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 

that: 

(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. 

CONCLUSION:

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).