How to Prepare a Case

How to Prepare a Case

PAGE 18HOW TO PREPARE A CASE FOR LITIGATION

By: Fernando P. Cabato

HOW TO PREPARE A CASE FOR LITIGATION

(For the use of Fourth Year Law Students in Practice Court II)

By: Fernando P. CabatoRetired Judge RTC Baguio-Benguet

Guest Lecturer, College of Law

Saint Louis University

PART I

Outline l

1. Preliminary Considerations

A..You are so near and not so far from the becoming a lawyer an advocate of the law.

You are at the threshold of a new beginning. Very soon you will be awarded your diploma for having successfully accomplished all the academic requirements for a college degree, Bachelor of Laws. This will be followed by a grueling review for the bar examinations, your passport, so to speak, to making your membership to the Philippine Bar, after having been admitted to practice law by the Supreme Court and having signed the Roll of Attorneys. But before all this, there are still sleepless nights to contend with, more studying to do, the stress and pressure remain haunting you.

Aside from your other subjects, you have to go through this subject Practice Court II to have a first feel and initial experience of litigation work.

B. An introduction to the art of advocacy

In this subject, Practice Court II, you will be exposed to the basic rudiments of how to prepare and try a case. Thus, you go through the preparation of initiatory pleadings, important motions, preparation of pre-trial briefs, go through the procedure of pre-trial conference, trial work which will entail determination of the theory of the case, preparation of a fact chart, trial plan, conducting direct examination, conducting cross-examination, etc. This subject should not be taken for granted nor be ignored because in a way it is part of your review of certain aspects of substantive law and remedial law. I am aware you have many concerns to attend to and deal with. But at the end of the day, when you shall begin your real trial work, you will realize the importance of going through this subject. In the meanwhile, patience, perseverance and preparation are the key words to achieve your dream to be a Louis Nizer in a courtroom drama.

C. A birds eye view of trial work.

It has been said that trial work is an art. More than mere graduation from a law school is needed to acquire it. No lawyer should undertake legal work for which he is not thoroughly equipped. The practice of law is too important, too sacred, to be approached in a hit and miss fashion. Almost every case is of vital concern to someone. Decisions may be far reaching. The consequences of mistake are often fatal.

A trial attorney worth his salt is motivated by these indispensable factors, namely, he should be industrious and studious; he should and with a deep sense of responsibility; he must always adhere to the rule of law, he must think, act and behave in accordance with the Code of Professional Responsibility, in his professional as well as private life. Above all, he must be an authentic Christian. Remember, all those who preceded you and passed under the portals of the College of law, SLU you were trained within this framework of discipline. You are no exception.

D. Trial work or litigation entails the following:

I. First stage of trial work begins when you initially interview a client.

1. Early on, once you decide to represent a client, discuss about professional fees.

Draw up a retainers contract to include acceptance fee, appearance fee, retainers fee, expenses of litigation such as hiring a private investigator, securing documents from different offices, etc., coverage of the legal work or services which could only cover up to termination of trial and rendition of judgment, no assurance clause, no short-cuts clause, in case of appeal another contract may be entered into. Be reasonable and fair in fixing our fees. Your responsibility to your client is made clear as well as the obligation of your client is drawn. Your legal work begins

2. Gathering and mastery of facts: Thorough interview of client and witnesses

-Taking the names and addresses of client and witnesses, and a thorough interview must be conducted.

-Take notes during the initial interview. Let the client do the talking.

-Inquire if he/she has given to you all the facts favorable and unfavorable.

-Inquire if he/she may have forgotten any fact.

-Take note of dates, events; examine documents, object evidence, real evidence, pictures, and other relevant evidence.

-Look for inconsistencies and discrepancies.

- Clarify matters and you review and go over the facts as gathered.

-After interview of client, each witness shall undergo same procedure of interview as above. (See below)

-Preserve the story of the client and witnesses by putting into writing the result of your interview with them. (See below)

3. After having gathered all the facts, there may be a need to make an ocular inspection of the place involved and take notes and pictures, and measurements when necessary and helpful in completing the facts.

4. Go all over again the facts gathered and try to have a mastery of the facts. Then give your honest and candid appraisal of what you think where your client stands should a case be brought to court. Apprise your client of alternative solutions or options such as out-of-court settlement, mediation, and arbitration, compromise if the matter is civil in nature. If it involves a criminal case and your client is the accused, lay the consequences before him, the option to plead guilty to a lesser offense, settle the civil aspect of the case, alternative solutions or options such as probation, suspension of sentence, bargaining for a lesser offense, proving mitigating circumstances, possible exempting and justifying circumstances.

5. Go all over again the writings, documents, and other material and relevant object or real evidence; conduct anew an ocular inspection of the place where the transaction/ happening/crime took place. Preparation of a sketch or diagram of the place; preferably your own sketch of the scene/ place/ all the things that you observed when you conducted an ocular inspection.

2. Preparation of the client and witness

a. On the matters he/she will testify of his/her own knowledge on the subject legal controversy

b. On the documents he/she will testify on. He/she should read the document(s)or writing(s) and be familiar with it.

c. Never teach a witness what to testify

d. Encourage witness to testify on the facts he/she actually perceived/witnessed/saw.

e. Instruct witness to answer only the question asked, directly, straightforward, briefly and clearly. Advise him/her not to volunteer any information other than what is asked for.

f. Instruct witness never to testify on anything he/she does not know/ has no knowledge of/ have not seen. Tell him/her to be candid and simply tell trial court, I do not know that, your Honor or I have no personal knowledge of that fact, your Honor or I am not aware of that or I will not witness/hear/see that, your Honor.

g. Instruct witness not to guess, to speculate, to make a conjecture, to argue with the counsel or be cocky; encourage him to be truthful and honest; to admit when he committed a mistake or answered has incorrectly; to be polite in giving his answers by looking straight into the eye of the examiner and once-in-a-while glance or look at the trial judge.

h. In preparing a witness, shoot questions and let him answer each question in his own way so that you can assess whether his answer is responsive, direct, clear, and straightforward. After asking him proving questions, cross-examine him/her on the facts he/she narrated and to the details of what she/he narrated.

i. Instruct your client or witness to be in the courtroom 10 minutes before trial begins; to come to court using casual wear but neat and clean; not to use shades while testifying. If possible, your client and your witnesses should attend one or two trials of a case to give them the feel and confidence of taking the witness stand.

3. Study and preserve evidence

Documentary

Testimonial

Object evidence

Sketches, photographs, notes, writings

Other relevant and material evidence

Preserve your evidence

Utilize discovery procedures

a. Taking of testimony of witness before trial by deposition or written interrogatories

b. Inspection and photocopying of documents, etc. in the possession of the adverse party which are material and relevant before or after they were marked as exhibits during the pre-trial conference.

c. Perpetuation of testimony

d. Taking of testimony of witness before trial begins.

B. Study of the law/jurisprudence involved and applicable

1. Pertinent provisions of the law, rule, regulation/administrative orders or circulars

2. On jurisprudence, pro and contra

3. The provisions of the Rules of Court, which may come into play during the pre-trial conference, and the Rules on Evidence.

Note: All the foregoing should be recorded in a systematic manner in a trial manual or what I have always referred to during my practice as Trial Plan.

Note: You should have a provisional or hypothetical theory to start with.

End of Outline 1

(FPC l)






Part I

Outline 2

C. Preparing the Initiatory Pleading/Responsive pleading

Drafting of the pleading, crafting of the cause of action or defense, formulation of a provisional or hypothetical theory and then decide the theory of the case and/or alternate theory of the case.

1. Making the outline of initiatory pleading, checklist of format for Complaint or Answer, or Petition, or Opposition.

2. Formulating or crafting the cause of action(s)/ cause of the accusation/ defense hand-in-hand with the theory of the case.

3. Considering the inclusion of provisional remedy such as attachment, preliminary injunction, temporary restraining order, etc.

3. Possibility of compromise or settlement of the case out of court/ settle civil aspect of the case in criminal action/ plea to a lesser offense which is necessarily included in the offense charged/ adjustment of claims/ other relevant course of action to terminate the controversy to a fair, reasonable compromise, mediation, and arbitration to abbreviate a long-drawn trial.

Note: Outline l and Outline 2 involve preparations before the formal filing of an initiatory pleading, or filing of a responsive pleading in civil actions, special proceedings, special civil actions as well as in criminal actions. This is the first stage of trial work.

Note: Every pleading, motion, manifestation, or other judicial processes or papers which you intend to file in court must have been carefully prepared, drafted and reviewed, impeccable in form and substance, free from any grammatical error. It must bear the earmarks of clarity, conciseness and completeness. Whenever you cite jurisprudence, your citation must be correct and checked including the page where the principle you cited is enunciated. Never misquote a jurisprudential citation or the law. Remember, your pleading, your motion, your written manifestation, any paper that you file in court becomes part of the record of the case, and is the mirror of your soul. It has been said that its cover should never judge a book.

II. The second stage of trial work

1. After the filing of the initiatory pleading, or Answer, or Petition, or Opposition, in civil action or at the arraignment of the accused in criminal action.

2. Filing of reply/third party complaint/ answer to counterclaim/ cross claim/ motions/ taking of deposition/ written or oral interrogatories/motion for production of documents/ petition for perpetuation of testimony/ subpoena duces tecum; subpoena testificandum, and related processes prior to the Order requiring the parties to submit the pre-trial briefs and the setting of the date of pre-trial conference.

3. Preparation of pre-trial brief

Desirability to undergo the process of arbitration, mediation or other modes of alternative settlement of disputes. Today, mediation or arbitration is compulsory.

Facts for stipulation/admission

Definition of issues factual and/or legal

Marking of exhibits and brief description of documentary exhibits

Names and addresses of witnesses, brief statement of the testimony of each witness

Number of trial dates/ estimate of hours in the presentation of testimonial evidence for each witness

Pre-trial agreement

Issuance of subpoena

Filing of the Pre-trial brief

Other matters to abbreviate the proceedings or shorten the period of trial.

Either party may file relevant motions after the pre-trial order shall have been issued.

Note 1. A.M. No. 03-1-09 SC on Pre Trial and Discovery Procedures; On criminal action where minors are involve see RA 9344 known as the Comprehensive Juvenile Justice System

Note 2. Prepare a well-crafted pre-trial brief. The trial court in conducting the pre-trial conference will extensively use it, and upon which its pre-trial order shall be formulated. The pre-trial order will guide the parties in the hearing and trial of the remaining matters to be litigated.

Note: All the foregoing should also be included and made part of your trial plan.

End to the second stage of trial work.

III. Trial proper, third stage of trial work

Things to do before trial proper

Review

The pleadings (theory of the case)

Facts/ sketches/ documents/object evidence

The law / substantive and procedural

The law on Evidence

Applicable jurisprudence

List of the admitted facts

Prepare Fact Chart

The questions to be asked to establish or prove a fact at issue - material to establish and support the theory of the case

Short, direct, clear questions one question one answer at a time

Prepare your witness for direct examination (rehearsal so to speak but never, never teach or coach your witness what to testify). Allow him to tell his story freely and truthfully through the direct examination.

Prepare outline of cross-examination

Prepare a list of probable objections, which may be handy during presentation of testimonial evidence

Things to do during trial proper

Take notes during presentation of evidence

Be alert

Be focused

Offer of testimony and purpose/s for which it is offered

Stand when its time to object to a question and state the ground for objection

Be respectful, be courteous, and be polite

Use dignified language

Be calm, be composed never lose your cool.

After each hearing - review what transpired during the hearing

Take note of any error committed/ what you should have done/ what you should not have done/ what to prepare next hearing/ make adjustments

Need to present rebuttal evidence/ sur-rebuttal evidence

Prepare formal offer of documentary and/or object evidence/ purpose/s for which is offered

Note: After each hearing, record and review what took place, matters forgotten, mistakes committed, things to do or prepare, secure transcript of the stenographic notes taken during the trial and review.

Things to do after case is submitted for resolution

Need to reopen the case

Preparation of position paper/memorandum

Judgment

Motion for reconsideration

Motion for opening case for additional evidence/ to avoid injustice

Appeal

Critic - Why did I lose? Why did I win? What should be been done to avoid having committed some errors? Could I have done better? What lessons did I learn from this litigation? I what area did I perform well? In what area did I not perform well? How do I rate my performance in handling this case?

Apprise your client candidly/ discuss the chances of appeal/ settlement of fees

Note: All this should form part of your trial plan.

(With the use of present computing facilities, you can store all this for future reference)

Fundamental considerations as a trial advocate

Your beacon light must always be the Code of Professional Responsibility.

Uphold the rule of law and dignity of the law profession

Remember that you are a Louisian - you are taught and trained to be a gentle person, and an able, competent, a Christian lawyer

End of Outline 2 and Part I

(FPC 2)






PART 1

Outline III

I. Appearance

When your case is called: Plaintiff or Petitioner

I appear for the plaintiff (for the Peitioner or for the People or State or Government) your Honor or For the plaintiff ( for the Petitioner, or for the People, State or Government), your Honor

or For the plaintiff (for the Petitioner or for the People or State or Government) your Honor, in colloboration with Attorney ______ the principal counselor I appear for the Plaintiff (for Petitioner) in todays hearing, your Honor. Attorney-------------the principal counsel is indisposed or he is in mourning, his -------- passed away --------. ( If the trial court asks the whereabouts of the principal counsel, be candid and truthful in your replyexcept when it is too personal, then give a believable excuse)

Note: For purposes of our class, please state your name.

When your case is called: Defendant or Oppositor or Defense, after the plaintiff, or petitioner, the public prosecutor has entered his/her appearance.

For the defendant (oppositor, or defense) your Honor. Or For the defendant (oppositor or defense) or For the defendant (oppositor or defense), your Honor, in colloration with Attorney----------------------- the principal counsel or I appear for the defendant (oppositor or defense) for todays hearing, your Honor. Attorny----------the principal counse is could not come today. (If the trial court asks the whereabouts of the principal counsel, be candid and truthful in your reply except when it is too personal, then give a believable excuse)

Note: For purposes of our class, please state your name.

Note: The foregoing mode of entering or making your appearance applies in pre-conference and in trial proper. Be in the proper attire neat, clean, groomed, shined shoes.

Note: Always be on time and be prompt in attending court work and appointments; attend to your professional, social, civic and religious commitments.

Note: There is no question that you are entitled to be compensated for a legal work done but it must always be reasonable, fair and conmensurate to legal services rendered. Remember, the law profession is to render service, first and foremost. Never squeeze blood from a tulip.

II.Order of trial

Go over the Rules on Order of Trial

A.Civil Case

Rule 30, Revised Rules of Civil Procedure

B.Criminal Case

Rule 119, Revised Rules of Criminal Procedure

III. Marking of Exhibits

Plaintiff (civil and Criminal; petition/special civil action/special proceeding) - Alphabet, A, B, C, etc.

Sub-marking A-l, A-2, etc. B-l, B-2, etc. C-1, C-2 etc.

Defendant(civil and Criminal/ oppositor/ respondent) Number, 1, 2, 3, 4, etc.

Sub-marking 1-a, 1-b, etc., 1-a. 2-b, 2-c. etc. 3-a. 3-b, 3-c, etc.

IV. Trial proper

(a) Some pointers in handling direct examination

1. The direct examination of a witness means the examination-in-chief of a witness. A witness is called to the witness stand to testify on facts known to him personally that is, on matter(s), which are the subject of inquiry. His testimony must be relevant and material to the fact(s) sought to be established through his testimony.

2. The direct examination should build up the theory of the case. Hence, collateral, extraneous, or immaterial questions should be avoided.

3. How the testimony is arranged, in what order shall the witnesses be presented require skill, care and attention. I will call this a preparation as to the order of proof.

A trial attorney should not enter into trial of a cause without a definite order of proof. What to prove, which evidence to prove it, and how much evidence will prove it all these should be determined before he goes to trial.

4. Start with a strong witness and end up with a strong witness. Thus, plan before hand the sequence of the witnesses such that the theory of the case or the story of the client is systematically constructed or built like a house- chronologically and in an orderly manner. Your aim is to present as clearly as possible the cause of your client likened to a painter using different hues and shades to portray a magnificent scene.

5. Except on preliminary matters, leading questions should be avoided. A leading question is one that suggests to the witness the answer, which the examining counsel wants, or, as its name indicates, one that leads the witness up to the desired answers. Short and clear questions are ideal in conducting direct examination.

For example: When did this take place? (You are asking for time, date, and year)

Who were present at the time you mentioned? (You are asking the persons who were there at the time, date and year)

Where is this place located or situated? (You are asking the definite place)

Why were you there at such a place and time you have mentioned?

(You are asking the reason for you being present at the said date, time and place)

What was it that you saw at said time and place? (You are asking the surrounding circumstances of the event that you have seen or observed)

How far or near were you at the scene that you witnessed? (You are asking how reliable your observation was and how you used your sense of sight and sense of hearing.)

Note: Three important facts must be established: (1) persons the parties involved and witnesses present, if any; (2) date, time, place, when the incident or event took place; (3) the facts and circumstances surrounding the incident or event which you saw, observed, heard, and perceived with your senses. As a good rule, premise your question with Who, When, Where, What, Why, How.

Note: A trial lawyer should learn to formulate questions that are short but perfectly proper in form, without a hint or suggestion, such that after the witness shall have finished his direct examination, the story is build or constructed or painted or portrayed his answers so vivid, moving, and factual.

Examples: (Criminal case)

Setting up (1) the fact what the eye witness saw; (1) the fact that accused stabbed the victim (3) the fact that a bladed weapon was used by the accused in inflicting injuries to the victim; (4) the fact that others witnessed the incident.

a) Where did you meet the accused?

b) When did the stabbing happen?

c) What was the time when the stabbing took place?

d) Where was the victim at the time before he was stabbed?

e) Who stabbed Pedro?

f) How did the accused stab Pedro?

g) Why do you say that Juan was stabbed on his right chest?

h) Where were you when Juan whipped his bladed weapon?

i) Who were present then at the time if there were any?

j) How many times did Juan stab Pedro?

k) Etc/

(Civil Case)

Proving the negotiations took place; that a contract was arrived at; that the terms and conditions subject of the negotations were reduced to writing; that the parties have agreed on the terms and conditions and stipulations of their contract, and was reduced into writing by the notary public; that the parties read and understood the contract prepared by the notary public containing the terms and conditions and stipuations which were agreed to by them.

a) When did the plaintiff------and defendant -------met

b) Where did they meet?

c) Who were present when they met?

d) What did they do at that place?

e) What time was it when they started to negotiate?

f) Who were present at the time they were negotiating

g) What were they negotiating about?

h) How long did this negotiation take place?

i) After, they have ended their negotiation, what took place?

j) Who prepared the document?

k) After the document was prepared, what did plaintiff and defendant do?

l) Etc.

8. It is unpardonable and presumptuous for a trial lawyer not to prepare for the direct examination.

No trial lawyer can be successful in the highest sense of the term unless he is a master of the difficult art of direct examination. It requires a great combination of qualities, foremost is patience, coolness, courage and tact. Many cases are won by direct proof than all other phases of the trial combined.

The art of direct examination is the technique of having a witness tell a story in an interesting, natural and effective manner. Surely, a witness called to testify has a story to tell. But the witness cannot just tell his story the way he dishes it out to his friends with all the embellishments and elaborations. A witness can only tell his story in an effective, natural and interesting manner by his answer to each question asked of him by the examining counsel. The art of propounding the direct examination questions comes into play. The KEY IS THE PREPARATION OF A FACT CHART.

A trial attorney should prepare question by question an outline of the examination which is to be made of each of his witnsesses. Such a preparation will lead to three results, namely, (1) it will make certain that every important fact and issue in the case has a ready proof; (2) it will give the attorney experience in the framing of questions so as to avoid confusing objections as to form which mightbe made to them, if such questions are left to be formulated in the excitement of the trial; (3) it will also enable the attorney to discover certain links missing in his chain of proofs, which he may not be able to supply if he discvoers fthem only during the trial.

The facts of the case, must be arranged in such a fashion that the proofs present an orderly and mass development toward that strong point on which it is hoped the case can be made to turn.

9. A witness should be candid to admit an error or mistake in his answer and ask that he be allowed to correct his mistake or error. There is nothing wrong with this because the witness will surely be perceived as a credible witness, one who has not been coached or taught.

First impressions are of major consequence. The selection of the first item of proof whether testimonial or documentary is, therefore, a decision of importance. The first item in the outline of proof should be one of substantial significance and through which the general outline of the whole case can be developed and by which the story sought to be presented can be started with a bang. Properly done, this will give the trial court a general idea of the merits of the trial advocates cause and will enable it to follow more readily the subsequent matters of evidence.

10. A witness should answer the question asked him/her directly, clearly, concisely.

(b) Matters on which a witness may be cross-examined.

1. A cross examiner is allowed to ask leading questions; he is not allowed to ask misleading questions.

2. A cross-examiner should never badger a witness or argue with the witness;

3. A cross-examiner must have a purpose in asking cross-questions which could be one or some of the following purposes or objectives.

a) To test the knowledge of the witness;

b) To test the competency of the witness to testify

c) To test the truth of the direct testimony

d) To explain or enlarge the testimony brought out in the direct examination

e) To show the motive, interest, or animosity of a witness

f) To ascertain the opportunity the witness had to gather the facts he testifies to

g) To weaken his testimony given in direct examination

h) To test the source of his knowledge and determine if it is competent and not hearsay.

i) To test the materiality of the testimony.

Take Note: NEVER CROSS-EXAMINE A WITNESS WHEN (1) his testimony did not affect in any way your theory of the case; or (2) when you have no purpose or object to pursue in conducting cross-examination or (3) Dont conduct cross-examination if you are not prepared.

Thus, dont be aimless; never lose your cool or temper; dont cross examine too long; dont overdo your cross examination; dont show it if the answer to the question is hurtful; avoid long, double, multiple or confused questions; limit your questions; demand responsive answers; avoid unpleasant voice or manner.

For example: a witness was cross-examined. He has stated on direct examination that he secured certain information about the case by representing himself to be a policeman, when in fact he was not a policeman. After bring out everything else that you thought helpful in his cross-examination, you concluded in this way:

x x x

Q. When you first sought information from Miss. Juan, you told him you were a policeman, did you not

A. Yes.

Q. Were you a policeman?

A. No.

Q. Have you ever been a policeman?

A. No.

Q. At the time you told Mr Juan that your name was Pastor Valdez?

A. Yes.

A. In fact, your name is and always has been Romeo Bramman?

B. Yes.

Attorney: Salamat:

That would be all, your Honor.

x x x

This concluding part of your cross-examination will leave a strong impression on the mind of the trial court.

Another example: In a case of murder, the prosecution proved its case except for the identification of the murdered victim. The body has been burned, though it had done limited damage to the body, had disfigured the fact beyond recognition. The father of the victim testified on direct examination, and part of his testimony was:

x x x

Q. You have seen the burned body?

A. I have.

Q. Have you examined it?

A. I have

Q. Can you identify it?

A. I can.

Q. Will you state whose body was it?

A. It was the body of my daugther, Milagros.

x x x

Attorney Salamat on cross-examination:

x x x

Q. Are you sure that it was your daughter Milagros?

A. I am.

Q. How do you know the body is that of your daughter, Milagros>

A. By the color of her hair, the size of her feet and ankles, her hands, and her size.

x x x

With the answers to the questions on cross-examination, there would be no doubt that the identification fit any other woman. The identification practically was worthless.

Take Note: A trial lawyer should have a checklist to help him prepare his cross-examination. The following are important for a cross-examiner

a) know the facts (mastery of the facts)

b) Determine the governing principle(s) of law and procedure involved

c) Consider the experience and tactics or strategy of your opponent

d) Anticipate the nature or type of witnesses involved

e) Consider the judge

f) Develop a thorough knowledge of the law on evidence and jurisprudence

g) Review, study all documents marked in evidence during the pre-trial/examine and study the object evidence marked in evidence during the pre-trial

Note: At the end of each trial day, indicate in your trial plan (a) what actually took place during the trial (b) the gist of the testimony of witness who testified; whether his direct examination was finished or not; the matters covered by the cross-examination, finished or not; documents introduced in evidence; (c) matters that should have been taken; (d) things to do for the next hearing (d) secure transcript of the stengraphic notes and review it thoroughly for mistakes committed or not correctly transcribed. (e) other matters relevant and material.

Note: A good book to read is The Art of Cross-examination by Francis Wellman

End of Part II

(FPC 3)

PAGE 18

Documents

How to Prepare a Case