Tuesday, February 25, 2003

(work in progress)

In one of his engaging torts and damages classes, aviation lawyer, Jose Claro Tesoro once remarked that the only time that he will be handicapped to work is when he becomes insane. A lawyer can be blind, deaf, mute, and dumb, but so long as he can think, he can work. Lawyering is a thinking man's profession.

Thinking precedes any lawyerly action for any work brought to his desk. Time, effort and resources will only be put to waste if action precedes thinking. Errors abound in unplanned actions. Thus, thinking occupies ninety percent (90%) of the lawyer's time. The rest are spent reading, writing and speaking -- activities that can be delegated to somebody else after content and strategy have been developed.

Lawyerly thinking requires more than a mastery of the law. Even if one has mastered the Rules of Civil Procedure, it doesn't necessarily mean he can win a case. Mastery of the rules of chess is not mastery of the game of chess. The study of the law teaches the lawyer how to file and litigate a case. But it doesn't teach him how to win. How does one therefore become a master of the game of law?

To study litigation beyond the rules but in respect of strategy and technique is the beginning of lawyerly success. Sadly, there is no textbook for strategy available for today's lawyer. There are specific treatises on cross-examination, legal writing, and argumentation, but these only address particular tools of the profession. None provides global insights into lawyerly advocacy.

If war is a metaphor for conflict, then Sun Tzu's "Art of War" provides the best insights on strategy for any conflict, be it a game or profession. As a military text, Sun Tzu's "Art of War" provides a paradigm for warfare that has not been overthrown in its 2.400 years of existence. When read in the context of legal conflict, "Art of War" is a gold mine of ideas, which can be readily applied. Let us therefore read "Art of War" and relate its context to the lawyer and hopefully elevate our standards in the game and profession of litigation.

17. All warfare is based on deception."

Litigation is warfare. When two people sue each other, they don't sue to make love. They sue to defend their interest and destroy the interest of the other. The classic situation in any litigation is that of one party complaining and the other responding to the complaint. The judge is there to see if the complaint is valid and if the response is deficient to determine which among the parties should pay. It is a battle of wits.Words are the bullets.

If the goal is to win the war, truth should be thrown out of the window. Deception is the strategy: Deception within the bounds of the law. The law prohibits false statements in court. But the law doesn't prohibit incomplete statements. The law allows selective emphasis. The law allows silence. If a lawyer were to win a case, he should emphasize his strenghts and be silent on his weaknesses. These are all elements of persuasion, essentially deceptive, but within the bounds of the law. The truth is for the court to decide.Thus, the master of deception is the master of litigation.

"Waging War

3. Victory is the main object of war. If this is long delayed, weapons are blunted and morale depressed. When troops attack cities, their strenghts will be exhausted.

4.When the army engages in protracted campaigns, the resources of the state will not suffice.

5. When your weapons are dulled and ardour dumped, your strenght exhausted and treasure spent, neighboring rulers will take advantage of your distress to act. And even though you have consellors, none will be able to lay good plans for the future.

6. Thus, while we have heard of blundering swiftness in war, we have not yet seen a clever operation that was prolonged.

There is no point in engaging in a long protracted litigation. Litigation is expensive. It costs a lot of time and money. The Rules of Procedure favor delay. Thus, when commencing a suit, the lawyer should design it to achieve its objectives in the shortest possible time and with the least expense to the client. Most Filipino lawyers are not conscious about this principle and clients can hardly be expected to know better. Filipino lawyers think cases are cash cows. Thus. cases move in circles and take long to finish. As a result, litigants lose a lot of time and money and eventually lose trust in the system.

The easiest way out of a case is to compromise. A bad compromise at the beginnning of the case is often better than a winning decision 10 years later. Thus, a good lawyer will design his case to achieve the best compromise at the earliest possible time.

(More to follow)

Sunday, February 23, 2003


I recently watched Changing Lanes, a suspense thriller starring Samuel Jackson and Ben Affleck. The film's premise revolves around one morning when lawyer Ben Affleck meets a traffic accident with beleagured litigant Samuel Jackson. As a result of the incident, Asfleck inadvertently leaves a very important document with Samuel whom Affleck leaves to be in ocurt on time. Of course, Samuel was too late for his hearing. As a result, the judge hearing his family case allows his ex-wife and kids to move to another state where parental visits are impossible.The two play a little war as Affleck tries to recover the document with all his lawyerly wit and connections and Samuel tries to get even and make Affleck's life misearble by being a little murderous like removing the screws in the front tires of Affleck's BMW.

The film attempts to bring the premise to the ethical level when it is later revealed that the document appears to have been signed by a rich old man on his death bed under the influence of Affleck. The document also happens to turn over the control of multi-million dollar foundation to Affleck's bosses. So Affleck's partners suggest that the document be re-printed and the old man's signature for another document be used instead. Affleck bulks. The moral dilemna is now whether Mr. Affleck should present a forged document in court as he appears to be losing his little war with Samuel. Mr. Senior Partner gives him a little speech that it is okay to do it because in the end he does more good than bad. Of course, Affleck decides too late as the Senior Partner submits the forged document anyway without Affleck knowing it.

After watching this film, I was disturbed by this message: It is okay to do bad as long as in the end you do more good. All of a sudden, ethics has become a question of quantity; plus or minus, credit or debit, or withdrawal or deposit. This proposition, of course,
presents a world view that morality is a numbers game and ignores that fact that morality is always grounded on higher values. Nobody can play math with faith, love and hope. How would you like to tell your wife that since you only cheated her for one year and you've been faithful for four years, ultimately you love her more? Isn't the question really whether you love her or you don't? Are you good or are you evil? If you choose good, you don't choose anything else. There is a fundamental option to do good.

Changing Lanes is a well-made film. Unfortunately, people who are longing for spiritual nourishment will get a little doze of poison here.