Speech of President Aquino at the 123rd anniversary of the Philippine Bar Association | Official Gazette of the Republic of the Philippines

See - Speech of President Aquino at the 123rd anniversary of the Philippine Bar Association | Official Gazette of the Republic of the Philippines





"x x x.

Men, by definition, are imperfect beings; disputes will undoubtedly arise in our interactions. We have crafted laws to settle these disputes in a just and orderly manner—after all, in the absence of these laws, we would be reduced to the law of the jungle, where might is right. As such, the Law embodies the consensus of society—a consensus on how we must all interact and treat each other, with fairness and justice.

If justice is defined as doing right by all, then it must be based on truth. Whether as advocates or judges in the settling of disputes, lawyers like you are very much involved in the process of meting out justice—a process that ultimately relies on the search for truth. But when truth is put aside in favor of the position the client wants to take—when the search for truth becomes optional, as opposed to the only path we must take, I have to ask: what would happen? What would happen to justice? If the search for truth is no longer the focal point of interest in settling disputes, can a true and lasting resolution of disputes take place?

My family has had experience with this. One year before the declaration of martial law, Mr. Marcos accused my father of several crimes. He did not, however, bring my father, as you all know, to a civil court—Mr. Marcos brought him to a military court that he created a year later after accusing my father, when he had already declared martial law. In my dad’s case, the accuser; the appointing authority of the judge, which was the military commission; those of the prosecution; and even of the defense; and the final reviewing authority for the outcome of the case were one and the same: Mr. Marcos. On paper, it would seem that they had followed all the appropriate legal procedures. But does anyone doubt the impossibility of obtaining justice in that situation? Does anyone doubt that this court was created to carry out only the will of the dictator, and not to search for the truth?

I have never been a formal student of law, and whatever law degrees I do possess currently are all honorary. But, like you, I am duty-bound to uphold the law, and a copy of the Constitution is always within my reach. And it has always been clear to me that, because the law is created by men, it then follows that the law is supposed to be in the service of men—that our laws, in providing the rights and obligations of all, are supposed be in the service of the Filipino people.

This makes me wonder, then, about the existence of this much-abused saying (and I’m sorry if I mispronounce it, as there were so many different accents when they used this phrase): dura lex, sed lex. The law is harsh but it is the law. Some of my colleagues in Congress sounded like broken records, with how often they repeated this maxim. Just as often, I wondered: what about the times when a rigid obsession with the letter of the law comes at the expense of the people the law was meant to serve? What about the negative consequences of an unyielding focus on the letter of the law? In the application of the law, is it not true that both the letter and the spirit of the law must be given importance? After all, the spirit of the law is defined as its intent, and all laws—if they are rightful laws—are intended to serve man and improve his lot in life. When, in adherence to the letter of the law, the spirit of serving man is lost, then, I submit, there is something wrong with the entire process.

x x x.

And how can we forget that dark period in our country’s history, when a man succeeded in becoming the supreme law of the land? It was during Martial Law when some lawyers helped Mr. Marcos craft his presidential decrees and other utterances in order to give them a veneer of legality—when these decrees, in fact, only served one man and his cronies, and allowed for the abuse of so many Filipinos, my father included. Indeed, when the observance of said law hampers the progress of man, then it is the law that is served—and not man.

As legal practitioners, you are faced with difficult situations all the time—moments where your decisions can set a precedent for others. These kinds of situations have become very familiar to me, especially today, in my job as President. Perhaps you will allow me to share with you a simple method I use whenever I am faced with challenges: All I do is ask myself, “Does this redound to the common good?”

I find that no matter how complex or convoluted the situation, asking myself this question illuminates the path I must take—a path that would allow me to do what is right, uphold justice, and help my countrymen, not just sometimes, but all the time. If you are a good and able lawyer, then I hope that you already ask yourself this question on a regular basis. After all, we do not have to go further than the past 25 years to see so many cases in which members of the legal profession stood tall as advocates of right and justice—we do not even have to go further than the Philippine Bar Association.

Looking back on your long history, it seems that the PBA has made it a tradition to safeguard and uphold the rule of law. You were a voice for the oppressed during Martial Law, as you investigated human rights violations, and even the assassination of my father. You were likewise a voice for the restoration of democracy and the rule of law after the People Power Revolution, when you supported my mother’s promulgating the 1986 Freedom Constitution, which paved the way for our present 1987 Charter. Even during the time of my predecessor, you did not waver, remaining a sober and responsible guardian of our Constitution—even taking a lead role in questioning the midnight appointments of my predecessor.

You were right to be so concerned. In our system of government, there is a separation of powers among the executive, judicial, and legislative branches—a built-in system of checks and balances that, most would agree, relies on an objective and nonpartisan Supreme Court. Unfortunately, this objectivity was subverted when Mrs. Arroyo appointed then-Chief Justice Corona in what many in the legal profession, including the Philippine Bar Association, believed to be improper.

In fact, when the Supreme Court issued a ruling validating her appointment, might I ask: was there already a justiciable controversy, warranting such an immediate ruling of the Supreme Court? Of course, all of you are familiar with the principle of “justiciable controversy ripe for judicial determination.” Even if Mrs. Arroyo did not appoint a new Chief Justice, the next President would still have had 45 days, or half of the period prescribed by the Constitution, to appoint a fitting candidate to the position. There was no conflict or controversy yet, but the Supreme Court at the time saw it fit to decide. I am sure a lot of you looked at that decision, and I am just as sure that I was not the only one who wondered whether or not they rewrote the Constitution in a manner not approved by that very same Constitution.

The entire nation became a witness to the consequences of this midnight appointment when it became clear that Mr. Corona was in the Supreme Court to protect the interests of the woman who had appointed him. As if his integrity were not already compromised, while in office, Mr. Corona also failed to display the highest integrity demanded of his position when he did not declare over 98 percent of his assets in his Statement of Assets, Liabilities, and Net Worth [SALN].

x x x.

In this case, his actions posed a troubling question: if the truth—or if the law—is changeable, ephemeral, and uncertain, does it redound to anyone’s benefit? In these instances, Mr. Corona had already failed the very people he had sworn to serve and the law he had sworn to uphold.These failings became even more apparent in the indecision that the Supreme Court displayed under Mr. Corona, as it contributed to judicial flip-flopping in cases like that of the Flight Attendants Association of the Philippines [FASAP], and of the League of Cities of the Philippines [LCP], where it reversed earlier decisions. Apart from corroding judicial certainty, the flip-flopping of the Supreme Court in these instances created complications that will not be easily resolved. With all these reversals, what form of redress was available to the flight attendants under FASAP, or to the affected municipalities and cities? Under Mr. Corona, the Supreme Court’s apparent willingness to change the institution’s earlier decisionsset a dangerous standard for litigation that, seemingly, could not reach a conclusive end.

The decision to undergo the process of impeachment was not one that we made lightly. Often, we wondered: how many lawyers would want to side with us—to side with justice and the rule of law—knowing that they would have to go to the Supreme Court at various stages in their career? How many lawyers would willingly risk their source of livelihood in such a manner?

x x x."

Certiorari not proper to appeal an acquittal.

"x x x.

 It is fitting to reiterate the holding of the Court in People v. Tria-Tirona,[6] to wit:

x  x  x   it is clear in this jurisdiction that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy.  The only exception where double jeopardy cannot be invoked is where there is a finding of mistrial resulting in a denial of due process.

           x x x x

x x x   Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its conclusions of law.[7] 

          

         The Court further expounded in First Corporation v. Former Sixth Division of the Court of Appeals,[8] thus:

            It is a fundamental aphorism in law that a review of facts and evidence is not the province of the extraordinary remedy of certiorari, which isextra ordinem - beyond the ambit of appeal. In certiorari proceedings, judicial review does not go as far as to examine and assess the evidence of the parties and to weigh the probative value thereof. It does not include an inquiry as to the correctness of the evaluation of evidence. Any error committed in the evaluation of evidence is merely an error of judgment that cannot be remedied by certiorari.  An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion, which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors of the trial court in its appreciation of the evidence of the parties, or its conclusions anchored on the said findings and its conclusions of law.  It is not for this Court to re-examine conflicting evidence, re-evaluate the credibility of the witnesses or substitute the findings of fact of the court a quo. (Emphasis supplied.)[9]

  

         The aim of the present petition is to overturn the Sandiganbayan's conclusion that “there is no doubt that dredging work was performed along the Palto and Pakulayo Rivers”[10]   and the “project was actually undertaken and accomplished by the said contractor x x x [h]ence the payment made to the latter was justified.”[11]  From such finding, the trial court held that the prosecution failed to prove the presence of all the elements of the offense charged, resulting in the acquittal of private respondents.   Petitioner points out that the lower court erred in arriving at such conclusion, since prosecution evidence shows that as of September 2, 1991 to October 2, 1991, when the dredging works were supposedly conducted, there was as yet no approved plans and specifications as required by Presidential Decree (PD) No. 1594 before bidding for construction contracts can proceed.   Petitioner doubts that the proper procedure for bidding had been followed.   Petitioner then asks how the project could have proceeded on September 2, 1991 when the required plan was only dated November 18, 1991.

         The foregoing is essentially an issue involving an alleged error of judgment, not an error of jurisdiction.  Petitioner has not convincingly shown that the prosecution has indeed been deprived of due process of law.  There is no showing that the trial court hampered the prosecution's presentation of evidence in any way.  On the contrary, the prosecution was given ample opportunity to present its ten witnesses and all necessary documentary evidence.  The case was only submitted for decision after the parties had duly rested their case.   Respondent trial court clearly stated in its decision which pieces of evidence led it to its conclusion that the project was actually undertaken, justifying payment to the contractor.  Clearly, petitioner failed to show that there was mistrial resulting in denial of due process.

         In People v. Tria-Tirona,[12] the Court held that when the trial court arrives at its decision only after all the evidence had been considered, weighed and passed upon, then “any error committed in the evaluation of evidence is merely an error of judgment that cannot be remedied by certiorari.”[13]

  

         In sum, there being no mistrial in this case, the acquittal of private respondents can no longer be reviewed by the Court as this would constitute a violation of the constitutional right against double jeopardy.   Moreover, since the alleged error is only one of judgment, petitioner is not entitled to the extraordinary writ of certiorari.

x x x."

Reference:

PEOPLE OF THE PHILIPPINES,                                     Petitioner,                 - versus – HON. SANDIGANBAYAN (FIFTH DIVISION), ABELARDO P. PANLAQUI, RENATO B. VELASCO,  ANGELITO PELAYO and WILFREDO CUNANAN,                                       Respondents.	G.R. No. 173396 Present: CARPIO, J., Chairperson, VELASCO, JR., * PERALTA, BERSAMIN, ** and ABAD, JJ. Promulgated:            September 22, 2010

x-----------------------------------------------------------------------------------------x

Hold departure order

"x x x.

Hold-departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts.

Clearly, criminal cases within the exclusive jurisdiction of first level courts, i.e., MeTCs, MTCs and MTCCs, do not fall within the ambit of the circular. It was therefore a mistake on the part of respondent judge to have issued one in the instant case.  Indeed, it exposed his ignorance of the circular.  The absence of malice, bad faith or malicious intent on his part is not sufficient to completely absolve him of liability.

It bears noting that Circular No. 37-97 is not new. It took effect on October 1, 2001 and several cases involving violations thereof have been dealt with by this Court before.  Evidently, respondent judge’s issuance of the hold-departure order suggested a failure to live up to the Code of Judicial Conduct which enjoins judges “to be faithful to the law and to maintain professional competence.” Only by diligent and conscientious effort in keeping abreast with developments in our legal system can respondent judge live up to his duties.[7]

A judge owes it to the public and to the legal profession to know the law he is supposed to apply in a given controversy. He is called upon to exhibit more than just a perfunctory understanding of statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles.[8] Service in the judiciary means continuous study and research on the law from beginning to end.[9] The study of law is a never ending and ceaseless process.[10] Respondent judge therefore cannot be spared punishment for his infraction. Judges should at all times be vigilant in their quest for new developments in the law so they can perform their duties and functions with passion and commitment, lest public confidence in the judiciary be eroded by the incompetent and irresponsible conduct of judges.[11]

Considering the evidence and attendant circumstances in the instant case, respondent judge regrettably failed to comply with the required judicial standard.

WHEREFORE, judgment is hereby rendered:

1.  finding respondent Judge Cornelio T. Jaca, Acting Presiding Judge of the 1^st MCTC, Bantayan- Sta. Fe Madredejos, Cebu, liable for violating Circular No. 39-97. Accordingly, he is ordered to pay a FINE of P10,000 as recommended by then Court Administrator Benipayo, with aWARNING that a repetition of the same or similar acts shall be dealt with more severely;

2.  DISMISSING the charges of falsification and replacement/insertion of affidavits and other documents in the records of Criminal Case No. BSM-97-2301 against respondent judge and the clerk of court for insufficiency of evidence.

SO ORDERED.

x x x."

See -  [A.M. No. MTJ-01-1351.  January 27, 2004] - DR. JOHN M.W. GRIEVE, complainant, vs. JUDGE CORNELIO T. JACA, respondent.

Judicial determination of probable cause.

"x x x.

The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order.  By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.[40] Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari.[41]

We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court[42] in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused.  The duty to make such determination is personal and exclusive to the issuing judge.  He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information.

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial.  A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.[43]

If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof.  Such certification of the investigating prosecutor is, by itself, ineffective.  It is not binding on the trial court.  Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.[44]

In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.  Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.[45] In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge.  He relies on common sense.[46] A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused.  Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.[47]

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial:

It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice.  The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges.  For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent.  The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable.  Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time.  The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless.  Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.[48]

In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information.  After all, as the Court held in Webb v. De Leon,[49] the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.[50] However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.[51] The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.[52] Indeed, in Ho v. People,[53]this Court held that:

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge.  We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused.  What is required, rather, is that the judge must havesufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.  The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did in this case.  Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest.  This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.[54]

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution:

SEC. 8. Records. – (a) Records supporting the information or complaint.  An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.

If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case.  However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty.[55] The judge may even call the complainant and his witness to themselves answer the court’s probing questions to determine the existence of probable cause.[56] The rulings of this Court in Soliven v. Makasiar[57] and Lim v. Felix[58] are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz:

SEC. 6.  When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.  He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.  If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule.  In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latter’s reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure.  The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or non-existence of probable cause.

First.  When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount.  The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money;

Second.  The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner.  It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor;

Third.  The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged.  Barbiran did not execute any affidavit;

Fourth.  There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal;

Fifth.  The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her.  However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner.  The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration;

Sixth.  In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latter’s affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself;

Seventh.  The investigating prosecutor stated in his resolution that the private complainant established the element of deceit.  However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence.

In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioner’s arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor.

x x x."

See -  [G.R. No. 150185.  May 27, 2004] - TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents.

Ten Practical Tips for Effectively Using Retained Expert Witnesses

See - Ten Practical Tips for Effectively Using Retained Expert Witnesses





"x x x.



xxx. The following suggestions will help contain high fees and reduce the possibility of a court excluding testimony from your expert. Obviously, all must be done within the ethical guidelines of your particular jurisdiction.

1. Have a very specific employment contract. State clearly what the expert needs to do, so there is no confusion. For example, if a physician needs to review the depositions of all fact witnesses before she forms her opinion, put this in writing. State when certain tasks need to be performed. If the physician needs to review the depositions and provide an opinion within six weeks of employment, set the time frame out clearly in the contract.
2. Make certain the expert is clear on what he should not be doing. For example, a real estate appraiser typically lacks expertise in environmental problems. He should not be allowed to opine on the extent of environmental contamination (or costs of remediation), unless he relies upon the expertise of someone in the environmental field. To allow an expert to tackle a subject outside his training, education, and expertise subjects him to a possible Daubert challenge. Even a brief foray outside the territory of his expertise leaves him open to attack.
3. Have someone on your staff (such as a legal assistant or investigator) do as much of the leg work for the expert as ethically possible. If someone in your office can locate documents or make exhibits for the expert, this will cut down on the expert’s time and expenses. The expert’s time is your client’s money.
4. Insure the expert has all the data he needs to form a well-grounded opinion. Make certain he has all the documents, depositions, photographs, maps, charts, medical records, laboratory analysis, etc. that you consider crucial for his review. He should not be expected to gather all the pertinent facts on his own – he may be too busy to do so, may not know the evidence as well as you do, and may not be aware of all the evidence.
5. Be certain to provide adverse evidence to your expert, as well as the evidence that supports your position. The expert’s opinion won’t count for much on the witness stand if opposing counsel points out critical data he failed to consider because he was unaware of it. How embarrassing if your expert creates a half-baked analysis because he didn’t consider the entire universe of facts in the case.
6. If possible, have the expert talk with you before finalizing his opinion. This isn’t for the purpose of manipulating his conclusion. It should be done to discuss the scope of the work he performed, the data he reviewed, and the basis of his opinion. You want to insure he reaches a conclusion that is consistent with the evidence and has sufficient supporting data.
7. Experts are expensive. Really good experts are usually really expensive. To keep costs contained, put a clause in the employment contract that stair-steps payments to the expert depending upon the work performed. For example, the attorney might include a clause limiting an archeologist to a total fee of $3,000 for initial document review and consultation. The contract should state that the archeologist may only exceed $3,000 with written permission from you. Upon obtaining permission, the archeologist would be authorized to bill up to an additional $3,000 and so on. This provides some control over costs and may keep things more affordable for the client.
8. Make certain the expert is in the loop on dates and deadlines. Have your assistant keep him abreast of deadlines for submitting his report, of depositions you may want him to attend, and of the trial setting. Gentle reminders will help keep him focused on the case.
9. Increase your expert’s comfort level by insuring he is familiar with the courthouse, where to park, courtroom procedures, etc. Even an old hand who has testified frequently may still require some guidance from you and may appreciate knowing a bit about the judge and opposing counsel. Experts who are novices at testifying will feel much more comfortable after an overview of how trials proceed, some basics of the rules of evidence, and what to expect when they are called to testify.
10. All experts, no matter what their field of expertise, seem to have one thing in common – they wait to the last minute to do their work. Prevent this from happening by requesting monthly phone or email progress updates from the expert. Meet or speak with him on a regular basis to make certain he is on track. Speak to your witness early and often to keep him focused on the case. Too busy yourself to keep the expert on track? Then delegate the task to your legal assistant. x x x."

Filipina wins landmark paternity suit vs Korean dad of her two children | Inquirer Global Nation

See - Filipina wins landmark paternity suit vs Korean dad of her two children | Inquirer Global Nation





"x x x.

MANILA, Philippines – After a year and a half of legal proceedings, a court in Korea has ruled on a landmark paternity suit in favor of a Filipina in the Philippines who was abandoned by the Korean father of her two children.

The court ruling, reported by online news site Korea Bizwire last June 23, 2014, “is the first time for [Korean-Filipino children] to win in a civil lawsuit seeking to find their wayward fathers.”

The Korean national had been in the Philippines for several years for business and was never legally married to the Filipina, the article said.

“He suddenly went back to Korea [around 2004] after which he stopped contacting the woman and refused to support his two sons financially,” it said.

“The mother came to Korea with her two sons with the Korean man’s name and photo in hand. Just before their visas expired, the mother met someone in the Emergency Support Center for Migrant Women and with the help of lawyers affiliated with the center she could successfully file for the case in December 2012,” the article said.

The Filipina received financial support from the Korean government and even shouldered the 10 million Korean won cost for the DNA testing of her children.

“The father, meanwhile, kept refusing to get the DNA test until he was forced to do so by the court with the threat of penalties,” the article said.

“Judge Kwon Yang-hee at the Seoul Family Court reached a verdict on June 22 that the plaintiffs, the two [Korean-Filipino] sons of a Korean father, were confirmed to be the children of the father,” it said.

The Filipina mother may soon begin receiving financial child support from the Korean father once the case is formally concluded.

According to statistics from the Department of Tourism, Korea is the top source of tourists going into the country with 374,223 arrivals, a 22.06 percent share of the total inbound traffic in 2013.

There are around 69,000 Filipinos in Korea, according to the December 2012 records of the Commission on Filipinos overseas. A large majority, more than 41,000, are temporary workers.

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Read more: http://globalnation.inquirer.net/107238/filipina-wins-landmark-paternity-suit-vs-korean-dad-of-her-two-children#ixzz35oCahoHS
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Supreme Court Tells Police 'Get A Warrant' For Phone Searches | National Law Journal

See - Supreme Court Tells Police 'Get A Warrant' For Phone Searches | National Law Journal





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The U.S. Supreme Court’s landmark decision protecting cellphone privacy sent a strong signal on Wednesday that the admittedly low-tech justices grasp the profound changes that the Information Age has wrought.

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

Ruling in Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of modern-day phones in the possession of arrestees. Rejecting government assertions of the need for quick access to phone contents, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.”

In tone and substance, Roberts’ decision seemed aimed at giving the court’s acknowledgement, if not blessing, to a new American era—much as Reno v. ACLU in 1997 commemorated the birth of the Internet, comparing it then to the colonial “town crier” deserving of full First Amendment protection.

Wednesday’s ruling was similar in retrofitting modern technology to the intention of the Constitution’s framers. Because of the vast data stored on phones, searching them could yield the same information that British soldiers could obtain by rummaging through a colonial home, the court suggested.

Though it may be unknowable until a current justice’s papers are revealed years from now, it seemed possible that Roberts worked hard to keep the case for himself and to achieve unanimity because of its landmark importance—as predecessors including Earl Warren sometimes did.

Justice Samuel Alito Jr. on Wednesday issued a brief concurrence with a different take on some aspects, but he agreed with the need for a clear rule for cellphone searches.

Criminal cases often divide the court, Ilya Shapiro of the Cato Institute noted. But “here we have a loud and unified ‘bright-line rule’ that sets a major standard for the digital age. Kudos to the court—and raspberries to the federal government,” he said.

American Civil Liberties Union legal director Steven Shapiro on Wednesday called the ruling revolutionary. “We have entered a new world but, as the court today recognized, our old values still apply and limit the government’s ability to rummage through the intimate details of our private lives,” Shapiro said.

Fred Cate, professor at Indiana University Maurer School of Law–Bloomington, said the ruling is of “staggering importance in modernizing privacy law and restraining overreaching law enforcement.”

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Supreme Court Rules Against Aereo in TV Streaming Case | Legal Times

See - Supreme Court Rules Against Aereo in TV Streaming Case | Legal Times





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Online streaming startup Aereo Inc. violated the copyrights of major television broadcast networks by retransmitting programs to users’ Internet devices for a fee, the U.S. Supreme Court ruled on Wednesday.

In what some observers have called the most important copyright challenge to reach the high court in a decade, ABC and other networks argued that Aereo was violating their exclusive right under the Copyright Act to "publicly perform" their works. A divided panel of the U.S. Court of Appeals for the Second Circuit disagreed.

In a 6-3 decision, the Supreme Court reversed the Second Circuit, finding Aereo was “publicly” performing the networks’ programs. Justice Stephen Breyer, writing for the majority, said that despite some technological differences, Aereo was similar to cable companies regulated under the federal Copyright Right.

“Viewed in terms of Congress’ regulatory objectives, why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers' screens. They do not render Aereo’s commercial objective any different from that of cable companies,” Breyer wrote.

Breyer was joined by Chief Justice John Roberts Jr. and justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Justice Antonin Scalia, joined by justices Clarence Thomas and Samuel Alito Jr., dissented. Scalia wrote that Aereo didn’t “perform” the programs at all because the subscriber chose the content.

“The court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come,” Scalia wrote.

Aereo's system relies on thousands of dime-sized, individual antennas arranged on large antenna boards at its central facility in Long Island City, N.Y. When a subscriber selects a television program, an individual antenna is temporarily assigned to that user and tuned to the appropriate channel to receive the program.

The program is saved to a large hard drive at Aereo's facility in a directory reserved for the user. If the user chooses to record the program for later viewing, a complete copy is created in the user's directory. If the user wants to view the program live, the system starts streaming from the copy in the user's directory after about six or seven seconds of programming have been saved.

No two users share the same antenna at the same time, according to Aereo, and when more than one user records or watches the same program, a separate copy of the program is created for each user.

The high court case, American Broadcasting Cos. v. Aereo, drew a wide range of amicus briefs. Copyright scholars weighed in on each side. The National Football League, Major League Baseball, the Obama administration and associations of composers, authors and actors lined up behind the major networks. Small and independent broadcasters, Dish Network, the Consumer Federation of America and others filed for Aereo.

The case basically asked whether Aereo's system was more like home recording of programs via a VCR or DVR, which does not infringe copyrights, or the unlicensed or unauthorized retransmission of copyrighted broadcast programs.

The networks' counsel, Paul Clement of Bancroft, argued that Congress specifically ensured copyright protection for retransmission of programs in the 1976 Copyright Act. The lawmakers broadened the definition of what it means to publicly "perform" a work. They also defined what it means to "transmit" a program or performance to the public by saying that transmission can be "by means of any device or process." And the device or process includes "one now known or later developed."

"Plainly, Congress did not want liability to turn on the technical details of a transmission service," Clement argued.

Aereo countered that the performance it transmits is actually the subscriber's playing of his or her personal recording, and not the performance that the networks transmit to the public.

"Because the performance embodied in each transmission from Aereo's equipment — the user's playing of her recording — is available only to the individual user who created that recording, the performance is private, not public," contended Aereo's counsel, David Frederick of Kellogg, Huber, Hansen, Todd & Figel.

Contact Zoe Tillman at ztillman@alm.com and Marcia Coyle at mcoyle@alm.com.

Read more: http://www.nationallawjournal.com/legaltimes/id=1202660769136/Supreme-Court-Rules-Against-Aereo-in-TV-Streaming-Case#ixzz35nk4ssGL



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