CHAPTER IV CLINICAL LAWYERING AND COUNSELING A. Interview of Client (1) Establish essential elements of attorney- client relationship The initial step a lawyer should start to perform an act constituting as practice of law, is the establishment of client-lawyer relationship. Until this relationship is clearly defined and created, rights and obligations that arise between them cannot be invoked or enforced like the right to payment of attorney’s fees and the right to the mantle of privileged communication. The best proof of the existence of client-lawyer rela tionship is, a written contract of lease of services or retainer ship contract. Be as it may, a contract of employment which creates a lawyer-client relationship may be in any form: whether express or implied, and whether verbal or writte?- Once the lawyer has Performed an act that constitutes Practice of law, no other Proof is required to show i existence except the Primary evidence of the act itself. But 90CLINICAL LAWYERING AND COUNSELING a1 in order to forestall any future misinterpretation of the authority that the lawyer should exercise especially in the financial aspect, the lawyer’s remuneration and the extent of contingent fee he is entitled to, a written contract of employment containing specific terms and conditions is still considered a must. For when things go wrong or sour, there can be no more humiliating and embarrassing scene inside the courtroom, than that of a lawyer quarreling with his client for the collection of attorney’s fees, especially when the client is a balasubas, in common parlance, or one who has no word of honor. In the course of interview, the client should be made aware of his responsibilities towards the lawyer, inter alia: a. Lawyer is entitled to attorney's fees It should be impressed upon the client that the law- yers fee is an essential ingredient and guarantee of a satisfactory service, it being the lawyer’s lifeblood. Al- though lawyering is not a mercenary occupation, however, whether as a sheer incentive or to be regarded as a just wage, it stands to reason that one who has rendered an honest and appropriate service should be duly compen- sated. In Albano vs. Coloma, Adm. Case No. 528, Oct. 11, 1967, it is worth re-emphasizing here the Supreme Court’s warning that, “Counsel any counsel, who is worthy of his hire, is entitled to be fully recompensed for his services, with his capital consisting solely of his brains and with his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of a client to escape payment of his fees. It is indeed92 LecaL Counsetinc FoR PRactiCciING LAWYERS ironic if after putting forth the best that is in him, to Secure Just ice for the party he represents, he himself would not get his due. Such an eventuality this Court is determined ;, avoid. It views with disapproval any and every effort of those benefited by counsel’s services to deprive him of his hard. earned honorarium. Such an attitude deserves condemng. tion.” “An express valid contract stipulating for the compen. sation which the attorney is to receive for his services js generally held conclusive as to the amount of compensa- tion.” (Rodfish vs. Fox, 39 Am. Dec. 611; Martin, Legal and Judicial Ethics, p. 170) “Tf a lawyer renders valuable services to one who receives the benefits thereat; a promise to pay reasonable value is presumed unless such services were intended to be gratuitous. (Young vs. Bruere, supra) The mere absence of an express promise will not prejudice the lawyer’s right to recover reasonable fees; formal contracts of employment are not necessary. However, the party sought to be charged must be free to take as well as reject the benefits of such services. He must have acquiesced willingly. If the circumstances give him no choice but to accept the benefits of the lawyer’s services, 10 implied contract to pay reasonable fees arises. (5 Am. Jur: 352; 7 C.J.S 1041; Martin, Legal and Judicial Ethics, p- 178) As to the mode of payment for attorney’s fee, the a ceptance fee which usually is the initial payment upoP acceptance of the employment may be made in lump sum cash, or in staggered basis, say 50% down, and the balance payable within a specific period. The appearance fee of the lawyer may depend upon the mutual understanding e tween the lawyer and client. The appearance fee vi practicing lawyers usually charge the client is p1,000CunicaL LawyerRING AND COUNSELING 93 per hearing for appearance before inferior courts, and 2,000.00 per appearance before Regional Trial Courts. In Metro Manila where lawyers spend higher representation expenses, the appearance fee per hearing may range from P2,000.00 to P5,000.00. (2) Client cannot dismiss the lawyer at will The client should be cautioned that while it is his pre- rogative to terminate the lawyer’s services, this right is not absolute without the approval of the court which must first be obtained in a proper proceeding for that purpose. This is especially true when changing a lawyer occurs in mid- stream or while the trial is in progress, without prior notice to the court as to interrupt the hearing abruptly to the prejudice of the proper administration of justice. Before the client can dismiss the services of the lawyer, he must file a motion to that effect informing the court that he is substi- tuting another lawyer for the present one, giving his reasons therefore, to allow the court reasonable time to reset the hearing, and prevent the witnesses who were subpoenaed from incurring unnecessary expenses in coming to court only to be told that the hearing has been cancelled. On the other hand, the lawyer may withdraw his ser- vices under any of the following circumstances: 1. when the client pursues an illegal or immoral course of action in connection with the matter he is handling; 2. when the client insists that the lawyer pursue a conduct violative of these canons or rules;94 LeGaL CouNsELING FOR PRACTICING LAWYERS 3. when his inability to work with Co-counse| not promote the best interest of the client; 4. when the mental or physical condition of the lay. yer renders it difficult for him to carry out th, employment effectively; 5. when the client deliberately fails to pay the fees for the services or fails to comply with the Fes tainer agreement. 6. Other similar causes. Will (3) Lawyer’s authority to control trial The lawyer’s authority to control trial should be rec- ognized by the client as limited only to matters of proce- dure. The client therefore has the right to question the lawyer’s authority to choose the proceedings or the legal remedy he will adopt involving his case, and the witnesses he is going to present in support of his cause. Conversely, the client should be honestly apprised, that the lawyer's authority does not include the act of releasing a secu- rity or extend the time of payment, release 4 guarantor, accept a certified check as payment of client's claim, compromise his client’s rights or confess judgment nor enter into stipulation of facts, or to agree on a judg ment based upon the pleadings, without a special authority (special power of attorney) therefor(e) from the client. (4) Interviewing techniques (determine facts) The technique in interviewing a client should be all- embracing and exhaustive as possible, A lot of psycholosY should be applied when Sitting face to face with the client always studying his mannerisms, his propensity to prevaCunical LawyerInc AND CounseLInG 95 cate and twist facts, and to exaggerate to the extent of even telling the lawyer to adopt his own strategy and defense. But before allowing him to start with his narra- tion, put him at ease and in a relaxed mood as possible by telling him that you are his faithful friend who will stand by him under all circumstances that led to the violation. Anyway, let him relate spontaneously all that he knows about the case by avoiding a slight interruption as possible. After he had finished his story, ask him if he has not forgotten anything, then let him add some more bit parts to his original version. Let him understand that all that he is supposed to do is to tell the naked truth, and leave the job to you as to what theory or defense to adopt. But do not allow him to dictate on what procedure or theory to follow or course of action to take, because this is a matter of procedure that falls within the ambit of the lawyer’s authority. (5) Be frank and firm to the client Always expect that there are clients who would delib- erately hide the truth from their lawyers and purposely suggest to pursue a different or illegal course of action in violation of professional ethics. So that you must always be on guard for this client’s attitude. In brief, bluntness is the name of the game. Remember that you are the lawyer, and he is only a client who begs for your help, hence, you are supposed to be in control of the situation, and be firm to put a stop to his aggressiveness and naughtiness. You should be blunt with this kind of client by telling him that you do not need his money if he cannot trust you, hence, he had better look for another lawyer.us Lecat CounseLine FoR Practicine Lawyers Above all else, give your client stern warnings: that you will not accept a half-truth or lie, or anything less than the truth: that it is not for him to teach you what to gy with his case in matters of procedure because such is your job. A new practicing lawyer cannot have any assurance that what his client is telling him is the truth. Perhaps, with a very few exceptions, but generally he may not be able to read the mind or even the heart of his client. But as you gain experience through the years, a lawyer who is really experienced and who dedicates himself to the practice of his profession should be able to know from experience, from the background, and from every aspect of practice, when and when not to believe his client. Anyway, no lawyer should hesitate to tell his client what his impression is about him after hearing the prelimi- nary details of his story. And this is what the lawyer should tell the client: “My friend please, I am experienced enough to know that you are not telling me ex- actly the whole thing. Why don’t we be more frank to each other? In that way, I can better handle your case.” From that point, the ordinary lawyer follows up his appeal for frankness and openness on the part of the client with another remark: “Better tell me the truth and if there is anything that should be hidden, I will tell you how to do it. This may sound a little bit unorthodo* but as the late Supreme Court Justice Antonio Barred? says: “I insist that cases must go on and off according @ what is basically right. No other test is supposed to dep" from this guideline in interviewing clients, since it is ° first function even in the preparation of pleadings t° ieCuinicaL LAaWYERING aND COUNSELING 97 out what the truth is before putting it down in writing in addition to simplicity.” (6) Avoid frequent interruptions Once the client or witness has started talking, avoid interruption, unless absolutely necessary to complete a point. Not only will his trend of thought be distracted that might lead him to forget certain essential points in his story. But frequent interruptions while the witness is telling his version of the incident might cause the client or witness to be rattled and confused, such that his narrative will appear incoherent and disjointed, Worse, you will waste considerable time in making him repeat his story should he lose track of the details. If you have any questions to ask for the sake of clarification, ask them after he had finished his narration, and continue to ask him whether there are incidents which he missed to relate to you and if there are any then allow him to complete his story. (7) Conduct your interview in the language that the witness speaks It is inconceivable how a lawyer will be able to elicit the cold and naked facts from a witness who cannot under- stand the language of his own tongue. Except in large law firms which employ interpreters, a Filipino lawyer who is engaged in a solo practice, must aside from being articu- late in the English language, learn how to communicate with practically all kinds of dialect that are essentially spoken in the Philippines like Tagalog, Cebuano, Honggo. Iocano, Kapampangan, and Bicolano, and perhaps Chava- cano which is the dialect being spoken in Zamboanga. It is not necessary that he should be a linguist, but it is suffi-9B Lecat COUNSELING FOR PracticING LAWYERS cient that he can drive home his point or be able to explain in the manner understandable to the witness he is inte; viewing. At the end of the interview, make a draft of the wit. ness’s story, as much as possible in typewritten or comput. erized form if you have a computer machine, and allow him to read his version as appears on the paper, likewise in the dialect known to the witness. Thereafter, ask him whether he has related everything as written comprising his problem, and if there are missing points, make some insertions, revisions and amendments in your draft before reducing the same into its final form. This is especially true with respect to affidavits that support a complaint or petitions to be filed in court or the public Prosecutor's office. (8) Interview all available witnesses Since the narration of witnesses shall constitute your evidence in court, not only should the interview be con- fined to the client, but to all available witnesses who will corroborate the client’s version. When all the witnesses have told their stories, classify each according to the importance and probative value of his testimony, by de termining as to who should be put first on the witness stand, who should be considered the star witness, who should be an expert witness and alternate witness in case one or some of them become unable to answer the sub- poena. If as a result of your evaluation, the nature of the te* timony of a witness is merely corroborative, his testimony may be dispensed with. So also if the gist of the witness testimony had already been testified to extensively 2CunicaL LaWvERING ano CouNSELING 99 impressively by the client himself or by another witness, you may decide to do away with his presentation Since proof beyond reasonable doubt in a criminal case ae pre- ponderance of evidence in a civil case, is not determined by the number of witnesses you present, but by the credibility of a witness’s testimony — which every practicing lawyer should be conversant about. . However, an expert witness should not be dispensed with when his testimony is vital to prove the result of a forensic examination of a handwriting, bullets or slugs recovered from the scene of the incident, determination of the firearm used in the commission of the offense, traces of spermatozoa taken from the body of the rape victim, paraphernalia seized from a drug suspect, determination of whether the suspect is positive for alcohol or prohibited drug, traces of parts of the human body like strands of hair recovered from the scene of the crime, skin cut, finger- prints and footprints that have been photographed or reproduced from the scene of the incident to be utilized for comparison with the suspect’s own physical foot and finger lines, result of autopsy or medical examination to deter- mine the healing period and gravity of the wounds inflicted on the victim’s body, the trajectory of the bullet wound — all of which are crucial to determine whether the proper charge would be consummated, frustrated or attempted homicide or murder, or serious or less serious or slight physical injuries. (9) Trial brief preparation For a more effective and systematic presentation of he best practice is to prepare a trial trial. A lot of lawyers do not pay e, either because they are too busy evidence in court, t! brief before going to attention to this practic100 LeGat CouNseLING FOR PracticING LAWYERS to attend to such meticulous job, or they are just lazy, Bu a good trial lawyer is usually equipped with a trial brig: before appearing in court. But whether you Agree o, disagree with this statement, there can be no substitute for a thorough preparation before entering trial. Even the mog brilliant lawyers prepare a trial brief before starting the Presentation of evidence to avoid cramming, or disorgan. ized presentation of evidence, overlapping presentation of evidence, or simple mistake or failure to present a vita] evidence for lack of a guide or written reminder in front of him. An eminent jurist once said that, a mediocre lawyer with a thorough preparation and trial brief during trial, may win a case over his brilliant adversary who lacks preparation. Of course, there are government prosecutors whose case load makes it impossible for them to prepare a trial brief for each of the cases they are prosecuting. This author is talking thru experience as a former Assistant Provincial Fiscal of Antique, who used to commute from one RTC Branch to another, by asking the trial Judge in one Branch to defer the hearing until two (2) hours there- after, because he is in the thick of evidence presentation before another sala, where the case he is prosecuting, cannot anymore be moved or reset, because the hearing scheduled for the last and final resetting. And considering that the criminal cases that he used to prosecute for ¢a¢ sala are numbered no less than five (5) cases for ea¢ Branch daily, he did not have time even to interview ™ witnesses, much less did he have time to prepare 2 brief before appearing in court. Usually, he had no more time to even read the affidavits of the witnesses before appearing in court, where he used to start propoundi” ". + 2 if direct examination of the witness by glancing at theCunical LAWYERING ANO COUNSELING 101 ness’s affidavit for the first time. But this routine practice does not assure of any productive results and may end in the dismissal of the case thru demurrer to evidence. Anyway, the trial brief should contain a list of wit- nesses and the order of their presentation as to which witness is going to testify on this or that document or exhibit. In criminal cases, it is a better practice to present first the star witness, who is an eye-witness to the commis- sion of the crime. There is danger in the presentation of the star witness as the last witness, because in the event said witness dies during the pendency of the case in court, or would be kidnapped or bribed by the defendant, you will have lost the testimony of a witnesses considered so vital and irreplaceable. (10) Determine client’s needs and priorities Interviewing techniques must cover questions involv- ing the client’s priorities and needs that produce quick results, as well as for his/her future protection and bene- fits. Marriage problems are the most common priorities of not only a female, but also of male client as well. The lawyer therefore must possess a vast knowledge of our procedural laws and be able to define to his client the remedy on the first interview, and be able to define to his client the appropriate remedy to his/her problem. For example a client comes to you complaining that she cannot anymore withstand her husband’s jealousy, his excessive dependence on his parents in making family decisions especially in the performance of his marital obligations, his continued neglect and refusal to extend support to her and their only child who lives with the mother-in-law, his habitual drunkenness and alcoholism102 Lecat CounsELinc FOR PRACTICING LAWYERS that drives him to violence and beating her whenever he comes home at night — all of which appear to be valiq grounds for initiating a complaint for marriage annulment on the ground of psychological incapacity. Under the surrounding circumstances, the client’s firs, Priority seems to be that of gaining custody of their minor child who lives with the husband’s parents. Otherwise, the child-minor would be deprived of the most essential need for parental care and guidance so indispensable for his health and growth, both physically and mentally during his formative years. But since the child is more than seven (7) years of age, hence, under the Family Code, the welfare of the child should be the paramount consideration in an action for custody of the minor. For minors of this age, a Petition for habeas corpus appears to be the quickest relief to regain custody of the child. However, should habeas corpus proceeding be unable to elicit favorable judgment from the court, then an action for the custody of the minor could be the second best alternative with prayer for sup- port pendente lite and damages. However, if the client-wife prefers an early dissolution of her marriage so that she can contract a second marriage then the proper remedy would be to file an action for annulment of marriage on the ground of psychologic@ incapacity with prayer for damages under Article 36 of th Family Code (R.A. No. 209), Much better if the husband © found to be maintaining a mistress in the light of incom testable and incontrovertible evidence, hence, the OT appropriate remedy would be to file an action to decl@™ the absolute nullity of her marriage, so that she ca? oo tract a second marriage once the first marriage is dissolveCunicat LawyeRING AND COUNSELING 103 The lawyer should be well aware about the intricacies in obtaining an annulment decree from the court which takes a longer time. This is so because under Art. 48 of the Family Code of the Philippines, the court will still order the public prosecutor assigned to his sala to conduct an inves- tigation and to appear for the State to see to it that no collusion exists between the parties, and that the evidence is not fabricated or suppressed. The public prosecutor therefore is burdened with the task to summon the parties and conduct a thorough inves- tigation for this purpose, and only after being convinced that there is no collusion between the warring couple, should he make a recommendation to the court by way of comment whether to grant or deny the Petitioner’s prayer for annulment of her marriage on the ground of psycho- logical incapacity. How long a time is the public prosecutor allowed to terminate his investigation, will depend upon the discretion of the court to set a definite period for the prosecutor to finish his investigation, without prejudice to his asking for an extension on valid grounds. Potential claims and ancillary remedies: a) in the first case, aside from filing a complaint for annulment, habeas corpus Petition may be insti- tuted to regain custody of the minor; b) a separate action for custody of the minor may be availed of; c) prayer for support pendente lite may be consoli- dated in an action for custody of the minor; da) prayer for award of moral, compensatory and consequential damages may be availed of;‘toa Lecat Counseune FoR Practicine LAWYERS e) prayer for the issuance of a TRO commandin, the defendant husband from visiting the Minor once custody is awarded by the court to the wife, There are two conflicting doctrines which have pe. come landmark jurisprudence for annulment of marriage on the ground of psychological incapacity. In Chi Ming Tsoi vs. Court of Appeals, et al, G.R. No. 119190, January 19, 1997, which was then the talk of the town and among legal circles, where the Supreme Court has spoken more in keeping with Filipino traits and moral values, and still is regarded as Prevailing and sound doctrine, more than the labyrinthian doctrine penned down by former S.C. Chief Justice Artemio Pan- ganiban, in Republic vs. Court of Appeals and Roridel Olaviano Molina, G.R. No. 108763, 13 February 1997. Mr. Justice Justo P. Torres who is the ponente of the Chi Ming Tsoi doctrine, had dignified the basic purpose of marriage. The Chi Ming Tsoi ruling further elaborated that the basic purpose of marriage is procreation and multiplication of the species, over and above all considerations that are dictated by law. For a more vivid and full comprehension of psychological incapacity as a ground for marriage annulment, and in order to guide the virgin law practitio- ner into arriving at a correct evaluation and determination of whether or not the theory of psychological incapacity will prosper, the following findings of the high court 4 culled from the obiter of Chi Ming Choi, relates as follows: “after the celebration of their marriage, the spouses slept together on the same bed in the same room at thé house of the defendant's mother in Makati; that contrary e her expectations, that as newlyweds, they were suppos?Cunicat LawyerING AND GouNseLING 105 to enjoy making love or having sexual intercourse with each other, defendant (husband) just went to bed, slept on one side thereof, then turned his back and went to sleep. There was no sexual intercourse between them during their first night. The same thing happened on the second, third and fourth nights. Instead of spending their honey- moon in a private place so that they can enjoy their first week as husband and wife, they went to Baguio together with Petitioner’s mother, nephew and uncle whom peti- tioner had invited to join them. There was no sexual intercourse during their four (4) days stay in Baguio City, since defendant avoided her by taking a long walk during siesta time or by just sleeping in a rocking chair. They slept together in the same room and bed since May 22, 1988 until March 15, 1989, but during this period there was no attempt of sexual intercourse between them and she did not even see her husband’s private parts nor did he see hers. In plain, defendant is impotent, as closet homosexual as he did not show his penis. Defendant was using eyebrow pencil and sometimes the cleansing cream of his mother. The result of the medical examination revealed that re- spondent wife is healthy, normal and still a virgin.” In his copious discourse on marital obligations be- tween husband and wife, the ponente stressed that, “husband and wife are obliged to live together, ob- serve mutual love, respect and fidelity, bound only by the sanction of spontaneous, mutual affection between husband and wife and not any legal mandate or court order.” (Cuaderno vs. Cuaderno, 120 Phil. 1298). “Love is useless unless it is shared with another. In- deed, no man is an island: the cruelest act of a partner in marriage, is to say “I could not have cared less.” This is soWye 106 LeGaL COUNSELING FOR PRACTICING Lawyers because an ungiven self is an unfulfilled sell: The €goist has nothing but himself. In the natural order, it is sexyg) intimacy which brings spouses wholeness and oneness Sexual intimacy is a gift and participation in the mystery of creation. It is a function which enlivens the hope of pro. creation and ensures the continuation of family relations xxx Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relation. ship. Marriage is definitely not for children, but for two consenting adults who view the relationship with love amor gignit, amorem, respect, sacrifice and a continu- ing commitment to compromise, conscious of its value as a sublime institution.” “Evidently, one of the essential marital obligations un- der the Family Code is to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage. Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psycho logical incapacity.” __ Ina round-about and hypocritical doctrine, in Repub- lic vs. CA & Roridel Olaviano Molina, G.R. N® 108763, 13 February, 1997, however, which makes difficult for a frustrated husband or wife to extricate himself/herself out of a loveless and make-believe kind ° marriage relationship, the high court thru Justice Artemio Panganiban, imposed certain high-tech grounds and pre requisites, that make annulment based on psycholosicé! incapacity almost like Passing through the eye of 4 needle: Instead of upholding the basic a a ic) purpose of marriage Wh!CLINICAL LAWYERING AND COUNSELING 107 is procreation, the Panganiban doctrine, makes the mar- riage of a fertile woman with a closet homosexual and impotent, a scorching hell on earth. For example, how can a distressed wife whose first pri- ority in contracting such marriage was to procreate chil- dren, so that when she becomes old her siblings will take care of her, if all her times that should be devoted to love- making, will have been spent already submitting herself to the following rigid tests and examinations, that before saying her “I do” she is already exhausted and dead tired of complying with such requirements, to wit: 1. she must first obtain a certification from the So- licitor General stating her agreement or opposi- tion without which no decision shall be handed down by the trial court; in addition, she should prove: 2. the root cause of the psychological incapacity which must be: a) clinically and medically identified (this re- quires submission to clinical examination by a medical specialist who has a special training and learning on mental afflictions, like the finding of a neurologist which re- quires payment of consultation fee and brain examinations as brain scan and psy- chological and neurological tests which will take months to finish, depending on how lucrative and fast the payment of his fees; b) this finding of a neurologist must be alleged in the complaint;108 Legat CouNsELING FoR PracTicINs LawyYERS ©) sufficiently proven by experts (neurologi.., and psychiatrists) which means that a pre liminary hearing must be conducted ity court during which said neurologist and psychiatrist must testify to Prove his/her findings; this means another drain from her pocket of substantial amount of Money in payment for attorney’s fees who will con. duct a direct examination of this expert witness (neurologist and psychiatrist) aside from incurring extra expenses for the pro- fessional fees of these mental experts; d) these findings of an expert witness (neu- rologist and psychiatrist) must be clearly explained in the decision; the incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their “I do’s”. The manifestation of illness need not be perceivable at such time, but the illness itself must have at: tached at such moment or prior thereto; such incapacity must also he shown to be medi- cally and clinically permanent and ‘incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex x X¥ such illness must be shown as downright incapa™ ity or inability, not a ref difficulty, much less ill will, usal, neglect or‘CLINICAL LAWYERING AND COUNSELING 409 In the light of the foregoing uphill and stringent re- quirements imposed by the Molina doctrine, it is the au- thor’s humble submission that such monstrous doctrine written by the so-called high-brow but incompassionate dispenser of justice, is intrinsically unrealistic and unrea- sonable, and has reduced the ground of psychological incapacity for marriage annulment inutile and toothless. Instead of minimizing the problem of the Plaintiff, it has all the more aggravated her financial woes and psychological difficulties, so much so that the aggrieved party, instead of undergoing all these financial and mental hardships, she had better indulge in illicit sex or illicit relationship with her paramour. To secure the services of a neurologist or psychiatrist alone who will testify as to the psychological condition of the future partner or fiancee, which com- mands a professional fee of no less than P50,000.00 under the present standards of medical specialists, already poses an insurmountable stumbling block to the success of the annulment suit on the part of the complainant who merely earns a substandard wage or salary, or who could hardly afford to pay her lawyer’s fees and professional fees of mental experts, since an annulment suit can be classified as a kind of elitist suit of the rich and the famous, that cannot be considered an indigent suit or which falls within the ambit of pro bono litigation. Despite her haste to extricate herself very quickly out of an infernal and farcical marriage relationship where sexual intimacy that enlivens the hope of procreation and ensures the continuation of family relations, she will have enmeshed herself into a financial problem that will compel her to run into borrowing, thus resulting in the hemorrhag- ing of her assets and making her a destitute.110 LeGat COUNSELING FOR PracTiciING LAWYERS Indeed, as law mentor and author of legal writings, this author commiserates with the majority opinion jy, Molina case, for being a bigoted and inhuman species of judicial legislation that defeats the sanctity of marriage vows and encourages illicit relationships. Least of all, the Molina ruling that has downgraded the wisdom and realis. tic philosophy of the Chi Ming Tsoi doctrine, which has dignified the purpose of marriage relationship, is anathema to procreation which is the basic purpose of marriage, by forcing two consenting adults to stick together thru thick or thin, to the extent of depriving themselves of the essential ingredient of love-making, because one of them is impo- tent, thru the compulsive mandate of the law or court order that is loaded with unconscionable and insurmount- able caveats and is outlawed in Cuaderno vs. Cuad- erno, 120 Phil. 1298) In the case of a philandering wife, the potential claims are: 1) principal action for annulment of marriage on the ground of psychological incapacity; 2) action for custody of minor children in her cus- tody for being an incompetent and scandalous mother; 3) habeas corpus Petition to regain custody of the minor children; and 4) prayer for moral damages, compensatory and com sequential damages, attorney’s fees and costs; On the part of defendant wife, the following remedies defenses and counterclaims may be availed of —CuinicaL LawyeRING AND COUNSELING 111 1) defense of sexual impotency and refusal to give support, lack of love and attention of a concerned husband bordering on abandonment; 2) defense that plaintiff-husband is incompetent to attend to the welfare of the children, hence, to gain custody of them; 3) permissive counterclaim of support pendente lite and thereafter up to the dissolution of marriage (declaration of absolute nullity of marriage); 4) counterclaim for award of actual, moral and con- sequential damages; and 5) counterclaim for payment of attorney's fees and costs. In another hypothetical case, a client hired your ser- vices with a complaint that her son is a victim of vehicular accident, as a consequence of which he sustained serious physical injuries causing his hospitalization for more than one year. When he was discharged from the hospital, the child became a mental retardate. A computation of all expenses incurred including payment for the services of a physician yielded a total of P1 million pesos; The potential claims and legal remedies in the foregoing case, would include the following: 1) criminal action against the erring driver for the purpose of securing conviction to hold employer subsidiary liable under Art. 103 of the Revised Penal Code; 2) action for quasi-delict under Arts. 2176, 2180, 2184 of the Civil Code;112 3) 4) 5) 6) Lecat CouNnsELING FOR Practicinc Lawyers Prosecution under Art. 263, RPC; direct independent civil action for damage against the employer of the erring driver; . provisional remedy of attachment against the em. ployer’s properties; and motion to suspend criminal case before govern. ment prosecutor's office, on the ground of pend. ency of prejudicial question in a pending ciyj] ac. tion for damages against the employer-owner of the vehicle. As to defenses in vehicular cases 1) 2) 3) 4) 5) 6) defense that offended party is guilty of contribu. tory negligence; defense that the erring driver exercised the dili- gence of good father of a family to avoid accident; defense that the erring driver-accused exercised the last clear chance to avoid hitting the victim; defense that offended party was at fault, in that he was one who bumped on the vehicle instead of the other way around; motion for dissolution of attachment in case On® is issued on employer’s property by filing ‘ counter-bond which should be filed simultan® ously with the filing of a motion to quash the * tachment order; and . in defense that the employer exercised diligence the selection and supervision of his emp!0y' driver.CuinicaL LAWYERING AND COUNSELING 113 (11) Amicable settlement still the best alterna- ive . Even if an action has been filed and remains pending in court, there is no legal impediment for the parties to forge an amicable settlement of the case during any stage of the proceedings. And even if the parties have already formally offered their evidence and a judgment has been rendered by the court, as long as it has not yet become final and executory, the parties could still enter into an out of court settlement from which the court’s judgment shall be adopted, subject to the court’s approval. In fact, this alternative recourse is being encouraged by the courts to avoid prolonged litigations, by the parties’ filing of dilatory and frivolous motions in the appellate courts that cause further delay in the disposal of the case from the court’s docket. Once a compromise agreement has been signed by the parties litigants and approved by the court, “a compromise agreement is binding and has the force of law between the parties, unless the consent of a party is vitiated — such as by mistake, fraud, violence, intimidation or undue influ- ence — or when there is forgery, or if the terms or the settlement are so palpably unconscionable.” (Clark De- velopment Corporation vs. Mondragon Leisure and Resorts Corporation, 517 SCRA 203) “ft is a sound policy for the Court to favor and encour- age litigants to settle their controversies extrajudicially where the same is possible and lawful, not only because it minimizes the expenses and troubles a litigation usually entails, but also due to the fact that in most cases, such agreement redounds to the benefit of both parties and114 LeGat CounseLinG FOR PRACTICING LAWYERS results in their mutual satisfaction.” (Nieto Jr. vs. Co of Appeals, 529 SCRA 285) Lawyers who by virtue of their lawyer’s oath have a commitment to serve both the rich and poor alike, should strive to cast away that brand of being mercenaries who are interested in money alone, and instead sacrifice par of their valuable time and attorney’s fees in the service of the destitute and pauper litigants, or to invest some of their time in civic undertakings and charitable works, ure (12) Analysis and development of theory As soon as you are through with the interview of wit- nesses including the client, and upon your evaluation and analysis of the facts as narrated by them, you can build a court-bound case, and a valid cause of action or defense can be drawn from their versions, you may now proceed to research on the provisions of the substantial and proce- dural laws that are applicable. Do not be contented with one reading, but read and reread many times the legal provisions that support your theory on the basis of the versions of the witnesses. Analyze the facts on the basis of the stories as told by the witnesses, in relation to the applicable legal provisions, then check and counter-check whether your theory will prosper by availing of the remedies and/or defenses under the Rules of Court that will produce the desired result. Study further and read some past and recent jurispruden® promulgated by the Philippine Supreme Court and othe! Federal Courts in the United States that find applicatio" 8 the facts as related by the witnesses, Research of applicable juris extend 1 the following referencac: Jurisprudence may10. 11. 12. 13. 14. 15. (13) SO Oe ON CLINICAL LAWYERING AND COUNSELING 115 Philippine Supreme Court decisions; Philippine Reports; Supreme Court Reports Annotated (SCRA); Corpus Juris Secundum; Treatises and legal writings of renowned writers; Law textbooks; Rules of Court; Interim Rules of Court; 1997 Rules of Civil Procedure; Revised Rules of Criminal Procedure; Civil Code of the Philippines (R.A. No. 386); Family Code of the Philippines (R.A. No. 209); Revised Penal Code (Codal and Annotated); Court of Appeals decisions; Opinions of the Secretary of Justice; Lectures of legal authorities culled from Work- shops and Seminars conducted by the U.P. Law Center on continuing legal education; Administrative Orders and regulations of the DAR and Department of Labor; Theory of the case development Theory of the case has been defined as the particular line of reasoning of either party to suit and aim to bring together certain facts of the case in a logical sequence and correlate them in such a manner as to produce in the mind a definite result or conclusion that the advocate believes entitles him to the court judgment or decree in the face of such conclusion based on certain principles of law. The116 Lecat CouNseLING FOR PRACTICING LAWYERS theory thus constructed lies at the very foundation of 7 case. Not only must the pleadings be drawn in accordan therewith, but the introduction of evidence and the ar, Ce ments must strictly follow the theory and be governeq a it. And the theory of the case does not end in the trig court. It must be faithfully adhered to on appeal. For once a theory has been formulated as set forth in the pleading, you are no longer allowed to change it and you are bound by it and all the allegations in your pleading up to the termination of the case. Pleadings may be amended once as a matter of right before service of q responsive pleading is permitted, and before the action js placed in the trial calendar, and thereafter by leave of court. But this leave of court may be refused by the courtif the theory or defense is substantially altered. (Rule 10, Secs. 2 and Rules of Court) Hence, the theory or defense in a case must remain constant up to the termination of the case, the termination here means the end of all proceedings not only in the trial stage, but also in the appeal stage of review by the appe!- late court. (14) Hypothetical Case A, borrowed a sum of money from B in the amount of P100,000.00, and to secure the payment of the loan, # executed a document titled Deed of Sale with Right Repurchase in favor of B, over his property consisting : parcel of riceland with an area of five (5) hectares, @ es class riceland which is irrigated. The term of the oe one (1) year from the execution of the contract execution of the document was accompanied by 4 SY Bs der of a certificate of title, TCT No. 31990 in favor °CunicaAL LAWYERING AND COUNSELING 417 who immediately went to the Office of the Register of Deeds to register the encumbrance. Upon failure of A to pay the loan after the lapse of one year, B had the title to the property consolidated in his name; But when B de- manded of A to vacate the premises, the latter refused to vacate, at the same time asked B to allow A to return the amount within one (1) month. B did not agree, and instead filed a complaint with the Regional Trial Court for recovery of Ownership and Possession of the property offered as collateral for the loan subject of the pacto de retro sale. A went to you and hired your services to counter B’s action for recovery of possession and ownership of the encumbered land. What would be your theory and defense to traverse B’s cause of action? At first blush, based on the allegations of B’s initiatory pleading, the transaction is really that of pacto de retro sale the terms and conditions of which are expressly spelled out in not only from the tenor of the document that A had executed in favor of B. Nevertheless, upon a deeper evalua- tion of the surrounding circumstances and from the testi- mony of A which appears to be credible, although she was compelled to execute that document entitled Deed of Sale with Right of Repurchase, her real intention was simply to borrow money from B to answer a temporary financial difficulty. But since she is unschooled, she did not under- stand quite well that B was going to consolidate the title to her land upon default of payment for the loan in a paltry amount of P100,000.00. considering that the price of a first class and irrigated riceland which she offered as collateral, runs up to P300,000.00 per hectare at the time of the transaction. Hence, her five (5) hectare ricefield would command a price of up to P1,500,000.00 in the market, although that is farthest from her intention to part with the118 LeGat Counsetine For PRACTICING Lawyers land which she inherited from her late mother. Besides, th amount of P100,000.00 which is the consideration of the Purported pacto de retro sale is grossly disproportionate iy the actual value of the property offered as security for yy, loan. As counsel for A, what would be your theory and de. fense in your responsive pleading? The most appropriate refutation and defense here, is the theory of equitable mortgage under Article 1602 of the Civil Code which Provides: “The contract shall be presumed to be an equitable mortgage in any of the following cases: 1) When the price of the sale with right of repur- chase is unusually inadequate; 2) when the vendor remains in possession as les- see or otherwise; 3) xxx 4 xxx 5) xxx 6) In any other case, where it may he fairly in- ferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.” Verily, the afore-narrated case is an actual litigatio? before the Regional Trial Court of Antique, Branch 10, that this author had incidentally handled and bore the brunt ° saving defendant from the fangs of a ruthless usurel Although a case of pro bono because his client Was indigent litigant, this author was however unmindful thalCunical LawYERING AND COUNSELING 119 plaintiffs counsel was a veteran practitioner, a former Congressman and retired RTC Judge. He also was aware that the taste of the pudding is proved not in the icing, but in the eating. Nevertheless, even as his client was indigent, she was raising a herd of ducks, hence, the client out of gratitude, was generous enough to reciprocate with one basket full of duck’s eggs. Here, the late Presiding Judge Hon. Roberto Zurbano from Camarines Norte, was in concord with this author’s theory of equitable mortgage, based on the unrefuted testimony of defendant A. that the current price of an irrigated riceland at that time which is located in the heart center of rice yielding area of San Jose de Buenavista, was P300,000.00 per hectare, Thus, the P100,000.00 that Plaintiff B loaned to defendant, was evidently and unusu- ally inadequate for a five (5) hectare riceland. This, plus A’s spontaneous declaration that she had remained, and in fact adamantly resisted Plaintiffs attempts to take physical possession of the property from her with the aid of armed men, since her real intention was merely to offer her land as collateral to secure payment of her indebtedness to B, and not to sell the land a retro. Accordingly, the court granted all the reliefs prayed for in A’s answer, ordering Plaintiff B to surrender the certificate of title to the Register of Deeds, who in effect cancelled the consolidated certificate of title in the name of B, and issued a new transfer certificate of title in the name of defendant A, likewise ordering the Plaintiff to pay defendant attorney’s fees in the measly sum of P200.00, and to pay the costs of the suit. In turn, the defendant was ordered to return to the Plaintiff the amount of P100,000.00 in staggered sums of P20,000.00 per month with legal interest per annum, on the principle of equityTan; Lecat Counseine For Practicins LAWYERS that no one, much less the victorious defendant shal enrich herself at the expense of another. (15) Suggested effective theories in Crimina cases As accused’s counsel in a prosecution for homicide, for example, you may adopt either the theory of self-defense, whether complete or incomplete self-defense, mistake of identity, insanity, minority of the offender or alibi, depend. ing on the strength of your client’s evidence, vis-a-vis a fair and honest evaluation of the weight of prosecution eyj. dence as can be gleaned from the pleadings, and as re. flected from complainant’s judicial affidavit. In the forecast of prosecution evidence, it should be borne in mind that the prosecution is burdened to rely on the strength of its own evidence, and not on the weakness of the defense. Nevertheless, the defense theory should find support from the competency and credibility of its witnesses, and the effectiveness of counsel’s presentation of evidence. A wrong or sloppy manner of laying out a theory on a pleading and the inept Presentation of evidence by an incompetent defense lawyer, may yet be demolished by an able prosecutor on rebuttal. If perchance you believe that the evidence of the prosecution is overwhelmingly strong, then the best strata gem is to avail of the incomplete self-defense theory. It is called incomplete self-defense, because all the elemenS that justify the killing are lacking, the effect of which whe? proved, shall reduce the penalty prescribed by law, from the elements or circum illing are present then a criminal liability and shou iiCunicaL LawyeRING AND COUNSELING 121 be acquitted, in which case, the theory becomes complete self-defense. This theory or defense aforestated, applies in the de- fense of the person or rights of one’s spouse, ascendants, descendants or legitimate natural or adopted brothers or sisters, of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, Provided: That the first and second circumstances are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein. So also, this theory or defense applies to anyone who acts in defense of the person or rights of a stranger, pro- vided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment or other evil motive. (Sections 1, 2 and 3, Art. 11, Revised Penal Code) “Art. 11. Justifying circumstances.—The following do not incur any criminal liability: 1. Anyone who acts in defense of his per- son or rights provided that the following cir- cumstances concur: First: Unlawful aggression; Second: Reasonable necessity of the means employed to prevent or repel it; Third: Lack of sufficient provocation on the part of the person defending himself.” This procedure is carried out by moving in open court that you will be allowed to present evidence to prove that122 Lecat CouNsELING FoR PRACTICING LAWYERS the accused in killing the deceased, had acted in defense of his person to repel the aggression of the deceased, Without which accused’s able defense of his person or rights, the deceased could have killed him. In proving this theory and defense, you have to put the accused on the witness stand to elicit from his own mouth the facts and circumstances (direct evidence), that enabled him to defend himself ang Prevent the deceased from killing him. Better still, if prior to putting the accused on the witness stand and other corroborating witnesses if any, a sort of tact and diplomacy may be resorted to by making preliminary and out of court arrangement with the Presiding Judge and the public Prosecutor, by your ability of persuasion, without bowing too low or doing some acts that border on unethical, so as not to encounter stiff opposition or objections from the public prosecutor. These are often referred to as extra-legal remedies that are not found from textbooks, nor statutes and Administrative Circulars of the Supreme Court, but by the exercise of some extra-effort on the part of an ingen- ious practicing lawyer who knows which side of his bread is buttered. This kind of practice resulting in a favorable verdict for the accused adds to the reputation of a practic- ing lawyer who wants to excel from his peers, and most assuredly will attract more clients. To illustrate how this theory works, the following a! abbreviated highlights of court proceeding: In a charge for homicide against A, upon arraignment A entered a conditional plea of guilty to the crime as charged in the information, on his lawyer’s advice, on condition that he be allowed to introduce evidence © prove that he acted in self defense in killing the decease’: This will be followed by a manifestation from his counse” ac fallowe:CLINICAL LawyerING anD CouNsEUNG 123 Counsel: Your Honor, may we be allowed to put the accused A on the witness stand for the purpose of proving that he acted in defense of his person in killing the de- ceased?” “Court: Proceed.” After asking the accused some preliminary questions for the purpose of establishing jurisdictional facts, defense counsel propounded the following questions on accused B: “Counsel: With the permission of this Honorable Court.” “Court: Proceed.” “Counsel: “Mr. A, on the night of December 2011, you said you had a drinking spree with the deceased B, together with two other companions, C and D, at the store of Enriqueta Ruiz located along the national road inside the poblacion of Pototan, Iloilo. What were you drinking with the deceased? “Accused: We started by finishing one long neck of Tanduay Rhum, all of which we were able to consume.” “Counsel: | What happened if any after you have fin- ished drinking the two (2) bottles of Rhum?” “accused: B challenged me to a fight, telling me that he has an ax to grind for having insulted him, and without much ado immediately drew his balisong from his hip, and stabbed me with his balisong but did not hit me, because I was quick to parry the blow; “Counsel: When B was not able to hit you, what hap- pened if any?124 Lecat COUNSELING FOR PRACTICING Lawyers “Accused: 1 picked up a piece Of wood nearby abo the size of my arm with the intention to defend et from further aggression, but before B could make Se strike of his balisong, 1 hit him hard on the foreheag ws the wood causing him to fall to the ground. “Counsel: What else happened after B fell to the ground? ler ith “Accused: B attempted to rise but he could not as he fell back to the ground, unable to reach his balisong. go my three companions in that drinking spree loaded him ona tricycle, brought him to the emergency Clinic across the road, but was pronounced DOA (dead on arrival). “Court: Cross? “Prosecutor: No cross your Honor. Based on the foregoing straightforward testimony of the accused, at least two (2) justifying circumstances are present in the act of defending himself from B’s aggression, namely, a) that there was unlawful aggression on the part of deceased B; and (b): there was reasonable necessity of the means employed, that is, a piece of wood that A used in hitting B with one fatal blow, as against a deadly bali- song. Even the third element of lack of sufficient provoca- tion on the part of the person defending himself, is also obvious from the version of accused B, which would have justified the killing. But as A had earlier entered a plea of guilty, this third circumstance can be prayed to satisfy the third circumstance of lack of provocation on the part of the accused. It would have been a happy gamble that could have resulted in A’s outright acquittal, had A and his coums tried to speculate on the theory of complete self-defens*Cuinical LAWYERING AND CouNsELING 125 _ the point in A’s counsel mind of having adopted a theory o incomplete self-defense is, the assurance of a favorable verdict, that entitled the accused to the lowering of the penalty from one to two degrees lower than that imposed by law. : Under Art. 249 of the Revised Penal Code, the penalty imposed for Homicide is reclusion temporal which is im- prisonment of from 12 years and 1 day to 20 years. Since accused A is entitled to a lower penalty by two degrees than reclusion temporal, considering that based on the uncontroverted evidence of accused, he could be credited with not only two but three justifying circumstances, including lack of sufficient provocation on the part of the person defending himself under Art. 11, RPC. Hence, two (2) degrees lower than reclusion temporal, is prision correccional which ranges from 6 months and 1 day to 6 years. Since A is qualified to enjoy the benefits of the probation law which entitles the accused to probation when the penalty does not exceed six (6) years, A, could be released at once from preventive detention upon promul- gation of the decision on the strength of a recognizance by any responsible person in the community who could guarantee his appearance whenever the court requires his appearance, pending submission of post-sentence investi- gation: to the court by the probation officer. (16) Investigation during the pendency of an ac- tion a) Ocular Inspection Under Rule 27 of the Rules of Court, there are modes of discovery that a litigant may avail of and provide im-126 Lecat CouNseLinc FOR PRACTICING Lawyers measurable aid to the Court in the adjudication of the case speedier, thus: “Upon motion of any party showing good Cause there. fore, and upon notice to all other parties, the court jp which an action is pending may: 1. Order any party to produce and permit the inspection and copying or photographing, by or on be. half of the moving party, of any designated docy. ments, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which con. stitute or contain evidence material to any matter in- volved in the action and which are in his possession, custody or control. In Santiago Land Development Corp. vs. Court of Appeals, et al., G.R. No. 106194, Jan. 28, 1997, it was ruled that since the petitioner did not have the right to intervene, it did not have the right to file interrogatories or seek the production of documents by private respon- dents either; or 2. Order any party to permit entry upon desig nated land or other property in his possession or com trol for the purpose of inspecting, measuring, survey- ing or photographing the property or any designated relevant object or operation thereto. The order sh! specify the time, place, and manner of making the !™ spection and taking copies and photographs, and may Prescribe such terms and conditions as are just.” Inversely, this mode of discovery procedure is likew's) referred to as view of an : e : object, and is commonly reso" to in the following cacac- ya) b) oD ad) e h) Dd Kb CuinicaL LAWYERING AND COUNSELING 127 actions for recovery of possessions and ownership of real property; annulment of title; in eminent domain proceedings; ejectment proceedings, and land registration cases; in criminal prosecutions for usurpation of real rights over real property in murder and homicide cases where the place of in- cident is an issue, or territorial jurisdiction in order to determine where the crime was committed; in theft or robbery in order to apprise the court whether or not the crime was committed in an en- closed premises; or inhabited or uninhabited place; in arson cases; in crimes of trespass to private property or dwelling in order to determine the probability or improbabil- ity of the accused to commit the act of trespass con- sidering the physical condition of the dwelling or whether or not the place intended for entrance is re- stricted to the public; in vehicular incidents to determine the point of im- pact, to find traces of tiremarks, to determine the relative distance of one vehicle to another from the time of impact and thereafter for the purpose of finding whether the erring vehicle was running ata speed faster than allowed by law, or the distance where the body of the victim was thrown from the point of impact; in a prosecution for arson, to take a picture of the place of burning taken immediately before and after128 Lean CouNSELING FOR PRAcTICING LAWYERS the burning — this is an evidence of high Probatiyg value to determine the extent of damage, Provided it is taken by an expert photographer or under the supervision of one with sufficient training and gy. pertise in photography. b) Determine the sufficiency of evidence or the lack of it If you are contemplating to draft a pleading, or of fil. ing a criminal complaint, the lawyer should know as a result of ocular inspection whether he could build a case from his findings and be able to sustain them in court. In an action for annulment of title to property for example, it is important to determine whether the evidence consisting of a deed of sale is simulated or not, and the certificate of title is a product of forgery or not. For the purpose of discovering the flaw of title, resort to forensic examination by the NBI crime laboratory, or of the crime laboratory in Camp Crame, may be availed of in order to unearth whether the signature of the vendor in a deed of convey- ance is genuine or not. In a criminal prosecution where the charge is solely based on circumstantial evidence, like finger prints rep! duced from the crime scene, weapons and slugs recovered from the crime scene, strands of hair or portions of skin a human body recovered therefrom, may be submitted © the NBI crime laboratory to determine whether suct weapons or body parts could be traced to the accused. more modern and scientific detection or identity of the culprit in rape cases or crimes against chastity, homicide and murder, or where only circumstantial evidence liK¢ bloodstains produced from the crime scene, or traces ° spermatozoa extracted from the body or clothing of ¥Cunical LAWYERING AND COUNSELING 129 suspect or rape victim, and the result of a DNA test, are vital evidence to corroborate in a cumulative quantity leading to a conclusion beyond reasonable doubt sufficient to sustain a judgment of conviction. c) Probative value of extra-judicial con- fession In the leading case of People vs. Galit, 135 SCRA 465, the Supreme Court pronounced that, for an extrajudicial confession to sustain a judgment of conviction, it must be corroborated by evidence of corpus delicti. Where the charge is anchored on an extra-judicial confession of the accused, it is essential to determine whether said confes- sion could pass the test of voluntariness. Another test on the admissibility of an extrajudicial confession which is usually taken during custodial investi- gation is, whether or not sufficient warnings to the accused were made before the taking of his confession of his right to counsel. Should he opt to waive his right to counsel, to see to it that such waiver was made with the assistance of counsel if not of his own choice, then one provided by the interrogator. The pivotal thing is that, even in the case of waiver by the accused of his right to counsel who would assist him in the taking of his extrajudicial confession, the interrogator is still mandated to provide a counsel to the accused, if not of his own choice, then any available lawyer for that matter in the vicinity. No lawyer whose name appears in the Roll of Attorney’s in the Supreme Court is at liberty to refuse such duty if he happens to be the first choice of the interrogator to assist the accused in executing such waiver. Refieal on the part of a member of the bar to comply with130 LeGaL COUNSELING FOR PRACTICING Lawyers this sworn duty, constitutes as violation of his lawyer's Oath and is a ground by the Supreme Court, for imposing appropriate sanctions against such lawyer. @eople vs. Gali supra) Guidelines in determining whether the evidence on hand are sufficient to sustain a charge or litigation vary in each particular case, and the ultimate evaluator of such evidence is the lawyer who knows his law on evidence and his skill and experience in the application of the substan. tive and procedural laws to a given state of facts. Not only must there be showing that the investigating officer has complied with the obligation to inform the person under investigation of his right to remain silent and to the assis- tance of counsel, but it is also the obligation of the prose- cution to affirmatively establish compliance by the investi- gating officer with said obligation. Absent such affirmative showing, the confession made by a person under custody subject of an investigation, cannot be admitted in evidence. (People vs. Duhan, 142 SCRA 100 (28 May 1986; People vs. Valarma, 11 May 1986) It follows therefore, that the prosecution must show that the suspect understood the consequences of waiving his right to counsel. After informing him of his right t remain silent, he must also be informed that should he choose to speak, anything that he says may be used against him. If he desires to be assisted by counsel but cannot afford to hire one, the State thru the public prosecutor must provide him with one to assist him during custodial investigation. Without the additional (information) the admonition of his right to consult with counsel would ofte? be understood as meaning only that he can consult with # lawyer if he had one or has the fund: in one. 7 warning of the rich unds to obtain one sat night to counsel would be hollow if #CuinicaL LAWYERING AND COUNSELING 431 couched in terms that would convey to the indigent — the person most often the subject of interrogation — the knowledge that he too has a right to have counsel present x k x. (People vs. Quizon, 142 SCRA 596, June 1986; People vs. Tolentino, 145 SCRA 597 (24 Nov. 1986). d) Extrajudicial confession taken perfunc- torily not admissible in evidence — doctrines on strict compliance with specific steps As pointed out by this Court in People vs. Nican- dro, 141 SCRA 289 (1986). When the Constitution requires a person under investigation to be informed of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it should not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty bound to tell the person the rights to which the latter is entitled: he must also explain their effects in practical terms xxx. In other words, the right of a person under interrogation to be informed, implies a correlative obliga- tion on the part of the police investigator to explain, and contemplate an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been “informed” of his rights. Now, since the right to be informed implies comprehension, the degree of explanation required will necessarily vary, depending upon education, intelligence and other relevant personal circum- stances of a person under investigation. Suffice it to say132 LeGaL GouNseLiNe FOR PRACTICING LAWYERS that a simpler and more lucid explanation is needed wh, the subject is unlettered. ne Furthermore, this Court has consistently ruled thar 4 waiver of right to counsel to be valid, must be in writin, and in the presence of counsel. Extrajudicial confessioy, taken without the assistance of counsel is inadmissible i evidence. (People vs. Albofera, 152 SCRA 123 [1987]) Hence, while the right to counsel may be waived such waiver must be done voluntarily, knowingly ang intelligently, and made in the presence of the accused's lawyer. If the records do not show that the accused was assisted by counsel in making his waiver, this defect nulli- fies and renders inadmissible in evidence his confession. (People vs. Nolasco, 163 SCRA 623) In People vs. Hizon, 163 SCRA 760, this court citing the procedure laid down in the case of People vs. Galit, 135 SCRA 465, ruled that the suspect must be informed that he has a right to the assistance of counsel and assured that he will be provided with one for free. While he may choose to waive the right, such waiver must be a knowing and intelligent one and in any case must be made only with the assistance of counsel. Any waiver made without observance of these requirements is null and void. (e) Basic steps in taking extrajudicial co™ fession The following steps should be pursued to make an & tra-judicial confession admissible in evidence, viz: 1. at the time of the arrest, the arresting officer 5M inform the person arrested of the reason for his arrest; 2. he must be shown the warrant of arrest. If anysCunicaL LAWYERING AND COUNSELING 133 3, he shall be informed of his constitutional right to remain silent and to counsel; 4. he must be informed that any statement that he might make could be used against him; 5. the person arrested shall have the right and be given sufficient opportunity to communicate with his lawyer of his own choice, a relative, or anyone he chooses by the most expedient means, by telephone if possible, or by letter or messenger; 6. if such person arrested cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer; 7. the extrajudicial confession shall then be reduced to writing and signed by the person arrested, detained or under custodial investigation in the presence of his own counsel or one provided by the investigating officer; 8. in case the person arrested, detained or under cus- todial investigation has no counsel or in the absence of one provided by the investigating officer, no custodial investi- gation shall be conducted and the suspected person can only be detained in accordance with Article 125 of the Revised Penal Code; 9. should the person arrested, detained or under cus- todial investigation waive his right to counsel, such waiver which is in writing, shall not be valid unless made with the assistance of counsel; 10. should the person arrested, detained or under custodial investigation choose to sign the extrajudicial confession upon a valid waiver after its contents have been explained to him and understood by him in the language of his own tongue, he may sign the same in the presence of134 LEGAL CouNsELinG FOR PRACTICING Lawyers any of his parents, elder brothers, and sisters, his SPOUse, the municipal mayor, the municipal judge, district supery;, sor, or priest or minister of the gospel as chosen by hi : otherwise, such extrajudicial confession shall be Madmiss. ble as evidence in any proceeding; 11. any waiver by a person arrested or detaineg un. der the provisions of Art. 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise, the waiver shall be null and void and of no effect (Rep. Act No. 7438); and 12. after the person arrested or detained or under custodial investigation has signed the extrajudicial confes- sion in the presence of his counsel or upon a valid waiver, the same shall be attested and signed by the investigating officer and any of the parents, or elder brother or sister, or his spouse or municipal mayor, municipal judge, district supervisor or priest or minister of the gospel chosen by him; By way of reference and basis of compliance with the afore-mentioned requirements, Article II, Section 12 of the 1987 Constitution provides: @) Any person under investigation for 4 _an offense shall have the right to be i ight to remain silent and to have compete XXXXCUINIcAL LAWYERING AND COUNSELING 135 (3) Any confession or admission obtained in viola- tion of this x x x shall be inadmissible in evidence against him.” (f) Evidentiary value of police report, au- topsy report, medical report, etc. Of immeasurable efficacy, are police reports of police officers who have conducted an on the spot investigation of the scene of the incident, autopsy reports and medical reports of medico-legal experts who have examined the type of wounds, cause of death and trajectory of bullet wounds, from the body of the victim of a crime. In criminal actions for reckless imprudence resulting in homicide or physical injuries, damage to property thru reckless impru- dence, as well as tort actions or actions arising from quasi- delict under Art. 2176 of the Civil Code, police report has a superior probative value and weight. It likewise bolsters one’s claim covered by a comprehensive insurance policy or claim for third party liability against the insurance com- pany or third persons in auto collisions, although some insurance firms simply require the execution of an affidavit of the vehicle owner or driver to support his money claims. In every inquest proceeding conducted by inquest Prosecutors especially in Metro Manila, police investigation report is a must. In fact, Inquest Prosecutors make police investigation reports and affidavits or sworn statements of complaining witnesses the sole basis of their inquest proceedings usually conducted in various police precincts. And these are usually embodied in their written referral reports and endorsements to the Office of the City Prosecu- tor within whose territorial jurisdiction the crime charged has been committed that will support the filing of a crimi- nal indictment in court.WYERS 136 Lear COUNSELING FOR PRACTICING La yn the other hand, or medical certig. i amining physician, ; cate prepared and issued by an ©x . » is matenal piece of documentary evidence of high probative value, which is indispensable for the filing: of a charge for murder, homicide, parricide, physical injuries, rape, seduc. - son in authority or his agen tion, assault against a pers 0 _ ‘ traffic accident cases, forcible abduction and abortion. When testified to by the issuing physician or medica} specialist in court, such medical certificates and autopsy reports carry a high evidentiary value that are usually followed by a judgment of conviction. An inquest Prosecutor may refuse to entertain a crimi- nal complaint for a charge of physical injuries or any crime against persons for lack of a medical certificate. A medical certificate or a laboratory finding is also necessary to determine whether the respondent in a vehicular case was driving under the influence of liquor or prohibited drug. A medical finding as a result of a laboratory examination of an expert, is pivotal in a prosecution for rape where the offended party was rendered unconscious by the use of a prohibited drug or any substance that impairs the mental faculties. Even charges of negligence or reckless impru- dence against attending physicians, surgeons and nurses, may not prosper without a medical report containing findings or traces of poisonous substances that the doctor may have administered on the patient, or the discovery of surgical instruments recovered inside the body of a patient after the surgical operation, A medical report 0emer Whether it 1S Stilt thee" Cunicat LawyeRING anp Counsetine 137 which part of th wounds, fractu even the relati © body of the deceased had sustained fatal res of the bones, the weapons used and 5 y ive Position of the accused in relation to the leceased at the time the wounds were inflicted. This is especially true in case the deceased was buried without a timely autopsy examination conducted by a medico-legal officer or in case of conflicting versions of expert witnesses rendering the evidence as to the cause of death tenuous. (17) Procedure in qualifying an expert witness in case the adverse counsel would not admit the competency of the examining physician to testify as an expert witness Prosecutor: (Manifestation) Your Honor please, in view of the refusal of accused’s counsel to admit the com- petency of the doctor who issued the autopsy report, may we be allowed to put him on the witness stand for the purpose of qualifying him as a medico-legal expert? Court: Proceed. Prosecutor: Doctor X, is this your first time to appear and testify in court? Doctor X: No Sir, this is my seventh time to appear and testify in court as a medico-legal expert in response to a court subpoena. Prosecutor: Do you know a certain deceased person by the name of Arsenio Pacete?138 LeGAL COUNSELING FOR PractICING LAWYERS Doctor X: Yes sir, I was the one who conducted 4, examination of the cadaver of the late Arsenio Pacer, inside the morgue of St. Paul’s Hospital, Iloilo City, on December 21, 2014. Prosecutor: And did you issue an autopsy report after examining the cadaver of the deceased Arsenio Pacete? Doctor X: Yes sir. Prosecutor: I show to you this document, titled REPORT OF AUTOPSY EXAMINATION, which I request to be marked as Exhibit “A” for the prosecution, will you take a look over it and tell the court if that is the same autopsy report that you issued after examining the dead body of Arsenio Pacete? Doctor X: Yes sir, I was the one who prepared and accomplished that autopsy report. Prosecutor: Dr. X, at the bottom of this autopsy re- port Exhibit A, there appears a signature above the type- written name Doctor X, will you tell the court if that is your signature? Doctor X: It is my sinature Sir. Prosecutor: I request that the signature above the typewritten name Doctor X, be encircled and marked a Exhibit A-1. Prosecutor: Doctor X, in your autopsy report there are findings written on the middle portion of this repo" but I will defer Propounding questions on them, until have qualified you to be competent to testify as a medic legal expert. D. g ‘cal studies? Octor, where did you take your mediCUNICAL LawyeRING AND COUNSELING 139 Doctor X: I took and finished i my medical course at the UP College of Medicine, Diliman, Quezon City. Prosecutor: E What year was that when you finished your medical studies at the University of the Philippines? Doctor X: 1997. Prosecutor: After graduating from U.P. College of Medicine, did you go to practice at once? I finished my medical studies at U.P. in Doctor X: No sir, after graduation, I still underwent internship training at the Philippine General Hospital, for one year, after which I was assigned to do field work in the rural areas of Tondo, Manila. Then in the following year I took the government examination for medical practitioners and passed the board exams in September, 1999. Prosecutor: In what hospital are you assigned now, or are you a government physician? Doctor X: No Sir, I am a private practitioner, but I used to treat patients in different hospitals whenever my services are hired by prospective patients. Prosecutor: Doctor X, during your medical studies at U.P. were you taught about the different kinds of wounds that are inflicted on the human body? Will you tell us if what are these wounds that may be inflicted on the human body and will you describe each one of them? Doctor X: They are stab wound which may be caused by a bolo or balisong; a punctured wound which may be caused by a sharp pointed object like an ice-pick, lacerated wound which may be caused by a hard blow with the use of a blunt instrument or object like a piece of wood, an iron bar or a hammer; bullet or gunshot wound which isve 140 Lecat CouNseLins FOR PracticinG LAWYERS an incised wound that j, irearm; if a. Oe ent like a bolo or g caused by a slug ©! ? aoe S y a sharp instrum commonly caused b knife. Prosecutor: Will you distinguish a bullet wound from a lacerated wound or stab wound, or incised or punctured wound? Doctor X: In the case of a bullet wound, the point of entrance is smaller or almost closed than its point of exit, and sometimes some traces of nitrates can be detected from the point of entrance if the explosion occurs close to the human body. Whereas, a lacerated wound has an irregular shaped edges, while a stab wound has straight edges like one caused by a sharp instrument as bolo or balisong, while a punctured wound has closed point of entrance usually caused by an ice-pick. On the other hand, an incised wound has clean-cut edges usually caused by a sharp instrument like a knife. Prosecutor: Doctor during your medical studies at U.P. have you been assigned in a laboratory where you were taught how to open up a human body or cadaver of a dead person? Doctor X: Yes sir, we were taught how to open up@ dead human body or cadaver, and even disembowel the intestines of a cadaver in cases where the wound has passed thru or caused a cut or internal wound of the aEESUDES, ee lungs, kidneys or any and every inter nal organ of the human cadav. i red 4 eek er which has suffe Prosecutor: Doctor X, during your laboratory studies at U.P. how many di ead bodies puma? person have you onened un and § or cadavers of a me