When discussing the outline of the witness' testimony, the lawyer does not

give the witness a copy, however. He recognizes the danger that, during
cross-exam, the witness may be required to produce the outline if he
unwittingly mentions it. f he does produce the outline, it will give the
impression that he was coached.
!he lawyer merely discusses with the witness the facts he wishes to
extract from the testimony. "or instance, if the witness is an eye-witness,
the lawyer may tell him, #What will be as$ing you questions about will
focus mainly on what you saw happened at the time of the event, and my
questions may require some detailed answers. may also as$ you why you
were there at the time, where you were located while the events were
happening, and other questions which will provide the context of your
testimony.#
!hen - and this is $ey - he give the witness the topical points of the
testimony, explaining to him its general order, where the probable beginning,
middle and end will be, but always assuring him not to worry about the
particular order as it is not written in stone and may, therefore, change. !he
witness must $now the topics and the facts that will be ta$en up within these
topics.
%ecause of this discussion, he will instinctively recognize these topics as
his direct examination goes along.
t is also important that beforehand, the lawyer must have already
discussed with the witness the role that his testimony will play in the case.
"or instance, the lawyer may say #&ou are an eyewitness to the robbery.
&our testimony is therefore very important because it is you who can identify
who the robbers were. &ou were there while the robbery was going on, so
you can describe to the 'udge what the robbers did during and after the
robbery, what was ta$en from you, and your mental state while the robbery
was going on.# !his will ma$e the witness aware of the significance of the
topics that the lawyer will as$ him during the examination.
!he lawyer does not rehearse the witness by going through a written ( )
* with him. !his will 'ust ma$e the witness nervous+ he $nows that when he
ta$es the stand, only his lawyer will have a copy of the #script# while he will
only have his memory to rely on. He may thin$ he may screw up, forget
something, or answer a question incorrectly.
%ut, perhaps 'ust to give him a feel of how the questions will be phrased,
the lawyer can as$ him a couple of sample questions to answer during the
discussion. %ut, he has to be reminded that the words of the questions are
not important+ the lawyer may as$ it in a different way, especially when
there is an ob'ection from the other lawyer. What is important is he
understands the question and he should answer as he understood it, ta$ing
into account the topics that the lawyer discussed with him earlier.
Witnesses must be prepared for direct examination. #,reparing witnesses#
does not mean coaching him on his testimony. -n the contrary, the witness
should always be instructed to tell the truth. preparing means doing our
duty as lawyers to present the witness/ testimony in the best and most
persuasive light possible.
We suggest that, even before the initial conference with the witness, the
lawyer should've already as$ed him to write down everything that he $nows
about the case. n other words, he should write down his story. 0ure, the
lawyer himself can do this by ta$ing notes during the interview, but there
are numerous benefits in as$ing the witness to do this himself+
"irst, the witness $nows the facts that he will testify to more than the
lawyer does or ever will. *s$ing the witness to write it down minimizes
leaving out important facts or events. -f course, before the witness starts to
write, the lawyer should have already focused the witness only on those
events that he expects to question the witness during his testimony.
otherwise the witness' written out story will be formless and fuzzy that it will
not serve its purpose.
0econd, the witness becomes better prepared and more confident. *fter
writing down his story, he $nows that he has full grasp of the facts, and that
$nowledge will ease the apprehension when he ta$es the stand.
!hird, the witness/ recollection of the events will be better. We've all had
this experience+ unli$e verbally narrating an event - when we sometimes
blurt out words without meaning them - writing ma$es us thin$ harder of the
event. 1hances are that the witness wrote and re-wrote his #essay# before
he gives it to the lawyer, chec$ing and re-chec$ing his recollection of the
events before he commits them on paper. %y doing so, he 'ogs his memory
more.
*nd fourth, it becomes easy for the lawyer to prepare his outline of the
witness' testimony.
!hat same confidence of the witness will ultimately infect his lawyer,
whose own confidence will come from $nowing that his witness is well-
prepared.
#-b'ection, leading2# !his is perhaps the most oft-repeated ob'ection of all
during direct examination. While most lawyers 3and 'udges4 gauge if a
question leads or not by the standard #if it is answerable by yes or no, then
it is leading,# the rule-boo$ definition of a leading question, however, is that
it is a question which suggests the answer that the questioner desires.

-f course, one way of avoiding this ob'ection is not to as$ a leading question
at all. However, this may not be practical. in fact, it is not even advisable.
!here will always be occasions when you need to ma$e your questions
pointed and unequivocal to get maximum effect, or even 'ust to avoid
confusing your witness. !his is why noticed that seasoned trial lawyers lead
one time or another.
"or instance, to emphasize a scene, you may have to use short and pointed
questions to ma$e it more vivid, such as when you want the witness to
describe the scene of a robbery he witnessed while it was in progress. &ou'd
want to convey fast-paced, heart-pounding action. -pen-ended questions
with long-winded answers simply will not do the tric$. on the contrary, they'll
'ust lose the impact that you'd have wanted. &ou want short questions. and
you want equally short and crisp answers, moving the testimony forward in a
fast cadence.
&ou also may want to #lead# to dispel any probable #unresponsive# answers -
those answers that you do not really intend - from your witness. otherwise,
you may have to repeat your question to get what you want, and this 'ust
distracts the 'udge from the testimony.
1onsider the question #describe the door when you arrived at the
apartment#. While you may have simply wanted your witness to say that the
door was already open when he arrived, he may get confused and start
describing the door as #wooden, painted white, with brass $nobs.#
-ne way of beating this ob'ection is to watch your tone+ be conscious of it. t
cannot be described here accurately, but your tone of voice when you as$
the question alerts the 'udge and other lawyer of the nature of the question.
"or instance, once as$ed the witness on direct, #what were you doing at
that house5# !he witness answered, #we were there to fetch our friend on
our way to the party.# !hen followed up, in a matter-of-fact tone of voice,
#so, you went by your friend's house first before you went to the party5# !his
last question could be ob'ected to as leading, but because of the tone of the
voice, it slipped by without the other lawyer noticing it.
6y next question was, #*t what point did you ta$e your first drin$ of beer
that night5# *nswer+ #when we were already at the party.# *nd then as$ed,
again in a matter-of-fact tone, #so, you were not yet drun$ before you went
to the party5# *gain, this last question could have been ob'ected to as
leading were it for the tone of voice. 6a$e the tone sound li$e you are 'ust
following up the answer with a question.
*nother way of overcoming this ob'ection is to give the witness choices, so
that it will not appear that you are suggesting the answer to him.
f you want the witness to say that he was still sober when he arrived at the
party, and it was only after that he got drun$, you'd have to go a round-
about way of extracting these answers 3unless of course, you and him have
already memorized a script along these lines4+
Q: Upon arriving at the party, describe your state of mind. or,
Q: How were you feeling when you arrived at the party?
With these $inds of questions, who $nows how the witness will answer5
!he better way is to suggest it to the witness without appearing to do so.
1onsider+
Q: When you arrived at the party, were you drunk or still sober? or,
Q: When you left the party, were you still able to walk, or did somebody
have to carry you out?
n time, with enough practice, you would not even notice anymore that your
direct examinations did not draw a single #ob'ection, &our Honor, leading#.
7f you cannot trust the messenger, why trust the message58 What
this means for us trial lawyers is for us to give equal importance to both the
story and the story-teller. !he credibility of the testimony must match the
credibility of the witness.

How do we do this5 We 7humanize8 the witness, give his bac$ground,
his position in the company he wor$s for, anything that will ma$e him
appear to the 'udge as an intelligent, credible, and unimpressionable person.

"or instance, consider this testimony+

( + How did you come to $now the accused5
* + He was an employee of our company.
( + What is the name of this company5
* + t/s 9&: 1orporation.
( + What is your position in 9&: 1orporation5
* + am the ;ice ,resident for 1redit and 1ollection.

Here, the lawyer is telling the udge that this witness occupies an
e!ecutive position in the company, that this person is intelligent and will not
likely take an oath to tell the truth lightly.

( + What about the accused5
* + He was our 1redit and 1ollection 6anager.
( + <uring his stay in 9&: 1orporation, to whom was the accused
reporting to as 1redit and 1ollection 6anager5
* + He was reporting to me.

"he udge can now be assured that this witness has personal
knowledge of the accused, the latter being a subordinate of the former.

( + *re there other managers under your supervision5
* + &es, 0ir.
( + How many, aside from the accused5
* + "ive, 0ir.
( + *nd, on the average, how many people do these managers
supervise, if any5
* + -n the average, each of these managers has three people under
them.
( + <o you supervise these people under your managers5
* + =ust indirectly, 0ir.
( + What do you mean, indirectly5
* + !hey report directly to their managers, but since these
managers report to me, that means have indirect supervision
and also responsibility over them. n fact, if a manager/s position
becomes vacant, these people under the manager will have to
report directly to me.
( + 0o, how many people are under your direct and indirect
supervision5
* + *ll in all, it/s more or less >? people, 0ir, including the managers.

#o, the witness has at least $% people working under him. "hat
speaks well of his integrity, does it not? &t is a more or less leadership
position' generally, one does not reach this position without some measure
of credibility and integrity.


24-Jan-2008
%efore language was invented, psychologists say that humans thin$ in and
relay thoughts by pictures. We simply remember better when we see
pictures and not 'ust hear words. in fact, going further, educators say that
learning about something 3such as remembering a testimony in court4 will
be much faster when the learner 3such as the 'udge4 is made to use more of
his senses during the process, such as sight, smell or touch, rather than 'ust
ma$ing him use his sense of hearing.
Have you watched and listened to a witness during a trial and not seem to
understand the testimony because you cannot #see# the scene being
described5 *side from losing the message, the testimony is also so boring
that you wonder whether there is a rule somewhere that examinations
should as much as possible put the 'udge to sleep.
f you are examining an eye-witness to a vehicular mishap for instance, and
you're prosecuting, you'd want to convey rec$lessness, overspeeding, and
irresponsibility on the road. &ou'll not use questions li$e, #What happened5
3*nswer+ the car hit a pedestrian4. What happened to the pedestrian5
3*nswer+ he fell4. What did you do5 3*nswer+ @othing4. and then, what
happened after that5#
&ou'd want to use questions that picture fast-paced action+ How fast was the
car5 Was it blowing its horn5 <escribe the sound of the horn. What was your
reaction when you heard the horn5 Why did the horn catch your attention5
Was the traffic slow or fast5 0hort, crisp and cadence-li$e questions,
designed to be answered in equally short and crisp responses will be
effective in conveying this scene.
!he more you use words that #picture#, the more the examination becomes
interesting, the more it will become understandble, and more important, the
more it will become memorable to the 'udge. *nd, all these is good for your
case.
he direct examination is when we tell our story, fit those pieces to build our
case, and persuade the 'udge to our side. -ur 'ob therefore, is to ma$e the
direct examination as impactful and memorable as possible, so that the
'udge remembers it come decision time.
*nd one way to ma$e our case memorable is to end the direct examination
properly. that is strongly.
n civil cases for damages for instance, we end the direct examination of the
client by as$ing him to summarize the damage he suffered at the hands of
the defendant. We as$ him how the in'ury has affected the way he lives his
life after the incident happened. !his usually becomes dramatic because it
gives the client the chance to repeat, in brief but emotional words, what he
testified to on direct. !his also ma$es his testimony memorable, not only
because of the drama, but also because of the repitition it affords. =ust
phrase it in a way that you avoid the ob'ection #as$ed and answered.#
n criminal cases, when the client is the accused and he's on the stand, we
usually end the examination by as$ing short questions that call for equally
short but emphatic denial of the charges, or those of the testimonies of the
$ey witnesses for the prosecution. -r, in some instances, an emphasis on
the $ey elements of the defense. n a case for violation of trust receipts law,
for example, where the willingness of the accused to return the goods after
they were not sold is a defense, we as$ed the following questions towards
the end of the accused's testimony+ <id you offer to return the goods that
were listed in the trust receipts5 (es. How did the ban$ react to your offer5
&t refused to accept it. <id the ban$ advise you why they are refusing the
return of the goods5 )o. Where are the goods at present5 "hey are still in
our warehouse. What is their condition at present5 "hey are still in their
original crates since they arrived in the country. 1an you still return them
today5 (es.
Avery story must have an ending. countless movies that are otherwise
excellent were ruined by their mediocre endings that ruined them. Bet's not
ma$e our case suffer the same fate.

he other lawyer's 'ust finished his cross exam of your witness. &ou don't
thin$ there's any need for re-direct questions. Coing over your notes,
however, you realize that there are questions you forgot to as$ in your direct
examination earlier.
-r, you're already mid-way in your re-direct examination when you realize
these #forgotten# areas of the direct exam. f you as$ them, you can be
reasonably sure that the opposing counsel will ob'ect that that the re-direct
examination questions were improper because they're beyond what's as$ed
during the cross exam. *nd, you feel he'll be sustained because the rules
say that on re-direct, you're not allowed to as$ questions on sub'ects that
were not touched during the cross.
What do you do5 &our questions are really important and this witness is the
only one who can answer them because it's only she who personally $nows
the facts you'll be as$ing for in your questions. Decalling her to the stand to
answer your additional questions will be too cumbersome because then,
you'd need the court's permission to do so. *lso, telling the court that your
ground to recall the witness was because you forgot to as$ questions the
first time around 'ust doesn't ma$e you feel comfortable.
0o what to do5
&ou as$ the court for permission to as$ questions not touched during the
cross. !hese are called additional direct examination questions. !he court
usually allows them because the other party's still allowed to conduct cross-
examination on these additional questions.
*s part of their power to control the conduct of trial, 'udges have much
leeway in allowing or disallowing questions by counsels. -bviously, the rule-
ma$ers can't provide for every eventuality during trials, and the higher
courts will generally not reverse the 'udge except for grave abuse of
discretion.
*s long as you don't ma$e a big fuss out of it, most requests of this nature
will be granted by 'udges, especially if you admit your mista$e and you
apologize to the court and the other lawyer. 0o, don't worry+ you may
stumble at first but the courtroom is much friendlier in this part of the world
than you would actually thin$.
!he ob'ection #Beading question, &ou Honor# is perhaps the most frequent
ob'ection we either ma$e or hear during trials, supposedly because of fear
that the witness's #&es# or #@o# to this type of question will enter the record
and thus hurt us.
%ut so what5 !estimony may be on record, but this does not mean that the
court will believe it. n fact, the question is, will the court believe a
testimony that was mostly drawn out from the witness by leading
questions5
1onsider the purpose of the rule when it disallows leading questions. t is
disallowed because of the danger that the testimony of the lawyer will be
substituted with that of his witness. the witness's words are reduced to an
echo, the witness mechanically saying what the examining lawyer is puttting
into his mouth. We suggest that, analyzing this rule, it is actually an implicit
directive to the court or fact-finder to disbelieve, or at the very least, to be
wary of, the answer of the witness.
What happens if we do not ob'ect to a truly leading question5 t gets into
the record, yes, but will it be believed5 !hat's another story. What happens
if we ob'ect5 !he examining lawyer rephrases his question, the witness
answers the non-leading question, and it becomes more credible, further
burying us.
We suggest that perhaps the rule disallowing a leading question is more the
loo$out of the examining lawyer than of the opposing counsel. t is more
aimed at the examining lawyer+ as$ leading questions at your peril. do not
as$ leading questions so that your direct examination is more credible.
6ost of the witnesses for your case, and their stories, are not rosy and pin$.
n fact, most of the times, they $now of some facts that may hurt your
case.
When preparing your witness, anticipate the cross-examination that's sure
to come. We've had a witness who testified effectively during the direct
examination, but who loo$ed stupid during the cross because the cross-
examiner made him admit that he was gay, that he was sleeping with the
defendant. ,lus, he was made to deny that the reason he is now suing the
defendant was because the defendant bro$e up with him earlier.
%y the way, we were not informed by the witness of that fact. and, of
course, that too$ us completely by surprise.
!he best way is to tell the witness that the better the grasp you have of all
the facts - even those that he thin$s may hurt the case - the better
prepared both of you will be. 0o, what does he thin$ are the areas of his
testimony that will be attac$ed by the cross-examiner5 How does he
suggest both of you should deal with these areas5
f there are such potential harmful facts, and these, more probable than
not, are also $nown to the adversary, most authors advise that they are
better let out of the bag during the direct examination rather than on cross.
!he theory is that the harmful testimony will not have as much impact if
voluntarily revealed on direct examination than when the witness is forced
to admit it on cross-examination.
"or instance, it may happen that there is an apparent conflict between the
statement that your witness gave to the police investigators and the
affidavit that you submit to the public prosecutor during preliminary
investigation. !hese can be best explained during the direct. 0ome of us do
the opposite+ we overloo$ these conflicting statements, act as if they do not
exist and hope that the other side will not notice. Worse, we leave the
witness on his own by not discussing with him beforehand how to deal with
this conlict during cross-examination. t's li$e feeding him to the lions.
When cross-examination comes, we watch helplessly while the other side
tears our witness apart.
Bet's do our 'ob.
Can a Court grant a PPO even if the applicant-victim is out of the country?
An opponent of ours thinks not. According to him, the PPO will be useless since its
only enforceable within Philippine territory! in fact, as ridiculous as it sounds, he wants
our case dismissed because he says that at present, our client is already out of the
country, and apparently no longer needs the PPO.
"e disagree, of course.
#he issuance of a PPO is a result of the courts e$ercise of its %urisdiction. After the
court ac&uires %urisdiction over the case, its decision on the merits of the application for
the PPO is but %ust an e$ercise of that %urisdiction.
't doesnt matter that the applicant is already out of the country. #he court should not
concern itself with that! otherwise, courts will be bogged down with trying to know the
whereabouts of a party every time. 'n fact, thats why they have lawyers, dont they?
'n other words, we were trying to e$plain to this opponent of ours that once a court
ac&uires %urisdiction over the case and over the persons of the parties, the Court is not
ousted of it %ust because one of the parties departed from the Philippines (in fact, in
civil cases, even if a party dies, the case will have to continue to its conclusion.).
And there is no merit in trying to convince the court that because the applicant is no
longer in country, it should be concerned about whether the PPO it issues will or will
not be enforced. #hats the applicants call! the courts mandate is to settle
controversies. 'f the beneficiary of the ruling does not want to avail of the fruits of his or
her suit, then its up to him or her! but the court should still do its duty and decide the
case on its merits.
17-Aug-2009