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"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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