Hanging the Paradigm of Fairness
Rev. Fr. Ranhilio Aquino
Trials were fair, it has been thought for a long time now, when each party to a dispute before the court was left free to adduce the evidence and to argue the law most favorable to his case. Given that fundamental persuasion then the judge had to be some rather passive, neutral umpire who resolved the dispute merely on the basis of what was presented to him. So if, through insouciance or ineptitude of counsel, a party raised the wrong issue, or failed to produce in court the document or the testimony that should have been brought before it, the judge could not, by the rules of the game, ask that the gaps be filled in because that would be, once more by this same persuasion, “unfair”. This, put simplistically, is commonly known as the adversarial procedure in litigation — and it left a prominent common law jurist wondering aloud how a judge might reasonably be expected to arrive at the truth under circumstances that allowed both parties to stand before the bar, equally prepared to lie to the teeth! There is also something counter-intuitive about the adversarial system. Let us assume that you are a person for whom the difference between truth and falsehood is significant. (It is not, for some!) When someone excitedly tells you that the moon turned green at midnight, the night before, average intelligence and a minimum of intellectual curiosity would ask you to demand proof: that could come in the form of others who saw the strange spectacle, or of colored photographs, or of video recordings on one’s smart phone — the ways of proving are myriad. And if you were further told: “There are pictures!”, then once more, fundamental intelligence would make you demand: “Show me”.
Rev. Fr. Ranhilio Aquino
Trials were fair, it has been thought for a long time now, when each party to a dispute before the court was left free to adduce the evidence and to argue the law most favorable to his case. Given that fundamental persuasion then the judge had to be some rather passive, neutral umpire who resolved the dispute merely on the basis of what was presented to him. So if, through insouciance or ineptitude of counsel, a party raised the wrong issue, or failed to produce in court the document or the testimony that should have been brought before it, the judge could not, by the rules of the game, ask that the gaps be filled in because that would be, once more by this same persuasion, “unfair”. This, put simplistically, is commonly known as the adversarial procedure in litigation — and it left a prominent common law jurist wondering aloud how a judge might reasonably be expected to arrive at the truth under circumstances that allowed both parties to stand before the bar, equally prepared to lie to the teeth! There is also something counter-intuitive about the adversarial system. Let us assume that you are a person for whom the difference between truth and falsehood is significant. (It is not, for some!) When someone excitedly tells you that the moon turned green at midnight, the night before, average intelligence and a minimum of intellectual curiosity would ask you to demand proof: that could come in the form of others who saw the strange spectacle, or of colored photographs, or of video recordings on one’s smart phone — the ways of proving are myriad. And if you were further told: “There are pictures!”, then once more, fundamental intelligence would make you demand: “Show me”.
But the adversarial system departs from fundamental intelligence in these respects. If, in a tort case where the plaintiff, a cyclist, who was side-swiped by a drunker driver, claims damages, a picture taken of the accident scene that shows the car to be on the wrong lane and its speedometer stuck at 120 kph would be eminently relevant in establishing what really happened. But if, through carelessness or inadvertence, the plaintiff’s counsel failed to produce the picture in court, to have it marked, to have it identified and testified on, then it would not be “fair” for the judge, according to the oddity of the adversarial system, to demand the production of the picture, even if it would bring him closer to the truth
Last Saturday, the Graduate School of Law of San Beda College in partnership with the Legal Education Board, invited law deans all over the country to dialogue with Justice Roberto Abad who has been the moving spirit and the guiding mind behind the really thorough overhaul of the rules of civil procedure. It is the same Justice Abad who introduced the rule on the judicial affidavit. Dr. Pacifico Agabin, a constitutionalist, spoke on the context, the spirit and the intent of the proposed revisions. Justice Hilarion Aquino, LEB Chair, commented. Contributing their reactions were law deans retired Justice Austria Martinez, Emerson Aquende, Joan Largo, Perry Pe, Sedrey Candelaria and other law deans present. It became evident that the challenge ahead lies in making lawyers and judges see that fairness does not necessarily entail the adversarial system.
One of the most innovative and revolutionary developments is the face-to-face trial — which is really less a trial than it is a confrontation. The furniture of the courts and the configuration of the courtroom will change. The dais will go, and so will the witness stand or box. In place of all that the witnesses and their counsel will face each other at a large table presided over by the judge. Witnesses will be heard in the order of the issues to be discussed. But the procedure has been hued to Filipino modes of dispute-resolution: “harap-harapan” — it is believed that this way, there is less temptation to prevaricate! When a witness makes a declaration, another witness may, with leave of court, contradict it. It is the judge who asks the questions, with opportunity for cross-examination by the counsel of the adverse party. The days of the strutting legal eagles who struck awe and fear in many a witness by stentorian tone, glowering looks and a menacing countenance will soon, thankfully, be gone. The judge asks the key questions. In some cases, immediately after listening to the witnesses, having read the judicial affidavits and the documents submitted, the judge may even render an oral verdict!
Does this not deny parties due process? No, because what process is due is what is defined by the rules, as long as all parties are given the opportunity to be heard, and the evidence they adduce in their behalf goes into the judgment rendered. More than learning new rules, what lawyers, judges and litigants alike need is a new attitude, a new disposition. Efficient advocacy will no longer consist in outsmarting the lawyer on the other end of the table through trickery, surprise, and shrewd tactic but in the studious and fastidious preparation of judicial affidavits, terms of reference and documents. Truth, it is expected, will become a more valuable commodity. Less showmanship, to be sure, but greater fairness, we hope!
Last Saturday, the Graduate School of Law of San Beda College in partnership with the Legal Education Board, invited law deans all over the country to dialogue with Justice Roberto Abad who has been the moving spirit and the guiding mind behind the really thorough overhaul of the rules of civil procedure. It is the same Justice Abad who introduced the rule on the judicial affidavit. Dr. Pacifico Agabin, a constitutionalist, spoke on the context, the spirit and the intent of the proposed revisions. Justice Hilarion Aquino, LEB Chair, commented. Contributing their reactions were law deans retired Justice Austria Martinez, Emerson Aquende, Joan Largo, Perry Pe, Sedrey Candelaria and other law deans present. It became evident that the challenge ahead lies in making lawyers and judges see that fairness does not necessarily entail the adversarial system.
One of the most innovative and revolutionary developments is the face-to-face trial — which is really less a trial than it is a confrontation. The furniture of the courts and the configuration of the courtroom will change. The dais will go, and so will the witness stand or box. In place of all that the witnesses and their counsel will face each other at a large table presided over by the judge. Witnesses will be heard in the order of the issues to be discussed. But the procedure has been hued to Filipino modes of dispute-resolution: “harap-harapan” — it is believed that this way, there is less temptation to prevaricate! When a witness makes a declaration, another witness may, with leave of court, contradict it. It is the judge who asks the questions, with opportunity for cross-examination by the counsel of the adverse party. The days of the strutting legal eagles who struck awe and fear in many a witness by stentorian tone, glowering looks and a menacing countenance will soon, thankfully, be gone. The judge asks the key questions. In some cases, immediately after listening to the witnesses, having read the judicial affidavits and the documents submitted, the judge may even render an oral verdict!
Does this not deny parties due process? No, because what process is due is what is defined by the rules, as long as all parties are given the opportunity to be heard, and the evidence they adduce in their behalf goes into the judgment rendered. More than learning new rules, what lawyers, judges and litigants alike need is a new attitude, a new disposition. Efficient advocacy will no longer consist in outsmarting the lawyer on the other end of the table through trickery, surprise, and shrewd tactic but in the studious and fastidious preparation of judicial affidavits, terms of reference and documents. Truth, it is expected, will become a more valuable commodity. Less showmanship, to be sure, but greater fairness, we hope!