I.

PREPARING FOR TRIAL

What is a trial?
It is the presentation of credible evidence sufficient to persuade the
court to accept your version of the factual issues.
But how can this be done?

A. Believable Evidence

1. With believable evidence and evidence is believable if it is consistent

with common experience.
Are the following consistent with common experience?
The man to the woman: I will cross the farthest seas and climb the
highest mountains.
The rape victim describing the neighbor who raped her, He is good
looking.
The defendant in an ejectment suit: I did not pay rents because the
plaintiff never collected them.

2. Certain proofs of facts may be inferred from given facts. What

constitutes believable inference drawn from given facts? An inference drawn
from given facts must be logical. Thus:
The ground was wet, therefore, it rained.
A married woman goes to a motel with a man other than her husband
to pray the rosary.
His salary as customs examiner is P30,000 a month yet he drives a
BMW.
The testimony must be compatible with the physical evidence. Thus:
A witness testified that the accused stabbed the victim with a fork. The
medical examiner found slash wounds on the victims body.
The accused claims that he did not stab the victim yet his fingerprints
are on the handle of the knife found on the victims body.

3. A partys evidence to be believed must also be compatible with the

circumstances that surround it.
a) Do the antecedent circumstances support the fact that your witness
claims? Thus:
The complainant claims that he gave the accused public official P1
million cash but complainant could not show from what source he got the P1
million.
The student suspected of stealing his classmates cellphone told
someone that he lost his cellphone on the preceding day.
b) Do the concomitant circumstances support the fact that your witness
claims? Thus:
The witness said that he saw the accused walking across the farm at 1
a.m. though it was a moonless night.
The witness claimed that the accused killed his girlfriend in her house
when he was in fact in school at the time mentioned; the professors
attendance record shows that the accused was in class.
 c) Do the subsequent circumstances support the fact that your witness
claims? Thus:
The prosecution claims that the rape victim was mute and could not cry
out but when the defense lawyer pricked her with a needle, she made a loud
cry.
The man accused of robbery bought an expensive television set a few
days after the robbery.
The gun used in the murder of which he was charged was found buried
at the back of his house.

4. A good witness should have no bad reputation. In the Jessica Alfaro

murder case, the lone eyewitness was an informer in police anti-drugs
operations. She initially offered to present to the NBI a witness to the murder
but, having failed to do so, she volunteered to be the witness herself.
Can a person previously convicted of perjury be trusted to tell the
truth? No.

5. How does a credible witness relate his testimony?

a) He relates his testimony spontaneously, meaning that he listens to
the question and gives his answer as he is able to formulate it. He does not
have a ready answer.
Lawyer to witness: Why are you claiming moral damages against the
plaintiff?
Witness: Because I suffered mental anguish, serious anxiety,
besmirched reputation, wounded feelings, moral shock, and social humiliation.
b) The witness is consistent in his testimony.
A witness testifies that he took a cab in order to explain why it took him
just a little time to get to a place. But he cannot be believed if he previously
said in a sworn statement that he got to the place by taking a bus.
c) The demeanor of the witness reflects his character for truth. You
doubt the trustworthiness of a witness who slouches or chews a gum in his
mouth (showing lack of appreciation of the solemnity of a testimony under
oath); who pauses too long before answering; or is unable to look the
examiner in the eyes.

B. Stages of Work Relating to Trial

I. Need to Prepare,
Trial is analogous to a military battle.
One side is arrayed against the other. The trial lawyer must be familiar
with the facts of the case which will be the terrain on which the lawsuit will be
fought as well as with rules of engagement.
He must also have ample resources for winning the lawsuit, such as
competent evidence and a law that favors his client.

2. Trial Brief as Litigators Selling Kit.

It is what he needs for a successful presentation of his clients case
before the judge. We have a system of piecemeal trial where a case is heard
in installment for 3 to 5 year. With an organized trial brief, the lawyer does not
have to reread the entire record to prepare for the next hearing.
 3. Contents of a Good Trial Brief.
a) Summaries of the opposing claims of the parties. The lawyer needs
to be familiar with the opposing versions of the case, not just his side of the
case. Making the summaries forces him to see everything.
b) A statement of the issue or issues subject of trial. Only by knowing
the opposing claims of the parties can the lawyer see where the factual issues
between the two sides lie. The issues dictate what evidence a party needs to
present to win the case. A lawyer who does not know the factual issues in the
case and has not put them down in writing is like a blind man who does not
see where he is going.
c) Outline of the applicable law. Given the facts of the case, the lawyer
should know what law would operate on those facts to the advantage of his
client. If the issue is whether or not the accused raped the victim, both the
public prosecutor and the defense counsel should know the elements of rape
and the applicable jurisprudence nearest to the facts of the case under
litigation.
d) Theory of the case. Your theory of the case is a statement of the
facts and the law that represent your clients best and winning position.
Ideally, it should look like an outline of how your memorandum of
arguments would look at the end of the trial.
e) Detailed narration of each witness, with supporting documentary
evidence if available. You need to sit down with your client and carefully over
all the facts with him, leaving no detail. Letting your client and his witnesses
write their stories is a good practice.
f) A detailed outline of the facts that your opponents evidence will
prove. The sworn statements of your opponents client and his witnesses are
usually made available to you long before trial. Writing a detailed outline of
these statements forces you to analyze and evaluate them.
g) A cross-examination guide. These consists of the probable
questions you would ask your opponents witness to demolish his or her
testimony. They should be arranged in proper sequence that would produce
the best results.
h) Probable objections to the substance of the testimony of a witness.
These include objections to privileged matters and hearsay testimonies and
their exceptions.
i) Outline of anticipated rebuttal evidence from both sides.
j) Report of progress of trial and notes on revision of strategies.
k) An exhibit file. This file will help you find the documents when you
need them.

4. Preparation Requirements:
a) Assist the witnesses in sorting out the facts from mere illusions.
b) Reject your own clients claims in the face of patent probable facts.
c) Relate each item of fact to another, integrating and seeing them as a
whole.
d) Promptly write every detail of the case before the issues settle down.
E) Be the first to interview witnesses before they develop a bias for
others.
f) Have a check list of elements that need to be proved.