Thursday, May 2, 2013

Comments on the Judicial Affidavit Rule

Earlier this year the Supreme Court implemented the Judicial Affidavit Rule. Instead of making a witness sit on the stand, a judicial affidavit will be submitted which will take the place of the witness' testimony in open court. How does a judicial affidavit look like? Aside from the novel additions, a judicial affidavit is, in a nutshell, in the form of questions and answers. These questions and answers will SERVE as the direct testimony of the witness. All that needs to be done once the JA is submitted is for the witness to identify his JA and cross examination will now commence.

The Judicial Affidavit Rule (JAR) seeks to shorten the time of judicial proceedings, however, five months into its full implementation in civil cases, I have made the following observations, especially on the subject matter of what will be testified to by the witness:

  1. Too much time is wasted in drafting questions and transcribing answers especially when such questions and answers pertain to matters which will be admitted or stipulated during Pre-Trial. 
  2. Portions of a witness' testimony which are admitted / stipulated during Pre-Trial would have to be marked as admitted or stricken.

Possible solution: 
I humbly submit that a witness' judicial affidavit should be submitted after receipt of the pre-trial order or at least a few days before he/she is will be presented to give his/her testimony in court.

While the JAR may streamline the job of the courts in hearing witness' testimonies, it will bog down the work of a solo practitioner handling hundreds of cases. Imagine, you have to submit the JA at least five (5) days before pretrial. That may be for the advantage of the plaintiff, but what about the defendant? After submitting his answer, a lawyer will have to scramble to secure witnesses and get their testimonies. What if the testimony is technical, say for example, something that would call for accounting, or the testimony of an expert? The transcriptionist (most likely the attorney taking the JA) will have to make sure that what he is transcribing is accurate.

For the solo practitioner, it is another burden, and time management is key, but with so many cases, I foresee that Motions to Vacate Pre-Trial (for want of a JA) will be prevalent, or the lawyer will have to risk paying the penalty for a late submission of the JA.

Furthermore, there is a rather troubling matter that this JA introduced and that is the inclusion of the Lawyer's attestation which is herein-below reproduced:

Sec. 4. Sworn attestation of the lawyer. - (a) The judicial affidavit 
shall contain a sworn attestation at the end, executed by the lawyer who 
conducted or supervised the examination of the ·witness, to the effect 
(1) He faithfully recorded or caused to be recorded the 
questions he asked and the corresponding answers that the 
witness gave; and 
(2) Neither he nor any other person then present or assisting 
him coached the witness regarding the latter's answers. 

Some of you will ask, "Atorni! ngano disturbing man na?". Regarding the lawyer's attestation, I don't think there is any lawyer worth his salt who hasn't briefed (let's face it, COACHED) his witness in eliciting a favorable response/testimony. Only the extremely gullible or naive will believe the lawyer's attestation at the bottom of the judicial affidavit. 

Five months into its implementation, the JAR has several impractical sections. It must be amended in the interest of substantial justice and fairplay (not just to lawyers, but to the courts as well).


  1. the judicial affidavit rule will not attain its objective, which is, to speed up resolution of cases. what it will definitely achieve are depriving the poor access to courts as it will be more expensive to litigate for lawyers will charge more for added work; further delay in proceedings as judges will still read the judicial affidavit and will have no notes to rely on; encourage perjury as it is the lawyer and not the witness speaking; complicate instead of simplify proceedings as all judicial affidavits must be submitted before pre-trial doing away the benefit of judicial admissions during pre-trial; burdened the lawyers as most of their time are wasted in preparing the affidavit instead of research; cause substantial miscarriage of justice as excluded evidence merely on form may no longer be introduced as there is no recovery; the SC should now conduct interviews on practitioners regarding this dangerous and impractical rule. I still have to meet a lawyer who never complained about this rule...

    1. Up to now, I wonder how the SC ever researched or conducted a test run on the JA rule. When Justice Abad visited IBP-Cebu City, he was totally ignorant of the fact that not all municipalities have their own prosecutors; courts would rely on what we call as "police prosecutors", truly, how can such "police prosecutor" even have time to prepare a JA... this JA rule is a new can of worms. Sadly, the worms haven't crawled up lady Justice's skirt yet.

  2. dear atty abella,

    We, the students of the University of Cebu College of Law, would like to request for your assistance in filling up this survey. Through this survey, we would like to get results and opinions from lawyers, judges and the public regarding our group’s suggested reform on the establishment of a Judical Management System in order to lessen the use of paper while at the same time implementing the Judicial Affidavit Rule. Results of this survey will be presented to you and the rest of the respondents.

    1. Sorry for the late reply, Leah, I shall visit your link.

  3. What we need is a legal architecture with layman-friendly interfaces that would enable an ordinary literate person to determine the merits of his claims on his own such that he would know the most probable outcome of a case that he would file base on that claim. This same architecture will be utilized by judicial, quasi-judicial & admin authorities in evaluating the merits of the respective positions in a case or dispute, thus saving years of litigation. This facility could easily integrate advance paperless, authentication & forensic technology systems.