Why not empower litigators?

          As a non-lawyer, have you ever wondered if there is a period prescribed for our courts to decide cases pending before them? Try to ask someone right now about it and you will surely get rolling eyes as a response. But wait, save those rolling eyes for later.

Circular No. 38-39, which provides for the implementing rules for the Speedy Trial Act of 1998, requires that arraignment and pre-trial of criminal cases should be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. It further sets the time limit for trial at a period which should not exceed one hundred eighty (180) days or six (6) months from the first day of trial, with some exclusions and exceptions.

And yes, no less than the fundamental law of the land – the 1987 Philippine Constitution, mandates that all cases or matters filed after its effectivity(2 February 1987) must be decided or resolved within twenty-four (24) months or two (2) years from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve (12) months or one (1) year for all lower collegiate courts, that include the Court of Appeals, and three (3) months for all other lower courts, which refer to the Regional Trial Courts and Municipal Trial Courts.

30 days? 180 days? 24 months? 12 months? 3 months!? Now here’s the time you roll your eyes.

But let me get it straight, it is not because our judicial system is broken nor our Rules of Court ineffective. It just so happened that there are some practitioners (this includes private lawyers and public lawyers alike such as public prosecutors and lawyers from the public attorney’s office) who are at times negligent or overburdened with work which cause the unnecessary delays, and it cannot be denied as well that not all judges are as efficient as our laws and rulesrequirethem to be.

In my almost five years of experience as a practicing lawyer, I have been involved in all the stages of trial – right from the filing of the complaint up to finality of the Supreme Court’s decision, and I could attest that the regulatory periods cited above tend to be a mere recital of words most of the time. And when our laws and rules are seen as such, something needs to be done.

For some reasons hard to fathom, I have handled a drug case involving minors who have spent almost one year in the custody of the Department of Social Welfare and Development (DSWD) from the time of their arrest and inquest and yet they have not been arraigned since then. We were trying to speed up the process but we were caught up by the presiding judge taking his holiday leave. The hapless minors get to spend the holidays away from their grieving parents. The last time I saw one of the minors, he was suffering from a severe skin allergy due to the unfriendly condition of the place of his detention.

I likewise handled a three year old homicide case which is still at the stage of prosecution’s presentation of evidence. It was stalled because of numerous postponements both from the parties and the court. Unfortunately, the private complainant, the widow of the victim, decided to finally stop participating in the prosecution as it has become too much of a burden on her time, pocket, body and mind. That was the last thing I heard about her.

And don’t even get me started on the cases I inherited from the previous handling lawyers now that I am working for the government. Some of the cases date back to early 2000s. And a few originating from the late 1990s. Imagine the time, effort, money, and even the paper and folder spent on these cases. We could have built a bookstore with all those.

Now going back to the causes of these delays. Come to think of it, people disregard minute details which if put altogether bring about a bigger than itself problem or concern. Take an ordinary hearing day for example. Some judges, public prosecutors and lawyers from the public attorney’s office (PAO) come to court late for about an hour or so. When they finally arrive, they now need to chase time. Impatient judges would thenpressure the litigators to act, explain or argue as quickly as possible, thereby compromising quality. Prosecutors and lawyers from PAO, on the other hand, would opt to request for a continuance or resetting, due to lack of ample time. It is hard to deny but this has become a common place in the courts of law here in our country.

Our courts set several hearings for mediation, judicial dispute resolution (JDR), preliminary conference, pre-trial, and not to forget the numerous litigated motions. The settings are usually a month or two later than the previous one. Same is true with criminal cases which commence with the preliminary investigation before the public prosecutor. Again, imagine if these settings will entertain postponement or resetting each and every time,plus the days where the judge or the public prosecutor is at a seminar or similar important event. It will really take years if that is so.

What we do not realize is that there are poor litigants who even came from the province just to attend that particular hearing, taking a leave or absence from their work or school just to be present, some had even borrowed money just to pay for their counsel’s appearance fee, and all other similar things that would be so harrow to imagine, yet what they regularly witness is a resetting or postponement of the hearing, to their utmost prejudice. This is not what we want the common people to think or remember about the judicial process.

Yes, we all know that this is difficult to avoid because of the intricacies of work and the sheer work load of our judges, public prosecutors, PAO, other public lawyers, and let’s include the staff and employees of our courts of law. Then why don’t we empower litigators then?

Let me explain.

Private lawyers,which comprise the bulk of litigators, have the luxury of choosing the cases they handle and the clients they represent, plus they get to manage their schedule. They can likewise delegate their cases to others and they are accountable to no one except to their clients. With these, our rules can give it a try to give them a freer hand in developing the case to make it more efficient and much faster. When the words ‘more efficient’ and ‘much faster’ are on the same line, it is to everyone’s delight.

Let the lawyers of the opposing parties meet, talk, negotiate, compromise, compare documents, simplify matters, disclose witnesses, and do anything useful to the case, right after the case has been filed. Order them to come to court only when everything – that means EVERYTHING – is all set for the one-setting trial of the case. It saves time and work, and time and work mean the world to lawyers.

It dispenses all these settings for mediation, JDR, preliminary conference, pre-trial, etc. It eliminates various motions that are filed since the court has already given the litigators time to meet and talk. What matters would they still need to move or pray for if they were already given the opportunity to thresh things out before hand?

No time limit, no pressure. Let your lawyer take his time to develop a winning case. It’s okay since the court and its officers are not burdened with work and time while the opposing litigators are figuring things out. And when they come to court, the presumption (has to be conclusive) is that the documents are set, other evidentiary matters are on hand, the witnesses are available, the lawyer is ready to present, and all other matters and concerns have been taken into consideration. The one-setting trial could be for hours, could be for a day. But that would be it. No continuance, no resetting. What comes next is that the case has to be submitted for resolution. Formal offer of evidence could even be dispensed with. That’s literally letting the litigators do all the work and then come to court to present and submit the case for resolution that same day.

Now, the hardest part – the cons of this far-reaching, sweeping idea. It calls for the complete overhaul of our rules, it diminishes the open, public nature of our trial, it could possibly require private lawyers for all parties, even in criminal cases, and what have you. It also cuts down the appearances of lawyers in court which deprives them collection of appearance fees.

But when proposals like this has the potential of changing the perception of the common people about our judicial system, something that would not make their eyes roll whenever they are asked about it, it is a good thing.

Life is a constant change. And we should go with the flow. If we allow ourselves to be confined to the rules of yesteryear which could have been effective during those time but might not be as such during these times, we become irrational as robots and machines. We need to make the necessary change. Empowering litigators might be the change our judicial system has been yearning for all these years.