LITIGATION AND TRIAL

PRACTICE

Introduction to Law and
Jurisprudence
03 October 2014


LITIGATION AND TRIAL
PRACTICE
DEFINITION OF TERMS

Litigation (n.) is the process of taking a case
through court. It is a contest in court for the
purpose of enforcing a right or seeking a
remedy. In litigation, there is a
plaintiff/prosecution (one who brings the
charge) and a defendant/accused (one
against whom the charge is brought). To
litigate is to file a charge against someone
and bring a case to court

LITIGATION AND TRIAL
PRACTICE
Trial practice
Trial is a judicial examination and
determination of issues between parties to
action, whether they be issues of law or
fact, before a court that has the proper
jurisdiction. Trial practice therefore refers
to the actual engagement of a lawyer in the
trial stage of the litigation

LITIGATION AND TRIAL
PRACTICE

In the Philippines, becoming a lawyer is
normally associated with court actions.
People view a lawyer as someone who
handles cases being tried in court, actually
appears before courts as counsel to a party
and conducts trial practice with the
objective to win a particular case.

LITIGATION AND TRIAL
PRACTICE
OBJECTIVES:

To have an overview on the basic
practices and conduct of a lawyer of during
the hearing of the case in preparation to
the moot court exercise.

To be able to know the fundamentals of
evidence presentation and trial processes

LITIGATION AND TRIAL
PRACTICE
JUDGE ENTERS THE COURT ROOM

It is important that the lawyer must be on
the court room for the hearing of the case
before the judge arrives. A lawyer may be
fined for arriving late.

LITIGATION AND TRIAL
PRACTICE
JUDGE ENTERS THE COURT ROOM

Everyone in the court room must stand up.
The Clerk of Court will then say the following
All rise, the Honorable ___________ ,
presiding judge of Regional Trial Court
____, has arrived, silence is hereby
enjoined.
Once the Judge hits the gavel, that is the only
time that everyone can be seated

LITIGATION AND TRIAL
PRACTICE

The Judge will then instruct the reading of
the case. Wait until your case is called.
Once your case is read from the calendar
of the court, you must stand up in order
that the court will recognized you

LITIGATION AND TRIAL
PRACTICE
ENTERING THE LAWYERS APPEARANCE

The purpose is to have your appearance be
placed on records.

Good morning your Honor, Atty. (your
name), respectfully appearing as counsel
for the (party you are representing)

LITIGATION AND TRIAL
PRACTICE
ADDRESSING THE COURT

Always address the judge as Your Honor .
Do not interrupt while the judge is still
speaking. If you wanted to say anything to the
court about a matter not being asked or you
want to comment on any statement made by
the adverse counsel, seek the permission of
the court by saying Your Honor, please...
then proceed with your statement

LITIGATION AND TRIAL
PRACTICE
PRESENTATION OF EVIDENCE

When your case is set for trial, the court
will ask you if you are ready with the
presentation of your evidence. Just say
ready and then proceed to call your
witness on the witness stand

LITIGATION AND TRIAL
PRACTICE
PRESENTATION OF EVIDENCE

Once in the witness stand, the witness will
be sworn in before testifying

Do you swear to tell the whole truth and
nothing but the truth before this
Honorable Court so help you God?

LITIGATION AND TRIAL
PRACTICE
PRESENTATION OF EVIDENCE

The clerk will then ask the witness
regarding his/her personal circumstances
(name, age, address, work, work place).
These will again be read to the Court

LITIGATION AND TRIAL
PRACTICE
PRESENTATION OF EVIDENCE

Offer the testimony of the witness
(TESTIMONIAL EVIDENCE) at this point
state to the court the matters that the
testimony of the witness will be proving

Your Honor, we are offering the testimony of
the witness to prove the following... With
the permission of this Honorable Court

LITIGATION AND TRIAL
PRACTICE
PRESENTATION OF EVIDENCE

The judge will then ask the opposing
counsel to comment on the offer made. If
no comment , the lawyer will just say
Subject to cross examination, your
Honor The judge will then instruct you to
proceed with the presentation of the
witness.

LITIGATION AND TRIAL
PRACTICE
DIRECT EXAMINATION
- taking of the oral testimony of the
witness in open court under oath or
affirmation, on matters which are within
his personal knowledge or competence
and are relevant to the issues involved in
the litigation, with the end in view of
building up the case theory of the party in
whose behalf he takes the witness stand.

LITIGATION AND TRIAL
PRACTICE
DIRECT EXAMINATION
1. You cannot ask leading questions except on
preliminaries
2. The witness must always address you as sir or
maam
3. Be methodical
4. Lay the foundation (setting the background)
5. Questions must be broad avoid specific
questions , be sure that the answer to the
question will enable the witness to narrate e.g.
What happened next, if any?, What did you do
after that, if any?.

LITIGATION AND TRIAL
PRACTICE
DIRECT EXAMINATION
Be sure that documentary evidence are identified
Do you have a copy of that promissory note
(witness is handing to me a copy of the
promissory note date..... or I am showing to
you a copy of the promissory note dated....
Kindly identify if this is the promissory note you
are referring to.. Have it marked afterwards
Your Honor please, may I request that this
promissory note identified by the witness be
marked as Exhibit....

LITIGATION AND TRIAL
PRACTICE
DIRECT EXAMINATION
If the witness is an expert witness, be sure to
qualify first before proceeding with the
testimony, unless the opposing counsel
agrees to stipulate on the qualification of the
witness. As a rule, a witness cannot give out
opinions as part of the testimony except those
regarding the identity, handwriting, mental
sanity, impressions of the emotion,
behaviour, condition or appearance of a
person whom he has adequate knowledge.
Another exception is the testimony of an
expert witness.

LITIGATION AND TRIAL
PRACTICE
DIRECT EXAMINATION

Once your through asking the witness, say
That would be all for the witness your
Honor, then cross-examination will
follow.

LITIGATION AND TRIAL
PRACTICE
CROSS EXAMINATION
- Is the interrogation of the witness upon a trial
or a hearing by the party opposed to the one
who produced him. The object of the cross
examination is to weaken or disprove the case
of ones adversary, and break down his
testimony in chief, test the recollection,
veracity, accuracy, honesty, and bias or
prejudice of the witness, his source of
information, his motives, interest and
memory and exhibit the improbabilities of his
testimony (98 CJS 126)

LITIGATION AND TRIAL
PRACTICE
CROSS EXAMINATION

1. Determine the necessity of cross-examination and do not cross
just for the sake of doing it. Analyze carefully the testimony
on direct before formulating questions for the cross-
examination
2. Always cross examine to the main point. Avoid repetitions. Do
not give the witness a chance to explain or clarify a
contradicting or vague testimony he made on direct
3. Observe courtesy and respect
4. Leading questions are allowed. However, refrain from
misleading questions
5. Never argue with the witness
6. Ideally, questions should call only for a yes or no
answer
LITIGATION AND TRIAL
PRACTICE
RE-EXAMINATION OF THE WITNESS

You may conduct a re-direct and re-cross
examination, whichever is applicable, and
the necessity of the same will be a case to
case basis. Normally, a lawyer conducts a
re-direct or re-cross for matters covered
during direct and cross or relevant to the
same, and those matters must be clarified

LITIGATION AND TRIAL
PRACTICE
CLARIFICATORY QUESTIONS

The judge, on his discretion, may conduct
clarificatory questions towards the witness
and is not subject to the usual restrictions
when the witness is presented on direct or on
cross. Clarificatory questions serves as an aid
for the judge to extract facts that will aid him
in deciding the case that were not asked
during direct or cross
LITIGATION AND TRIAL
PRACTICE
OFFER OF DOCUMENTARY EXHIBITS
Once the testimony of the witness is concluded and
you are already resting your case with respect to the
presentation of the evidence, documentary exhibits
must be formally offered to be admitted by the court.

You Honor, we are formally offering the following
documentary exhibits for the admission of this
Honorable Court:
Exhibit A Promissory Note dated 16 September 2009
to prove that defendant secured a loan from the
plaintiff
LITIGATION AND TRIAL
PRACTICE
OBJECTIONS

Objection during the testimony of the
witness must be raised as soon as the
cause for the same becomes apparent.

Objection to the documentary evidence
must be made after the same is offered.

LITIGATION AND TRIAL
PRACTICE
GROUNDS FOR OBJECTION
Testimonial Evidence:
Leading questions (on direct)
Misleading questions (on cross)
Opinion (with exceptions)
Vague, indefinite, uncertain questions
Argumentative questions
Competency and relevancy
Hearsay
No Basis
Repeatedly asking the same question when it was already
answered (on cross)
Questions containing more than one proposition

LITIGATION AND TRIAL
PRACTICE
GROUNDS FOR OBJECTION
Documentary evidence:
Admissibility
Genuineness, due execution, truthfulness
Relevancy and materiality
Best Evidence Rule
Parole Evidence
Failure to identify during trial

LITIGATION AND TRIAL
PRACTICE
OBJECT EVIDENCE

RULE 130, Section 1 Object as evidence
are those addressed to the senses of the
court. When an object is relevant to the
fact in issue, it may be exhibited to,
examined or viewed by the court.

LITIGATION AND TRIAL
PRACTICE
ADDITIONAL TIPS:
When arguing about a specific matter, always
address your concern to the court. Be
courteous to your opponent. Avoid name
calling or any other form of character
assassination against the adverse counsel.
Be gentle in the manner you make your point.
Do not shout or curse your opponent. Finally,
whenever a judge makes a ruling over an
issue brought before it in open court, either
you submit to it or inform the court that you
intend to appeal the subject ruling but never
argue with the judge.

LITIGATION AND TRIAL
PRACTICE
END OF COURT SESSION

All must stand up once the hearing is
concluded and the judge is about to leave
the court room. If other cases are still to be
heard, ask permission from the court
before leaving Permission to leave your
Honor

LITIGATION AND TRIAL
PRACTICE
MATTHEW 5:25

Make friends quickly with your opponent at
law while you are with him on the way, so
that your opponent may not hand you over
to the judge, and the judge to the officer,
and you be thrown into prison.