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.