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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

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