Saturday, April 12, 2003

I may be one of the last few persons in the world to have seen"Chicago" the movie. Nonetheless, I take note of it here because it has given me a sort of rallying cry for my various court room predicaments.

Lawyer Billy Flyn, sings,

"Give 'em the old razzle dazzle
Razzle Dazzle 'em
Give 'em an act with lots of flash in it
And the reaction will be passionate
Give 'em the old hocus pocus
Bead and feather 'em
How can they see with sequins in their eyes?"

I have always maintained a court room emphasis on form and method. Substance -- it's either you have it or you don't. It takes care of itself. But form and method separates the mediocre from the great trial lawyers.The great trial lawyers have clear and entertaining ways of presenting their cases. They don't bore their audience. They work on the premise that it is all show business. They take care of the little details. Their words are precise. Their hand movements are coordinated. And because they are natural actors, they don't look like they're acting. That is why they win. So I am going to indulge a little here and post the lyrics of "Razzle Dazzle" just so I won't forget. I am a lawyer and I am in show business.


Lyrics of RAZZLE DAZZLE
from the Movie "Chicago"


BAILIFF(Spoken)
Mr. Flynn, his honor is here

BILLY(Spoken)
Thank you. Just a moment.
You ready?

ROXIE(Spoken)
Oh Billy, I'm scared.

BILLY(Spoken)
Roxie, you got nothing to worry about.
It's all a circus, kid. A three ring circus.
These trials- the wholeworld- all show business.
But kid, you're working with a star, the biggest!

(Singing)
Give 'em the old razzle dazzle
Razzle Dazzle 'em
Give 'em an act with lots of flash in it
And the reaction will be passionate
Give 'em the old hocus pocus
Bead and feather 'em
How can they see with sequins in their eyes?

What if your hinges all are rusting?
What if, in fact, you're just disgusting?

Razzle dazzle 'em
And they;ll never catch wise!

Give 'em the old

BILLY AND COMPANY
Razzle dazzle 'em
Give 'em a show that's so splendiferous

BILLY
Row after row will crow vociferous

BILLY AND COMPANY
Give 'em the old flim flam flummox
Fool and fracture 'em

BILLY
How can they hear the truth above the roar?

BILLY AND COMPANY
Throw 'em a fake and a finagle
They'll never know you're just a bagel,

BILLY
Razzle dazzle 'em
And they'll beg you for more!

BILLY AND COMPANY
Give 'em the old razzle dazzle
Razzle Dazzle 'em
Back since the days of old Methuselah
Everyone loves the big bambooz-a-ler

Give 'em the old three ring circus
Stun and stagger 'em
When you're in trouble, go into your dance

Though you are stiffer than a girder
They let you get away with murder
Razzle dazzle 'em
And you've got a romance

Give 'em the old
Razzle Dazzle



BILLY
Razzle dazzle 'em
Give 'em an act that's unassailable
They'll wait a year 'till you're available!

BILLY AND COMPANY
Give 'em the old
Double whammy

BILLY
Daze and dizzy'em
Show 'em the first rate sorcerer you are

BILLY AND COMPANY
Long as you keep 'em way off balance
How can they spot you got no talents?

BILLY
Razzle dazzle 'em

COMPANY
Razzle dazzle 'em

BILLY
Razzle dazzle 'em

BILLY AND COMPANY
And they'll make you a star!

Monday, April 07, 2003

ON PREPARATION


Sun Tzu says,

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

In the film Philadelphia, the lawyer played by Denzel Washington had a unique way of asking his client to explain to him the case being brought to him for litigation. After a brief description of the problem, he would ask the client to repeat the story to him with a nice tag line, "Okay, now explain your story to me like a were a six year old."

Denzel's character emphasizes the importance of a thorough knowledge of the facts of the case from the point of view of the client. The lawyer should be able to draw out from the client all concepts, stories, emotions, motivations in the client's story in order for the lawyer to understand the complete picture. Otherwise, a missing fact here and there can lead to disaster in the courtroom.

Sun Tzu, however, further states that knowledge of the enemy is just as important as knowing yourself. If you only know yourself and not the enemy, then you will only mean half your battles.

My teacher of Statutory Construction, Jose Jesus Laurel, former SEC Commissioner and Dean of Lyceum School of Law, often taught us that the rules of statutory construction always marched in pairs. His best example is the rule, "Dura Lex Sed Lex" which means, " The law may be hard, but that is the law." The rule emphasizes the need for the strict obedience to the letter of the law. However, the rule has an anti-thesis in the rule which says "Ratio est legis anima; mutata legis ratione mutatur et lexatio" which means the “Reason is the soul of law; when that reason is changed, the law also changed." Thus, every time a lawyer throws me the "Dura Lex…" maxim, I throw him back the "Ratio Legis” edict and always, I know the show is not going to be over just yet. This bit of lawyerly wisdom has always kept me on my toes. For even if I know I have the best argument any lawyer can think of for my case, I know the other side can always throw back an opposing argument that can be equally as strong. It is important to know your arguments. But it is equally important to know the arguments of the other side. Sun Tzu suggests that research should always be done on both sides of the conflict to ensure complete victory.

Atty. J. J Laurel’s idea works well for legal arguments. But the law is just one side of the case. It is likewise important to know how the other side will present its case to the facts in issue. The importance of knowing the side of the enemy has been underscored by Sun Tzu’s treatment of a complete chapter on spies in the Art of War. This leads us to the point that when the facts of the case are critical to a case, it may well be of great value to hire detectives to help do research on the facts as viewed from the other side.

The matter of hiring detectives is often thought of in marital cases where evidence of adultery, for example, are presented in pictures of the respondent going inside a motel with the lover. However, detectives can also be of use in commercial litigation where a missing piece of a puzzle cannot be obtained but through vigorous intelligence work.

As an apprentice in a Makati law firm, I had a chance to handle a case involving a bank, which credited a dollar remittance to a couple in the amount of USD 100,000. Our client was the recipient bank and the crediting bank sued us because it turned out that the remittance was only for USD 1,000. The couple withdrew the amount from our bank and ran away with the money. The only issue was which bank should bear the cost of the mistake. As if to complicate things for our client, it had lost its copy of the wire transfer indicating the amount and the. bank officer handling the account killed himself before the whole thing became a major banking scandal. The partner handling the case thus hired a detective who for days rummaged through trash of the other bank and discovered to our amusement a photocopy of the wire transfer instructions to our bank for USD 100,000. The photocopy was then used as basis for a subpoena to obtain the original from the bank. Our client won the case with the Regional Trial Court and the principal basis of the appeal of the other side was whether the subpoena was issued properly.

Maintaining knowledge of the story and of the evidence of the case is habit that pays well to cultivate. As a young lawyer, I was once asked to file a Motion for the Lifting of a Hold Departure Order against a client accused of Estafa. The client once had his cancer treated in the United States, which necessitated an annual check up. Thus, he needed to leave which can only be allowed with the Court's permission. The judge required that I present a Filipino doctor to testify that the check up should be done abroad. Our client had a difficult time obtaining an appointment with his doctor, so I asked him to answer questions writing. I later converted the response into an affidavit form and asked my client to have the doctor sign it before filing the same with the court before the hearing.

The doctor arrived just before the case was to be called. As everything was reduced to the affidavit, I asked him to prepare for cross-examination, which I surmised would be a breeze considering that he was a doctor about to testify on a medical matter of his expertise. But to my shock, just as the case was called, the doctor said, "We have a problem. It was my son who signed this affidavit."

Thinking as I rose from my seat, I decided not to have the witness identify the affidavit as a basis for the testimony. Instead, I conducted a complete direct examination using only the affidavit as a guide. I thought we were successful in presenting the case. Unfortunately, the cross-examination lingered on the affidavit and then he was asked the question that I was hoping would not be asked. "Did you sign this affidavit?" The doctor had to tell the truth and my motion was denied. It was my most embarrassing day as a lawyer.

Until the present, I keep thinking that if only I had met this doctor even for ten minutes, the disaster could not have happened. I should have interviewed the witness myself. I should have asked the witness if he was the one who signed the affidavit. I should have known a lot of things. Indeed, the very essence of preparation in litigation is knowing the facts and the law from all sides.