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R.A. 9262: Permanent Protection Order
Posted By: je froilan m. clerigo
12-Sep-2009


     Can a Court grant a PPO even if the applicant-victim is out of the country?      An opponent of ours thinks not. According to him, the PPO will be useless since it’s only enforceable within Philippine territory; in fac ...   Read More

Hearsay in Administrative Proceedings
Posted By: je froilan m. clerigo
17-Aug-2009


     Does substantial evidence mean that the hearing officer or tribunal can disregard basic rules of evidence, such as the inadmissibility of hearsay statements, considering that its own rules of procedure says that it is not bound by the t ...   Read More

What's "good cause" in discovery?
Posted By: je froilan m. clerigo
04-Jul-2009


We’ve requested for production of documents which are in the possession of the defendants. We don't think that there'll be any dispute that the documents are relevant to the case, since they were, in fact, mentioned in the defendants' answer, alth ...   Read More

"Fishing Expedition"
Posted By: je froilan m. clerigo
02-Jul-2009


        We received yesterday an opposition (to our motion for production of documents) which argues that our motion should be denied because it was “nothing but a fishing expedition”. It says that we were just fishing beca ...   Read More

Pop Quiz
Posted By: je froilan m. clerigo
01-Jul-2009


Question: You find yourself defending an essentially indefensible R.A 9262 case. What do you do? Answer: You attack the lawyer of the complainant! You file a case against her, preferably something criminal, like falsification. And who cares if it&rsqu ...   Read More

CJ Narvasa: ignorance of discovery
Posted By: je froilan m. clerigo
30-Jun-2009


     I got such favorable results from using the modes of discovery in a civil case (it got settled almost immediately) that I resolved to use them more in future cases.      However, one case later made me realize that, unlike the judge in that ea ...   Read More

Cross examining to authenticate
Posted By: je froilan m. clerigo
04-Jun-2008


We instinctively think of cross-examination as a tool to destroy the other side’s case. Rarely do we use it constructively, that is, to enhance our own case. Rarer still do we cross-examine to authenticate an otherwise problematic document, as we’ve done below:   In ...   Read More

Part 3: Actual transcript
Posted By: je froilan m. clerigo
03-Jun-2008


  (... continued) ATTY. OPENA TO THE WITNESS: Q:     And after your son was slumped, what did you do? A:     I went to my son and carried him to take him to the hospital. Q:     How many shots did you hear? A:  ...   Read More

Part 2: Actual transcript
Posted By: je froilan m. clerigo
02-Jun-2008


(... continued) ATTY. OPENA TO WITNESS: Q:    When you said end of sofa which portion, the left side or the right side? A:    The right.   Apparently, the positions of the witness and the victim, the locations of the sofa and the window are important. So, ...   Read More

Part 1: Actual transcript
Posted By: je froilan m. clerigo
30-May-2008


The following is a transcript of a direct examination in a criminal case for murder. We decided to comment on it (see the paragraphs in italics). See if you agree with our comments and suggestions on how to make it better. This was taken from People vs. Lee, G.R. No. 139070,  May 29, ...   Read More

Preparing witnesses 3: some reminders to the witness
Posted By: je froilan m. clerigo
29-May-2008


          Below is just seven of the things that we usually discuss with the witness immediately before he takes the stand:           1.  You are under oath to tell the truth, so just do that. I ...   Read More

Preparing the witness 2: discussing the testimony with the witness
Posted By: je froilan m. clerigo
28-May-2008


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

Preparing witnesses 1: testimony to be in most persuasive form
Posted By: je froilan m. clerigo
27-May-2008


     Witnesses must be prepared for direct examination. "Preparing witnesses" does not mean coaching him on his testimony. On the contrary, the witness should always be instructed to tell the truth; preparing means doing our duty as lawyers to present the witn ...   Read More

Preparing and presenting your case: Use emotions when appropriate
Posted By: je froilan m. clerigo
25-May-2008


  Emotion is a powerful persuasive tool. In fact, the ideal case is one where the judge not only is mandated to give what your client is asking for (because your case is solidly supported by the facts and law), but is also emotionally charged to do so (because he feels that what ...   Read More

Mistaken action
Posted By: je froilan m. clerigo
18-May-2008


I once inherited a case for an aunt of mine in the province. She and my uncle were sued for "annulment of a deed of sale" over the lot on which their conjugal home was built. When it was passed on to me, the case was already lost - in fact it was already for execution, my ...   Read More

Overcoming the "leading objection"
Posted By: je froilan m. clerigo
14-Apr-2008


 "Objection, leading!" This is perhaps the most oft-repeated objection of all during direct examination. While most lawyers (and judges) gauge if a question leads or not by the standard "if it is answerable by yes or no, then it is leading," the rule-book definitio ...   Read More

Effective proposals for stipulation of facts, Part 3
Posted By: je froilan m. clerigo
10-Apr-2008


More on making effective proposals for stipulation: 3. Limit the proposals to facts. This should be quite obvious because the proceedings is called "stipulation of facts" not "stipulation of arguments". Yet, it is not rare to still encounter a proposal such as this: ...   Read More

Effective proposals for stipulation of facts, Part 2
Posted By: je froilan m. clerigo
09-Apr-2008


  Here are some thoughts you may find useful in effectively preparing for and making proposals during preliminary or pre-trial conference: 1. Read the pleadings carefully: the complaint, answer, pre-trial brief, and everything else. This should be pretty obvious but, at one time ...   Read More

Effective proposals for stipulation of facts, Part 1
Posted By: je froilan m. clerigo
03-Apr-2008


  Why is "stipulation of facts" becoming a useless exercise during preliminary conferences? I went through a preliminary conference last week and virtually got no stipulation from the other side. In fact, when I lamented the lack of cooperation from the other lawyers, I ...   Read More

Good question!
Posted By: je froilan m. clerigo
02-Apr-2008


During cross-examination, we sometimes let go of a potentially fertile area of inquiry just because we are met with an objection and didn't know how to overcome it by re-phrasing our question properly. For instance, consider this question: "what did the accused mean when he said `I w ...   Read More

Your witness: how to make him more credible
Posted By: je froilan m. clerigo
01-Apr-2008


“If you cannot trust the messenger, why trust the message?” What this means for us trial lawyers is for us to give equal importance to both the story and the story-teller.  The credibility of the testimony must match the credibility of the witness.   How do we do ...   Read More

Frustration with stipulations
Posted By: je froilan m. clerigo
27-Mar-2008


  Yesterday, I sat in on one of the cases handled by an associate of ours in the office. The case was a civil case for damages against 3 defendants, and the setting was for preliminary conference. One of the items to be taken up during the conference is stipulation of facts. After t ...   Read More

Mindless objection
Posted By: je froilan m. clerigo
25-Mar-2008


When we do not think of the consequence of making an objection, that objection sometimes backfires. For instance, an objection that the document will speak for itself, or that the best evidence is the document, sometimes will achieve nothing but make life easier for the opponent. In fact, ...   Read More

Be brief and substantial
Posted By: je froilan m. clerigo
21-Feb-2008


We are prone to making a big fuss about something not so big, believing that if we compile a critical mass of them, we will be able  to dent the witness' testimony on direct. Better to focus your attention on 2 or 3 substantial points, rather than wasting it on several minor points ...   Read More

Being a client
Posted By: je froilan m. clerigo
01-Feb-2008


Aside from law practice, I also run a retail business. It may be an added load to an already busy law practice but, I have to say that it helps a lot, especially when you have businessmen as clients. It makes you understand the mindset of an entrepreneur, why he does the things he does, wh ...   Read More

More on Best Evidence
Posted By: je froilan m. clerigo
30-Jan-2008


 Sometimes we hear the objection "best evidence is the document" during cross-examination. Is this really proper? One time I was watching a lawyer who was cross-examining a witness, apparently focusing on the witness' affidavit that was submitted to the prosecutor during th ...   Read More

Be picturesque
Posted By: je froilan m. clerigo
25-Jan-2008


 Before language was invented, psychologists say that humans think in and relay thoughts by pictures. We simply remember better when we see pictures and not just hear words; in fact, going further, educators say that learning about something (such as remembering a testimony in court) ...   Read More

Does the judge know what you and your witness are talking about?
Posted By: je froilan m. clerigo
17-Jan-2008


  In one "episode" during the nationally televised impeachment trial of Erap, a senator-judge -- as far as I can recall, it was Sen. Raul Roco -- suggested that the examining counsel distribute copies of the documents he was referring to during the direct examination of ...   Read More

Pauses
Posted By: je froilan m. clerigo
10-Jan-2008


Another effective way to affect a witness on cross-examination is to pause, to just momentarily stop asking questions and just look the witness in the eye. Here's my experience: When a witness lies or exaggerates on the stand, it usually shows in his demeanour. These telltale signs ...   Read More

Invading personal space: a cross exam tip
Posted By: je froilan m. clerigo
04-Jan-2008


Wouldn't you want to affect the composure of a witness on cross-examination, not only by your question, but by your action as well? I don't mean shouting at the witness. What I mean is subtle ones - like standing close to him when asking a question. Try this. When the witness does ...   Read More

How do you end your direct?
Posted By: je froilan m. clerigo
03-Jan-2008


The direct examination is when we tell our story, fit those pieces to build our case, and persuade the judge to our side. Our job therefore, is to make the direct examination as impactful and memorable as possible, so that the judge remembers it come decision time. And one way to make o ...   Read More

What will be new with you in 2008?
Posted By: je froilan m. clerigo
02-Jan-2008


A friend of mine made an interesting remark the other day. He said that he read somewhere - I recall he mentioned a book by Deepak Chopra, a physician trained in western medicine but now practising the ancient system of health care called "Ayurveda" which is nati ...   Read More

"Best Evidence is the Document"
Posted By: je froilan m. clerigo
30-Dec-2007


I don't really understand what the objection "best evidence is the document" means. I usually hear it during direct examination when the witness is asked to quote parts of a document she has identified, or is asked what certain statements in the document means. And what's more, ...   Read More

Avoid disaster: review the information before going to trial
Posted By: je froilan m. clerigo
20-Dec-2007


Have you checked the information in your case lately? Information as in indictment, that is. That should seem routine. But a case we defended - purporting to be a violation of the Trust Receipts Law - was dismissed on demurrer because the prosecution did not see the need to prove crimi ...   Read More

Direct on re-direct
Posted By: je froilan m. clerigo
17-Dec-2007


The other lawyer's just finished his cross exam of your witness. You don't think there's any need for re-direct questions. Going over your notes, however, you realize that there are questions you forgot to ask in your direct examination earlier. Or, you're already mid-way in your re-dire ...   Read More

Going around objections
Posted By: je froilan m. clerigo
14-Dec-2007


        A question on cross examination that may appear objectionable for being irrelevant may still be allowed if you know how to argue based on a different ground. In other words, choose your battles; don't get trapped in your opponent's objection a ...   Read More

So, you won: can you enforce it? Some tips
Posted By: je froilan m. clerigo
13-Dec-2007


You won a collection suit. There was no appeal, yet the losing party does not pay. The court grants your motion for a writ of execution. There is just one problem: when you asked the client to locate properties of his debtor so you can sell them at auction to pay the debt, he was unable ...   Read More

A tip in preparing your case
Posted By: je froilan m. clerigo
11-Dec-2007


"Begin with the end in mind", as Stephen Covey mentioned in his 7 Habits of Highly Effective People, is how to prepare a case. Picture how the case will end by writing the draft decision at the beginning, right after the evidence is gathered and the facts collated, ...   Read More

Litigation budget
Posted By: je froilan m. clerigo
10-Dec-2007


You're in an initial meeting with your lawyer. He interviews you about the case that you're thinking of filing. After a while, you ask him, "how much will it cost?" He hedges then tells you, "you know, it's difficult to say, what with the postponements, the ...   Read More

Litigation tech
Posted By: je froilan m. clerigo
08-Dec-2007


Technology has certainly invaded the law office: keep up or get behind. Going paperless is becoming vogue, not only because of the efficiency but more because of the effectiveness it offers. Truly, technology is a great equalizer, giving small or solo law offices the confidence to accept a ...   Read More

7 tips on practising questioning skills
Posted By: je froilan m. clerigo
04-Dec-2007


1. Forget that you are a lawyer. Testimony, to be clear and memorable to the judge must use plain and simple language. Lawyer talk serves no purpose but to confuse; 2. Read up on light novels, magazines or newspapers and take note of the words they use. Reading the instructions on applian ...   Read More

Plain and simple
Posted By: je froilan m. clerigo
03-Dec-2007


I've heard once that the capacity of the human mind to complicate things knows no bounds. More so that of lawyers. How many times have we heard a witness asked "when was the contract of lease executed between you and the defendant?" (Who was executed by what is just what the witn ...   Read More

Pinning down a witness
Posted By: je froilan m. clerigo
02-Dec-2007


In many criminal cases, the star witnesses are not always the complainant or the defendant. These are strangers to the parties but, by accident or otherwise, are there at the scene when the crime happened. Through time, however, these witnesses either forget the facts, become  indi ...   Read More

10 things to avoid when you're a trial lawyer part 2
Posted By: je froilan m. clerigo
28-Nov-2007


  Here's the rest of the don'ts when you're a trial lawyer: 6. Improper manifestations. Lawyers ask questions; witnesses answers. That's the rule. Many young lawyers, however, seem to have this the other way around. Once I am on cross-examination. I show the witness a document, ...   Read More

10 things to avoid when you're a trial lawyer part 1
Posted By: je froilan m. clerigo
27-Nov-2007


  1. Writtten out questions and answers for the direct examination. The lawyer has the script with him to refer to while examining the witness. What about the witness? Does he really expect the witness to memorize the script? Or even more basic, does he really expect that the exa ...   Read More

Leading questions erode credibility
Posted By: je froilan m. clerigo
26-Nov-2007


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

Watch out for the cross exam
Posted By: je froilan m. clerigo
25-Nov-2007


  Most of the witnesses for your case, and their stories, are not rosy and pink. In fact, most of the times, they know of some facts that may hurt your case. When preparing your witness, anticipate the cross-examination that's sure to come. We've had a witness who testified eff ...   Read More

Rein in your gratuitous witness
Posted By: je froilan m. clerigo
22-Nov-2007


      Appearing in court and giving testimony is serious business. Every word uttered is recorded; sometimes, even the gestures of the witness find their way into the records. This is why we spend time, sometimes inordinate amount of it, conferring with, preparing and eve ...   Read More

Unconsciously unaware of evidence
Posted By: je froilan m. clerigo
21-Nov-2007


  Do you know how to ride a bike? If you do, do you think about it? You should not. You are, as they say in psychology, unconsciously unaware of your skill. But we did not start out that way. Most probably, we fell right after our first mount. Then, after more practice, we learn ...   Read More

Taking of deposition vs. Use of deposition
Posted By: je froilan m. clerigo
20-Nov-2007


      Is the use of a deposition a matter of right? After the answer to the complaint is served, yes it seems to be so, because, if we read Rule 23, deposition can be taken even without leave of court. Cases decided by the Supreme Court seem to say that, because there is ...   Read More

Chain of custody issue
Posted By: je froilan m. clerigo
15-Nov-2007


      2 days ago, I was in court waiting for my case to be called. Another case, a criminal one, was called before mine and was being tried. The witness was the apprehending officer. The public prosecutor was doing the direct examination. During the direct, the witness i ...   Read More

Tips on how to lessen arbitration costs
Posted By: je froilan m. clerigo
14-Nov-2007


  When considering the following tips on how to lessen your CIAC arbitration costs and filing fees, bear in mind that these costs are assessed by the CIAC generally on the basis of the amount of the claims of the parties. This means the question of how large or minimal these fees ...   Read More

Discovery tools: why not use them?
Posted By: je froilan m. clerigo
13-Nov-2007


A judge in Pasig City commended a lawyer in our firm for serving written interrogatories on the defendants as soon as the answer to our complaint was filed. He said that he would like to see more lawyers using this tool (and the other modes of discovery) in preparing for cases. On the o ...   Read More

Who should take the stand first? Part 1
Posted By: je froilan m. clerigo
13-Nov-2007


When a judge sits to hear a case, she really has no idea at all what it is all about. It is only when the case goes on trial that she starts to form an opinion about it as she sifts through the evidence pouring in. And, since these pieces of evidence are either testified to or produced, ...   Read More

Who should take the stand first? Part 2
Posted By: je froilan m. clerigo
13-Nov-2007


In presenting witnesses, there are those who say that witnesses should be presented so that they tell the story in a chronological way: the first witness testifies on what happened first, the second on what happened next, and so on. There are also those who say that witnesses should be ...   Read More

Who should take the stand first? Part 3
Posted By: je froilan m. clerigo
13-Nov-2007


Protecting, or otherwise enhancing or emphasizing, the credibility of the most important witness of your case should be a main concern. Presenting him last on the stand may be the most logical order. The witnesses preceding him must either corroborate what he will testify to later, or must ...   Read More

Ask the client for help
Posted By: je froilan m. clerigo
12-Nov-2007


"We are in this together." That's what we tell our clients regarding their cases. Client's frustration comes from unmet expectations. When it is made clear to them that lawyers, while paid for doing the legal work, does not and cannot be expected to know as much as the client kno ...   Read More

Organizing the cross part 3
Posted By: je froilan m. clerigo
11-Nov-2007


How do you organize the order of the examination? The first and the last questions are the ones best remembered and have the most impact, according to the principle of primacy and recency. So save your two best points - either the ones that you know will do the most damage to the oppone ...   Read More

Organizing the cross, part 2
Posted By: je froilan m. clerigo
10-Nov-2007


While it may be tempting to cover all that the witness said during the direct examination, brevity is still the best policy. After setting down your objectives, concentrate on 3 most important points which will bring you closer to these objectives. These points must be the ones that you kn ...   Read More

Organizing the cross, Part 1
Posted By: je froilan m. clerigo
08-Nov-2007


As in all endeavors, planning is essential in cross-examination; if we fail to plan, we plan to fail. How do we plan? First, set the objectives. Start at the end. Imagine the memorandum you will write at the end of the case. What will you be writing about the testimony of this witness w ...   Read More

E-filing in CIAC?
Posted By: je froilan m. clerigo
08-Nov-2007


2 days ago in an arbitration case we handled, after both parties were through with their direct and cross-exams of the witnesses, the CIAC (that's Construction Industry Arbitration Commission) sole arbitrator instructed the parties to file their draft decisions; we were pleasantly surpri ...   Read More

Lead to control
Posted By: je froilan m. clerigo
07-Nov-2007


Control of witness during cross-examination is so important that the most basic advice is to not lose it. Control is maintained when only close and leading questions (or most of them at least) are asked so that the witness is limited to answering only either yes or no. How to lead? Begi ...   Read More

Do you fear the witness?
Posted By: je froilan m. clerigo
07-Nov-2007


There’s neither a need to browbeat a witness nor to twist his arm during cross-examination. In fact, a familiar analogy is Aesop’s story about the sun and wind arguing who's stronger between them. We all know how that story ends. When we cross-examine, we forget that when we ...   Read More

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