Businessworld - OUR JUDICIAL system is predominantly
adversarial. This is why the resolution of disputes through litigation
is inevitably a long, tedious, painstaking and expensive process. Even
then, while various and relatively less expensive alternative modes of
dispute resolution (ADR) are readily available to them, the aggrieved
appear to prefer to litigate and "have their day in court."
American lawyer and ADR professional Charles B. Parselle explains this seeming "allure" of litigation, thus:
"A court trial fulfils, or is thought to be capable of fulfilling, five
needs that are usually absent in a mediated settlement: a sense of
vindication, a sense of empowerment, a desire to be heard publicly, a
desire for the particular dispute to receive the stamp of legitimacy,
and the desire not only that justice be done but that it "be manifestly
seen to be done."
Aggrieved litigants seek vindication, and further, they seek public
vindication. That is to say they want their "day in court," no matter
what it costs. Perhaps they will not really achieve vindication, but
there is always the chance that they might, and they see a trial as the
best chance they have of achieving it. People do not necessarily
approach their conflicts in purely rational terms; they have strong
emotional interests to satisfy, and a deep human desire to be proven
right. They want to win, and they want someone else to lose. They want
forever after to be able to tell themselves, their family and friends,
that they won their case. They want bragging rights. People will pay a
high price for this, and will bear not only the cost of the litigation,
but also the risk of losing, in order to attempt it.
People want to feel empowered; they want to feel that they can create an
impact. When they walk into court for trial beside their hired
champion, the attorney, and sit in the world of the courtroom looking up
at the judge, they feel that the full authority of the state, that
embodies the society in which they live, has interested itself in their
particular conflict. And, in fact, it has, even though the particular
judge may not quite see it that way.
In the last few years, we have seen judicial reforms aimed at speeding
up the disposition of litigated cases. One recent measure promulgated by
the Supreme Court is the Judicial Affidavit Rule which took effect
January of this year. This new procedural rule mandates the use of
judicial affidavits, instead of the direct oral testimony of witnesses.
It aims to expedite the process of presenting evidence, which should
ultimately result in the earlier resolution of pending cases, by:
1. Doing away with the often lengthy and time-consuming direct
examination of witnesses. The "judicial affidavit" is in Question and
Answer format and records in written form the testimony on direct
examination that the witness has given under oath. The affidavit must be
submitted at least five days prior to a preliminary conference in a
case or the hearing of motions. Object and documentary evidence should
also be marked and attached to the affidavits at the time of their
filing and must be authenticated by a declaration therein that they are
faithful copies. The failure to submit the affidavits on time results in
a waiver although the court may give a one-time reprieve to the party
at fault if he gives a valid reason for the omission and pays a fine
ranging from ₱1,000 to ₱5,000. As soon as the purpose of a witness’s
testimony is declared in open court and objections to the testimony’s
admissibility are resolved, the witness is immediately readied for
cross-examination. The party who presented the witness may conduct a
re-direct examination, if necessary.
2. Having the rule apply to all actions, proceedings and incidents
requiring the reception of evidence in cases cognizable by the first and
second level courts including the Shari’a circuit and district courts,
the Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, the
Shari’a Appellate Courts, the investigating officers and bodies
authorized by the Supreme Court to receive evidence including the
Integrated Bar of the Philippines and the special courts and
quasi-judicial bodies whose rules of procedure are subject to
disapproval by the Supreme Court.
3. Requiring the oral offer of documentary exhibits immediately upon the
termination of the testimony of a party’s last witness. After each
piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall
immediately make its ruling respecting that exhibit. Since the
documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them, it is sufficient that such exhibits are
simply cited by their markings during the offers, the objections, and
the rulings, dispensing with the description of each exhibit.
The rule also applies to criminal actions: (1) Where the maximum of the
imposable penalty does not exceed six years; (2) Where the accused
agrees to the use of judicial affidavits, irrespective of the penalty
involved; or (3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
However, while the judicial affidavit rule may cut trial time
considerably, it does have at least one major drawback. Because the
direct testimony of a witness is reduced to affidavit form, it may be
more difficult for the judge to assess the witness’s credibility. In
many cases, the credibility of a witness is weighed on the basis of his
demeanor in the rendition of his direct oral testimony. Unavoidably,
during trial, the judge is naturally attuned not only to what is said,
but also to how it is said. In fact, a witness’s credibility is often
assessed even by what is unsaid: the facial expression, the tone and
volume of one’s voice, and all the other nonverbal cues that by ordinary
human experience, are given meaning as either confirming or
contradicting what the witness utters in open court.
Even then, the judicial affidavit rule is one novel measure among many
others which, when implemented properly, will substantially reduce
delays in the litigation process. It is one significant and
ground-breaking step towards the more speedy administration of justice.
As to eliminating delays altogether, however, suffice it to say that, as
former California Attorney General Evelle J. Younger mischievously put
it: "An incompetent lawyer can delay a lawsuit for years. A competent
lawyer can delay one even longer."
Glenn C. Aquino is a partner of the Angara Abello Concepcion Regala
& Cruz Law Offices. He obtained his LLB from the University of the
Philippines College of Law. He is resident partner and monitor of
ACCRALAW’s Davao Branch. He can be contacted through e-mail at gcaquino@accralaw.com or tel. no. (082)224.0996.
Wednesday, March 27, 2013
Wednesday, January 23, 2013
Towards a paperless judicial system
Businessworld - IN HER first speech as Chief Magistrate,
Chief Justice Maria Lourdes P. A. Sereno emphasized the need of the
Judiciary to cope with the developments in technology to hasten the
delivery of justice. Consistent with her proposed reforms for the
Judiciary, the Supreme Court issued A. M. No. 11-9-4-SC, otherwise known
as the Efficient Use of Paper Rule (the “Rule”), on Nov. 13, 2012,
which applies to all courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court. The Rule took effect on
Jan. 1. 2013.
Lawyers and members of the Judiciary, therefore, had to adjust to the Rule upon the start of the year. The Rule specified a required format, style and margin that must be followed in all pleadings, motions and similar papers to be filed before the courts, as well as in the decisions, resolutions, and orders to be issued by the courts and quasi-judicial bodies. The Rule likewise reduced the number of copies to be filed before the courts.
From a technological aspect, what is most ground breaking about the Rule is the provision allowing parties to file their pleadings with the Supreme Court by the submission of soft copies, including its annexes in Portable Document Format (PDF), either by email or by compact disc (CD), in preparation for the eventual establishment of an “e-filing paperless system” in the Judiciary (e-filing). As such, parties could now file their pleadings before the Supreme Court by emailing their documents to efile@sc.judiciary.gov.ph.
This new method of filing may be done on a voluntary basis for the first six months following the effectivity of the Rule. After this six-month period, E-Filing (or the submission of pleadings by email or in a CD) with the Supreme Court will be compulsory, unless otherwise extended.
It is no secret in the legal profession that the printing of pleadings, compilation of knee-high annexes, and the reproduction of each set to meet the required number of copies to be filed, is a time-consuming and expensive exercise. In the process, several reams of bond paper are consumed for the initial printing and the photocopying of the documents. The subsequent hauling of these documents to the courts for filing, or the filing of these documents personally or even by registered mail translates to higher costs which are shouldered by the parties. The courts receiving these piles of documents then have to physically file these papers in their depleting storage rooms and cabinets. In that sense, the court dockets are literally congested.
By reason of technology, it is commonplace to send documents by the click of a button, and the recipient could store the electronic copy in their computer or any compatible device. As such, e-filing in the Philippines has its advantages. For example, a lawyer who holds office outside Manila could instantly file a pleading with the Supreme Court in Manila, just by emailing it to the designated email address. Costs of mailing the pleading and additional delay due to this traditional mode of filing are avoided.
In reality, the Philippines is lagging behind other countries in terms of the application of technology in the judicial system. E-filing is already the common practice in select jurisdictions in the United States, and in some countries in Europe. In Asia, Singapore applied its e-filing system as early as 1997, which was implemented in phases and became fully operational by 2006.
Is the Philippines ready for e-filing? There are still several aspects of e-filing that have to be addressed. At the onset, it cannot be emphasized enough that the legal profession is very traditional. In the Philippines, lawyers still have a tendency to strongly question the authenticity of electronic documents, despite the passage of the Rules on Electronic Evidence allowing for its admission.
It is likewise a question of whether the Supreme Court has the information technology (IT) infrastructure and security to handle large amounts of data that it will be receiving from litigants once e-filing is made compulsory. Valuable files could be lost and could no longer be retrieved by reason of a crash in the Supreme Court database. Worse, files could even be corrupted or stolen by an experienced hacker who may not even be physically located in the Philippines.
Although it is expected that traditional lawyers would resist the change in the method of filing their documents, it is known that Filipinos are slowly embracing, and realizing the benefits of, technology. In fact, it is a normal sight in courtrooms nowadays for lawyers to make use of their electronic devices in preparing and reading their notes, doing a quick research on relevant jurisprudence, and organizing their schedules.
The issuance of the Rule and the eventual establishment of an e-filing system are indeed commendable. However, there lies the need to ensure that our Supreme Court has the infrastructure and corresponding security measures and that our lawyers have the technological know-how. Thus, it is also essential to orient all practitioners in the country on the technical aspects of this system to ensure its successful implementation. Once successfully implemented, the e-filing system may then be applied in the lower appellate courts and first level courts, thereby allowing lawyers all over the Philippines to file and serve their court-bound documents electronically. The success of this system may pave the way to other IT innovations in the judicial system, such as a unified online case management system/database accessible to lawyers, the electronic sending of court orders and notices via e-mail, and the holding of a virtual courtroom attended by parties through video conferencing, among others.
What must be realized is that technology could serve as a useful tool to enhance and improve the delivery of justice. On this regard, the strong will of our Chief Justice could be indicative of the eventual successful implementation of these IT innovations in the judiciary. Perhaps, the achievement of a paperless judiciary is possible, after all.
(Darren M. De Jesus is an associate of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He can be contacted at Tel. No. 830-8000 or email address: dmdejesus@accralaw.com)
Lawyers and members of the Judiciary, therefore, had to adjust to the Rule upon the start of the year. The Rule specified a required format, style and margin that must be followed in all pleadings, motions and similar papers to be filed before the courts, as well as in the decisions, resolutions, and orders to be issued by the courts and quasi-judicial bodies. The Rule likewise reduced the number of copies to be filed before the courts.
From a technological aspect, what is most ground breaking about the Rule is the provision allowing parties to file their pleadings with the Supreme Court by the submission of soft copies, including its annexes in Portable Document Format (PDF), either by email or by compact disc (CD), in preparation for the eventual establishment of an “e-filing paperless system” in the Judiciary (e-filing). As such, parties could now file their pleadings before the Supreme Court by emailing their documents to efile@sc.judiciary.gov.ph.
This new method of filing may be done on a voluntary basis for the first six months following the effectivity of the Rule. After this six-month period, E-Filing (or the submission of pleadings by email or in a CD) with the Supreme Court will be compulsory, unless otherwise extended.
It is no secret in the legal profession that the printing of pleadings, compilation of knee-high annexes, and the reproduction of each set to meet the required number of copies to be filed, is a time-consuming and expensive exercise. In the process, several reams of bond paper are consumed for the initial printing and the photocopying of the documents. The subsequent hauling of these documents to the courts for filing, or the filing of these documents personally or even by registered mail translates to higher costs which are shouldered by the parties. The courts receiving these piles of documents then have to physically file these papers in their depleting storage rooms and cabinets. In that sense, the court dockets are literally congested.
By reason of technology, it is commonplace to send documents by the click of a button, and the recipient could store the electronic copy in their computer or any compatible device. As such, e-filing in the Philippines has its advantages. For example, a lawyer who holds office outside Manila could instantly file a pleading with the Supreme Court in Manila, just by emailing it to the designated email address. Costs of mailing the pleading and additional delay due to this traditional mode of filing are avoided.
In reality, the Philippines is lagging behind other countries in terms of the application of technology in the judicial system. E-filing is already the common practice in select jurisdictions in the United States, and in some countries in Europe. In Asia, Singapore applied its e-filing system as early as 1997, which was implemented in phases and became fully operational by 2006.
Is the Philippines ready for e-filing? There are still several aspects of e-filing that have to be addressed. At the onset, it cannot be emphasized enough that the legal profession is very traditional. In the Philippines, lawyers still have a tendency to strongly question the authenticity of electronic documents, despite the passage of the Rules on Electronic Evidence allowing for its admission.
It is likewise a question of whether the Supreme Court has the information technology (IT) infrastructure and security to handle large amounts of data that it will be receiving from litigants once e-filing is made compulsory. Valuable files could be lost and could no longer be retrieved by reason of a crash in the Supreme Court database. Worse, files could even be corrupted or stolen by an experienced hacker who may not even be physically located in the Philippines.
Although it is expected that traditional lawyers would resist the change in the method of filing their documents, it is known that Filipinos are slowly embracing, and realizing the benefits of, technology. In fact, it is a normal sight in courtrooms nowadays for lawyers to make use of their electronic devices in preparing and reading their notes, doing a quick research on relevant jurisprudence, and organizing their schedules.
The issuance of the Rule and the eventual establishment of an e-filing system are indeed commendable. However, there lies the need to ensure that our Supreme Court has the infrastructure and corresponding security measures and that our lawyers have the technological know-how. Thus, it is also essential to orient all practitioners in the country on the technical aspects of this system to ensure its successful implementation. Once successfully implemented, the e-filing system may then be applied in the lower appellate courts and first level courts, thereby allowing lawyers all over the Philippines to file and serve their court-bound documents electronically. The success of this system may pave the way to other IT innovations in the judicial system, such as a unified online case management system/database accessible to lawyers, the electronic sending of court orders and notices via e-mail, and the holding of a virtual courtroom attended by parties through video conferencing, among others.
What must be realized is that technology could serve as a useful tool to enhance and improve the delivery of justice. On this regard, the strong will of our Chief Justice could be indicative of the eventual successful implementation of these IT innovations in the judiciary. Perhaps, the achievement of a paperless judiciary is possible, after all.
(Darren M. De Jesus is an associate of Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He can be contacted at Tel. No. 830-8000 or email address: dmdejesus@accralaw.com)
Monday, January 14, 2013
SC: Failure to Explain Service By Registered Mail Not Automatically Subject to Sanction
The Rules of Civil Procedure do not provide for
automatic sanction should a party fail to submit the required
explanation for resorting to service by registered mail rather than
personal service.
In a six-page decision penned by Justice Roberto A. Abad,
the Court's Third Division unanimously held that both the Regional
Trial Court (RTC) of Lingayen, Pangasinan (Branch 37) and the Court of
Appeals did not gravely abuse their discretion when both courts ruled
against the striking out of the motion for judgment by default filed by
private respondent Roberto and Arabela Arcinue (Arcinues) against
petitioner Natividad Lim (Lim) for failure of the Arcinues to submit
the aforesaid required explanation.
The Court pointed out Rule 13, Section 11 of the 1997 Rules of Civil Procedure
“does not provide for automatic sanction should a party fail to submit
the required explanation. It merely provides for that possibility
considering its use of the term ‘may.’” Moreover, the same “does not
altogether prohibit service by registered mail when such service, when
adopted, ensures as in this case receipt by the adverse party.” It
noted that Lim’s counsel in fact even admitted to receiving a copy of
the Arcinues’ motion 10 days before the scheduled hearing on the said
motion. The Court thus directed the RTC to proceed with the hearing and
adjudication of the case.
National Power Corporation (NPC) filed an expropriation suit
against petitioner Lim for its Coal-Fired Thermal Power Project.
Private respondents Arcinue spouses filed a motion for leave to admit
their complaint-in-intervention, alleging that they owned and were in
possession of one of the lots subject of the expropriation. The RTC
granted the Arcinues’ motion and required both NPC and Lim to answer the
complaint-in-intervention within 10 days from receipt of its order.
Because NPC and Lim failed to file their respective answers, the
Arcinues filed a motion for judgment by default. Lim then sought to
expunge the motion for lack of the requisite explanation why the
Arcinues resorted to service by registered mail rather than personal
service. Both the RTC and the CA ruled against this, prompting her to
file a petition with the Court. (GR No. 178789, Lim v. NPC, November 14, 2012)
Monday, July 9, 2012
Substituted Service: Ex-AFP Chief Fabian Ver Deprived of Procedural Due Process
SC: Ex-AFP Chief Fabian Ver, et al. Deprived of Procedural Due Process in Damages Case
sc.judiciary.gov.ph
In a 24-page decision penned by Justice Jose Catral Mendoza, the SC’s Third Division denied the appeal of several suspected subversives who were arrested and detained by the military from the aforesaid CA ruling. The Court ruled that the respondents Ver, et al. had been completely deprived of due process when they were declared by the trial court in default based on a defective mode of service—service of notice to file answer by publication.
In 1993, the Regional Trial Court (RTC) of Quezon City handed down a decision in favor of the petitioners, and ordered respondents Ver, et al. to pay jointly and severally to some of the petitioners the amount of Php350,000 each as damages. However, several respondents appealed to the Court of Appeals (CA), and argued that they were deprived of the opportunity to be heard. The CA ruled that the RTC erred in declaring the respondents in default after it authorized service by publication of a notice to file answer, a mode of service that is not provided for in the Rules of Court, and reversed and set aside the RTC decision.
In ruling for respondents, the Court said “the rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default.” The Court also agreed with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte.
The Court noted that the RTC issued an order dated August 17, 1990 directing the petitioners to report the addresses and whereabouts of the respondents so that they would be properly notified of the proceedings. The Court agreed with the observation of the CA that such order was an attempt to serve a notice to file answer on the respondents by personal service and/or by mail. However, the Court found that “these proper and preferred modes of service” were never resorted to because the OSG abandoned them when the petitioners failed to comply with the August 17, 1990 RTC order.
Nevertheless, the Court pointed out that there was still another less preferred but proper mode of service available — substituted service — which is service made by delivering the copy to the clerk of court, with proof of failure to both personal service and service by mail. “Unfortunately, this substitute mode of service was not resorted to by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an unrecognized mode of service under the Rules, which was service of notice to file answer by publication,” the Court found.
The Court also stressed that the RTC should have been more patient in notifying the respondents through personal service and/or service by mail. “It should not have simply abandoned the preferred modes of service when the petitioners failed to comply with its August 17, 1990 order with the correct addresses of the respondents. More so, it should not have skipped the substituted service prescribed under the Rules and authorized a service of notice on the respondents to file answer by publication,” the Court added. The Court also noted that personal service to the respondents is practicable under the circumstances considering that they were well-known persons who used to occupy high government positions.
In their petition to the Court, petitioners argued that the publication was a valid and justified procedure because following the ruling of the RTC, it was “an extra step to safeguard the interest of the defendants done pursuant to the inherent power of the courts to control its proceedings to make them comfortable to law and justice.” However, the Court ruled that the exercise of such inherent power must not violate basic court procedures, and must not disregard one’s basic constitutional right to procedural due process.
The petitioners also contended that the respondents were well represented by counsel from 1983 up to December 1990; that the respondents were properly notified of the entire proceedings through their counsel; that the respondents’ counsel was negligent for failing to file an answer within the prescribed period; and that the negligence of the OSG binds the respondents. Nevertheless, the Court held that while the OSG only filed a notice of withdrawal only on December 11, 1990, the respondents were in effect no longer represented by counsel as early as April 15, 1998 when its decision on the instant case was rendered, or much earlier, right after the 1986 EDSA Revolution due to the change in government. The Court said that the OSG’s withdrawal of representation, due to the unique scenario of this case, is not equivalent to professional delinquency or ignorance, incompetency or inexperience or negligence and dereliction of duty.
The Court also held that the entire records of the case at bar tend to show that the respondents were completely out of the picture until after the promulgation of the RTC decision finding them liable for damages.
The Court added that though it commiserates with the petitioners’ plight and cry for justice, the Court found itself unable to grant their plea “because the fundamental law clearly provides that no person shall be deprived of life, liberty and property without due process of law.”
Concurring in the decision are Justices Presbitero J. Velasco, Jr., Diosdado M. Peralta, Roberto A. Abad, and Estela M. Perlas-Bernabe. (GR No. 166216, Aberca v. Ver, March 14, 2012)
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