Sunday, June 23, 2013

Judicial Affidavit in place of Direct Testimonies

The bottleneck in our Judicial System in hearing and deciding cases is at the witness stand. This is so because courts can hear no more than one witness at a given time. To partly solve this problem, the 2012 Judicial Affidavit Rule directs the parties to use judicial affidavits of witnesses in place of their direct testimonies. This change has cut down the time needed for hearing cases by two-thirds, since the examination of witnesses normally consists of two-thirds direct and one-third cross. Some think that the use of judicial affidavit impairs the court's opportunity to observe the demeanor of witness while he testifies on direct examination. But true demeanor usually will not show when the witness responds to closely controlled questions from a friendly lawyer who interviewed him before trial. It is during cross examination, when the witness has to answer questions that he has not prepared for, that his true demeanor will show.

Wednesday, June 12, 2013

Misconduct of lawyers in government service

Generally speaking, a lawyer who holds a government office may not be disciplined as a member of the Bar for his misconduct in the discharge of his duties as government official. However, if said misconduct as a government official also constitutes a violation of his oath as a lawyer, then he may be disciplined by the Court as a member of the Bar. A member of the Bar who assumes public office does not shed his professional obligations. The Code of Professional Responsibility was not meant to govern the conduct of private practitioners alone, but all lawyers including those in government service. Lawyers in government are public servants who owe utmost fidelity to the public service. Otherwise said, a lawyer in government service is a keeper of the public faith and is burdened with high degree of social responsibility, perhaps higher than her brethren in private practice (A.C. No. 5119. April 17, 2013).

Wednesday, June 5, 2013

Proposed Rules on Civil Procedure

The proposed rules provide that, after the issues have been joined by the parties' pleadings, the court shall refer the case to court-annexed mediation in places where the service is available. The plaintiff is required to pay only 50% of the filing fees based on the possibility that the case would be settled and not have to go to trial. Experience shows that court-trained mediators have high success rates. Only when mediation fails and the case is returned to the court for further proceedings will the plaintiff pay the balance of the filing fees.

Tuesday, June 4, 2013

Revision Rules of Civil Procedure

Under the existing rules, parties to a case need only to allege the ultimate facts that constitute their basic positions in the case. The old practice is that the parties make full disclosure of the facts in their possesion only at the trial. This has changed when the Judicial Afidavit Rule began to require the parties to submit the testimonies of their witnesses in the form of affidavits long before trial. Consistent with this change, the proposed new rules would direct the parties to allege in their basic pleadings both the ultimate and the evidentiary facts on which their cases stand. This would facilitate a clear understanding of the case and the issues between the parties from the very beginning and help direct its course.

Sunday, June 2, 2013

Revision of the Rules of Civil Procedure

To augment the efforts to decongest our court, the proposed rules of civil procedure provide that every case with few exceptions must undergo alternative dispute resolutions (ADR) before it is filed in court. The plaintiff cannot file a case without a written demand upon the defendant, seeking a meeting to negotiate settlement. The defendant cannot make a counterclaim without a counter demand and agreeing to meet with the plaintiff or his representative. Only when this fails can the plaintiff file his complaint in court and the defendant his counterclaim.