurisdiction, where the demand or
claim exceeds P200,000.00, or in Metro Manila, where such gross
value exceeds P400, 000.00;
4. Matters of probate, both estate and intestate, where the gross value of
the estate exceeds P200,000.00 or, in Metro Manila, where such gross
value exceed P400,000.00;
5. Actions involving the contract of marriage and marital relations;
6. Cases not within the exclusive jurisdiction of any court, tribunal,
person, or body exercising judicial or quasi-judicial functions;
7. Actions and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court (now Family
Court) and of a Court of Agrarian Relations Court (now Special
Agrarian Court) as now provided by law; and
8. All other cases where the demand, exclusive of interests, damages of
whatever kind, attorney’s fees, litigation expenses, and cost or the
value of property in controversy exceeds P200,000.00 or in such other
cases in Metro Manila, where the demand, exclusive of the
aforementioned items, exceeds P400,000.00. (Sec. 19, BP 129, as
amended by Sec. 1, RA 7691, effective April 15, 1994) Under Court
Administrative Circular No. 21-99, the amount of the demand to
exceeding P300,000.00, outside of Metro Manila and P400,000.00 in
Metro Manila.
Regional Trial Courts likewise exercise original jurisdiction in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which
may be enforced in any part of their respective regions, as well as in actions affecting
ambassadors, and other public ministers and consuls. (Sec. 21, BP 129)
With respect to criminal cases, Regional Trial Courts exercise original exclusive
jurisdiction involving offenses where the imposable penalties are imprisonments
exceeding six (6) years, irrespective of the amount of the fine, and regardless of other
imposable accessory or other penalties, including civil liability arising from such
offenses or predicated thereon, irrespective of the kind, nature, value or amount
thereof. (Sec. 20. in relation to Sec. 32, BP 129, as amended by sec. 2, RA 7691)
"Regional Trial Courts exercise appellate jurisdiction over all cases decided by
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
Within their respective territorial jurisdictions. Such cases shall be decided on the
basis of the entire record of the proceedings had in the court of origin such
memoranda and/or briefs as may be submitted by the parties or required by the
Regional Trial Courts. The decision of the Regional Trial Courts in such cases shall
be appealable by Petition for review to the Court of Appeals which may give it due
course only when the petition shows prima facie that the lower court has committed
an error of fact or law that Will warrant a reversal or modification of the decision or
judgment sought to be (Sec. 22, BP 129)
If however, the criminal case appealed to the Regional Trial Court from the
Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court
involved one of the offenses enumerated in Rep. Act No. 8249 committed by public
officials and employees of any government owned or controlled corporation or
instrumentality belonging to grades lower than salary grade "27" under the
Compensation and Position Classification Act of 1989 (RA 6758), the decision of the
Regional Trial Court shall be appealable by petition for review to the Sandiganbayan.
(Sec. 4, PD 1606, as amended by Sec. 4, RA 8249)
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts
Under Sec. 2, Rule 5 of the Revised Rules of Court, the term "Municipal Trial Courts"
as used in these Rules, shall include Metropolitan Trial Courts, Municipal Trial Court
in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts.
“The procedure in the Municipal Trial Courts shall be the same as in the Regional
Trial Courts, except (a) where a particular provision expressly or impliedly applies
only to either of said courts, or (b) in civil cases governed by the Rule on Summary
Procedure." (Sec. 1, Rule 5)
“There shall be created a Metropolitan Trial Court in each metropolitan area
established by law, a Municipal Trial Court in each of the other cities or
municipalities, and a Municipal Circuit Trial Court in each circuit comprising such
cities and/or municipalities as are grouped together pursuant to law." (Sec. 25, BP 129)
The Supreme Court shall constitute Metropolitan Trial Courts in such other
metropolitan areas as may be established by law whose territorial jurisdiction shall be
co-extensive the cities and municipalities comprising the metropolitan area. (Sec. 31,
BP 129)
"Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts shall exercise exclusive original jurisdiction over:
(a) Civil actions and probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the value of the
property estate, or amount of the demand does not to exceed P200,000.00,
or in Metro Manila where such personal property, estate or amount of the
demand does not exceed P400,000.00, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs the amount of
which must be specifically alleged, provided that the interest, damages of
whatever kind, attorney's fees, litigation expenses, and costs shall be
included in the determination of the filing fees;
(b) Forcible entry and unlawful detainer cases; and
(c) All civil actions which involve title to, or possession of, real property or
any interest therein where the assessed value of the property or interest
therein does not exceed P20,000.00, or, in civil actions in Metro Manila,
Where such assessed value does not exceed P50,000.00, exclusive of
interest, damages of whatever kind, attorney’s fees, litigation expenses and
costs.
Under RA 7691, Sec. 5, "After five (5) years from the effectivity of this Act (April 15,
1994) the jurisdictional amounts mentioned in Sec. 19 (3), (4) and (5); and Sec. 33 BP
129 as amended by this Act, shall be to two hundred thousand pesos (P200.000.00)
amounts shall Five (5) be years' thereafter, such jurisdictional amounts shall be
adjusted further to Three Hundred thousand pesos (P300,000.00): Provided, however,
that in the case of Metro Manila, the above-mentioned jurisdictional amounts shall be
adjusted after five (5) years from the effectivity of this Act to Four Hundred thousand
pesos. In Circular No. 21-99 of Court Administrator Alfredo Benipayo dated April 15,
1999, the first adjustment of the jurisdictional amounts took effect on March 20, 1999.
Where in an action there are several claims or causes of action between the same or
different parties embodied in the same complaint; the amount of the demand for
purposes of determining jurisdiction shall be the totality of the claims in all the causes
of action, irrespective of whether the causes of action arose out of the same or
different transactions. (Sec. 33; EP 129, as amended by RA 7691 which took effect on
April 15, 1994)
Where the land involved is not declared for taxation purposes, the value of such
property shall be determined by the assessed value of the adjacent lots. In forcible
entry and unlawful detainer cases, whenever the defendant or defendants should raise
the question of ownership and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to
determine the issue of possession. Such judgment shall be conclusive with respect to
possession only and shall in no case bind the title or affect the ownership of the land
or building which shall not bar an action between the same parties respecting title to
the land or building. (Sec. 18, Rule 70) The MTCs, MTCCs. MTCs and MCTC's shall
have exclusive original jurisdiction over the following criminal cases:
a. All violations of city or municipal ordinances committed within their
respective territorial jurisdictions;
b. All offenses punishable by imprisonment of not more than six (6) years,
irrespective of the amount of fine, and regardless of other imposable
accessory or other penalties including the civil liability arising from such
offenses or predicated thereon, irrespective of kind, nature, value or
amount thereof; and
c. All offenses involving damage to property through criminal negligence
regardless of the amount of fine imposable. (Sec. 32, BP 129, as amended
by sec. 2, RA 7691)
d. All offenses, including violations of RA 3019, RA 1379, and Arts. 210 to
212 of the Revised Penal code, committed by public officers and
employees in relation to their office, including those employed in
government owned or controlled corporations, and by private individuals
charged as co-principals, accomplices or accessories, where the penalty is
not more than 6 years of imprisonment regardless of fine or accessory or
other penalties, provided that the position of the accused official or
employee is lower than Salary Grade "27" under the Compensation and
Position Classification Act of 1989 (RA 6758) in relation to Sec. 4, PD
1606 as amended by Sec. 4, RA 8249.
Family Courts
The Family Court is created by Republic Act No. 8369, otherwise known as the
Family Courts Act of 1997, entitled “An Act Establishing Family Courts, Granting
Them Exclusive Original Jurisdiction over Child and Family Cases, amending Batas
Pambansa BP 129, as amended. There shall be a family court in every city and
province in the Philippines and where the city is the capital of the province, the
Family Court shall be established in the municipality which has the highest population.
(Sec. 3, RA 8369) The qualifications of Judges of family courts shall be the same as
those of Judges of the Regional Trial Courts. (Sec 4, RA 8369)
Family courts shall exercise exclusive original jurisdiction over the following
cases:
a. Criminal cases where one or more of the accused is below eighteen (18)
years of age but not less than nine (9) years of age, or where one or more
of the victims is a minor at the time of the commission of the offense:
Provided, That if the minor is found guilty, the court shall promulgate
sentence and ascertain any civil liability which the accused may have
incurred, but the sentence shall be suspended without need of application
pursuant to Presidential Decree No. otherwise known as the Child and
Youth Welfare Code;
b. Petitions for guardianship, custody of children, habeas corpus in relation to
the latter;
c. Petitions for adoption of children and the revocation thereof;
d. Complaints for annulment of marriage, declaration of nullity of marriage
and those relating to marital status and property relations of husband and
wife or those living together under different status and agreements,
petitions for dissolution of conjugal partnership of gains;
e. Petitions for support and/or acknowledgment;
f. Summary judicial proceedings brought under the provisions of Executive
Order No. 209, otherwise known as the Family Code of the Philippines;
g. Petitions for declaration of status of children as abandoned or neglected
children, petitions for voluntary or involuntary commitment of children;
the suspension, termination, or restoration of parental authority and other
cases cognizable under Presidential Decree No. 603, Executive Order No.
56 (Series of 1986) and other related laws;
h. Petitions for the constitution of the family home;
i. Cases against minors cognizable under the Dangerous Drugs Act, as
amended;
j. Violations of Republic Act No. 7610, otherwise known as the Special
Protection of Children Against Child Abuse, Exploitation and
Discrimination Act, as amended by Republic Act No. 7658;
k. Cases of domestic violence against (a) women, which are acts of gender
based violence that result, or are likely to result in physical, sexual or
psychological harm or suffering to women; and other forms of physical
abuse such as battering or threats and coercion which violate a woman's
personhood, integrity and freedom of movement; and (b) children, which
include the commission of all forms of abuse, neglect, cruelty, exploitation,
violence, and discrimination and all other conditions prejudicial to their
development.
In order to effectuate its judgments and final orders, the family court is
empowered to issue the following special provisional remedies, viz.:
a) In cases of violence among immediate family members living in the same
domicile or household to issue a restraining order against the accused or defendant
upon a verified application by the complainant or victim for relief from abuse; and
b) To order the temporary custody of children in all actions for their custody; and
to order support pendente lite including deduction from the salary and use of conjugal
home and other properties in all civil actions for support. (Sec. 7, RA 8369)
Decisions and orders of the Family Courts shall be appealed in the same manner and
procedure as appeals from the Regional Trial Courts. (Sec. 14, RA 8369)
Pending the constitution and organization of Family Courts and the designation of the
Regional Trial Courts as Family Courts in accordance with Sec. 17, RA 8369, all
criminal cases covered by items 1, 9 and 10, above which are still pending in the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts, except those already submitted for decision as of
March 1, 1999, are required to be transferred to the proper Regional Trial Courts to be
assigned by raffle for trial and further proceedings by such branches designated to
handle juvenile and domestic relations cases and cases involving youthful offenders
Should there be no branch thus designated, such cases shall be raffled to the branches
of the Regional Trial Courts. (Supreme Court En Banc Resolution in A.M. 99-1-13
SC promulgated on February 9, 1999 and effective March 1: 1999, entitled: Re:
Transfer to Regional Trial Courts of Cases Falling within the jurisdiction of the
Family Courts from the MeTC, MTC C's, MTC's and MCTC's)
Shari'a Courts
There are two categories of Shari'a Courts under the Code of Muslim Personal Laws
of the Philippines, (Presidential Decree No. 1083) which are considered as part of the
Philippine judicial system, namely: the Shari'a District Courts which are in the same
level as the Regional Trial Courts, and the Shari'a Circuit Courts which are in the
same level as the Municipal Trial Courts.
The Shari'a Circuit Courts have exclusive original jurisdiction over the following
cases:
a) all actions and proceedings between parties who are Muslims or have been
married in accordance with Art. 13 of the Muslim Code involving disputes relating to
marriage, divorce recognized under the Muslim Code, betrothal or breach of contract
to marry, customary dowry (mahr), disposition of property upon divorce, maintenance
and support and consolatory gifts (mu’a), and restitution of marital rights;
b) all cases involving disputes relative to communal property; and
c) divorce by Talaq and Tafwid.
As to criminal cases, the Shari'a Circuit Courts have jurisdiction over:
a) offenses against: customary law;
b) illegal solemnization of marriage under the Muslim Code;
c) marriages before the expiration of the prescribed idda;
d) offenses relative to subsequent marriage, divorce, and revocation of divorce;
e) failure to report for registration any fact as required under the Muslim Code;
f)
neglect of duty of registrars to perform under the Muslim Code; and the duty
g) all other cases involving offenses defined and penalized under the Muslim
Code.
The Shari'a District Courts shall have exclusive and original jurisdiction over the
following cases:
a) all cases involving custody, guardianship, legitimacy, paternity, and filiation
arising under the Muslim Code;
b) all cases involving disposition, distribution and settlement of the estate of the
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators regardless of the nature or the aggregate value of the
property;
c) petitions for the declaration of absence and death and for the cancellation or
correction of entries with Muslim Registries mentioned in Title VI, Book Two of the
Muslim Code;
d) all actions arising from customary contracts in which the parties are Muslims
if they have not specified which law shall govern their relations: all petitions for
mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary
writs and processes in aid of its appellate jurisdiction. ( Art. 143, The Muslim Code)
e) All petitions for mandamus, prohibition, injunction, certiorari, habeas
corpus, and all other auxiliary writs and process in aid of its appellate jurisdiction.
(Art. 143, The Muslim Code)
In Estrellita J. Tamano v. Hon. Rodolfo A. Ortiz, 291 SCRA 584, the Supreme Court
clarified the jurisdictional competence of Shari'a courts and affirming the Court of
Appeals that the second marriage by and between the late Sen. Mamintal Tamano and
Estrellita Tamano is bigamous because the first marriage with the first wife was
solemnized in accordance with the provisions of the Civil Code of the Philippines,
even if the marriage between Mamintal Tamano and Estrellita was celebrated in
accordance with the Muslim laws, hence, the RTC of Quezon City has jurisdiction
over the first wife's complaint for declaration of nullity of marriage, and not the
Shari'a courts. Xxx This is true because Art. 13, P.D. 1083 does not provide for a
situation where the parties were married both in civil and muslim rites, consequently,
the shari'a courts are not vested with original and exclusive jurisdiction when it
comes to marriages celebrated under both civil and Muslim laws.
The Shari'a District Courts exercise original and con.current, not original and
exclusive jurisdiction over the following cases:
1) petitions by Muslims for the constitution of family home;
2) petition for commitment of an insane person to an asylum;
3) all other personal and real actions not mentioned paragraph 1 (d) of Art. 143
of the Muslim Code, where the parties involved are Muslims, except those for forcible
entry and unlawful detainer (which are under the exclusive original jurisdiction of the
MTC's); and
4) all special civil actions for interpleader or declaratory relief where the parties
are Muslims or the property involved belongs exclusively to Muslims. (Art. 143,
Muslim Code)
Appeals from judgments and final orders of Sharia District Courts, are perfected
to the Shari'a Appellate Court in the following cases, to wit:
a) Exclusive and original jurisdiction over petitions for certiorari, mandamus,
habeas corpus, and other auxiliary writs and processes in aid of its appellate
jurisdiction. (Sec. 5, Art. IX, RA No. 6734) without prejudice to the exclusive power
of review by the Supreme Court under the Constitution, of all orders of the lower
courts through special writs; (Sec. 1, Art. IX, RA No. 6734)
b) Exclusive appellate jurisdiction over all cases tried in the Shari'a District
Courts. The decisions of the Shari'a Appellate Court shall be final and executory
without prejudice to the original and appellate jurisdiction of the Supreme Court
under the Constitution. (Sec. 6, Art IX, RA No. 6734) Likewise, decisions of the
Shari'a District Courts on appeal from the Shari'a Circuit Courts shall be final, with
out prejudice to the original and appellate jurisdiction of the Supreme Court as
provided in the Constitution. (Art. 145, Muslim Code)
Court of Tax Appeals
The Court of Tax Appeals which was created by RA No. 1125, is a court of special
appellate jurisdiction, composed of a Presiding Judge and two Associate Justices
whose qualifications are similar to those of the Judges of the former CIR, which
according to Commonwealth Act 103, shall be the same qualifications for members of
the Supreme Court It exercises exclusive appellate jurisdiction to review on appeal the
following:
a) Decisions of the Commissioner of Internal Revenue involving disputed
assessments, refunds of internal revenue taxes, fees, or other charges, and penalties
imposed in relation thereto; and other matters arising under the National Internal
Revenue Code or other laws administered by the Bureau of Internal Revenue:
b) Decisions of the Commissioner of Customs involving liability for the
customs duties, fees, or other money charges; seizures, detention or release of
property affected; fines, forfeitures, or other penalties in relation thereto; and other
matters arising under the Customs law or other laws or parts thereof administered by
the Bureau of Customs. (Sec. 7, RA 1125)
"It is not a court of general reviewing powers with respect to all matters within
the range of the customs and revenue laws and has no blanket authority to decide any
and all tax disputes. (Acting Collector of Customs v. Court of Tax Appeals, 102 Phil.
244) It has no jurisdiction over all criminal offenses. (Ollada v. Court of Tax Appeals,
99 Phil. 604). Its review authority over seizure cases is limited only to seizures on
account of liability for violation of customs laws, i.e. payment of customs duties, fees,
and other monetary charges. Hence, only the Regional Trial Courts can direct the
return of foreign currencies seized by the Bureau of Customs after the acquittal of the
owners thereof in the prosecution for the offense of smuggling. (Solicitor General v.
Commissioner of Customs, 142 Phil. 511) However, the Regional Trial Courts are
precluded from taking Cognizance of matters pertaining to the validity or regularity of
seizures and forfeiture proceedings conducted by the Bureau of Customs, and to
enjoin or otherwise interfere with such proceedings, even through petitions for
certiorari, prohibition, or mandamus, and cannot order the return of the goods seized
by the Bureau of Customs, because such matters should be threshed out in the Court
of Tax Appeals." (Commissioner of Customs v. Makasiar, G.R. No. 79307, Aug. 29,
1989, 177 SCRA 27; Hernandez v. Pineda, 182 SCRA 530; cited in Bersamin, Appeal
and Review in the Philippines, p. 52)