Toilet Training by Fantasy
(From the Web site Mom Says Dad Says)
This morning I discovered a good way to motivate Juancho, my two-and-a-half year old kid, to use the toilet when making pooh pooh. In the past, we've done everything to make sure he goes to the potty before he drops his morning bombs. We talked to him, cajoled him, shouted at him, even threatened him with castration. My wife found a less violent way by reading him a book about Dori, the good boy who goes to the potty. It worked for a while but he soon went back to his old habit of doing it anywhere.
This morning was a revelation. He woke me up and asked me to read him a book. Since I haven't put on my contact lenses yet, I couldn't possibly read him a book so I told him I would just tell him a story. He engagingly obliged. Unfortunately, my mind was blank. I waited for spontaneous inspiration to set in until I thought of the working title: Juancho Goes to the Moon.
The title is the story. Thus, I knew then that the plot is simple. He rides a rocket, goes to the moon, and goes back. To improve upon it, I knew I had to render a little flourish, put on a little detail on the rocket ride, set him up with an alien and then bring him back to earth. The end. But where do I start? Blank. Then it popped: the toilet.
So my introduction goes: Juancho stepped into the toilet and made wee wee and then made pooh pooh and then began putting on his astronaut gear, his astronaut boots, his astronaut gloves, and then he stepped into the rocket and the announcer said Juancho is about to depart and began counting 10, 9,8,7,6,5,4,3,2,1, 0 blast off!
Okay so off went Juancho. Juancho held on to the steering wheel and pushed buttons here and there and then he marveled at the sky. Then Juanco's rocket circled the moon, once , twice, then landed softly on the surface and then Juancho got out of the rocket, got some soil samples, hopped and hopped, and then he met Eeek Eeek the alien who had nothing to say but eek eek. So, Juancho went back to the rocket and went back to earth. The end.
Okay, I know that's going to get a sure F in any class on creative writing. But Juancho liked it. He asked for another story. So I said okay the next story is Juancho Goes Back to the Moon -- same plot, same ending and same beginning. I guess he liked the part on riding the rocket so much since he didn't mind. Juancho goes to the toilet, makes wee wee and pooh pooh and puts on his astronaut suit, astronaut gloves, astronauts boots etc. Then he lands on the moon and talks to Eeek Eeek who still had nothing to say but eek eek. So he said don't you have anything to say but eek eeek? Then Eeek Eeek answered "of course.". So Juancho goes back to earth because he can't talk to Eeek Eeek. The End
Juancho laughed and asked for another story. So I said okay Juancho Goes to the Moon part III. Just then he stood up and said, "Tatay I'm going to the potty and make pooh pooh and go to the moon afterwards." It was that easy. No threats to cut off his birdie. Quickly, I jumped out of bed and brought him to the potty.
So what do you think? I hope it works again tomorrow when Juancho Goes to the Moon Part IV.
ON PREPARATION
Sun Tzu says,
If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
In the film Philadelphia, the lawyer played by Denzel Washington had a unique way of asking his client to explain to him the case being brought to him for litigation. After a brief description of the problem, he would ask the client to repeat the story to him with a nice tag line, "Okay, now explain your story to me like a were a six year old."
Denzel's character emphasizes the importance of a thorough knowledge of the facts of the case from the point of view of the client. The lawyer should be able to draw out from the client all concepts, stories, emotions, motivations in the client's story in order for the lawyer to understand the complete picture. Otherwise, a missing fact here and there can lead to disaster in the courtroom.
Sun Tzu, however, further states that knowledge of the enemy is just as important as knowing yourself. If you only know yourself and not the enemy, then you will only mean half your battles.
My teacher of Statutory Construction, Jose Jesus Laurel, former SEC Commissioner and Dean of Lyceum School of Law, often taught us that the rules of statutory construction always marched in pairs. His best example is the rule, "Dura Lex Sed Lex" which means, " The law may be hard, but that is the law." The rule emphasizes the need for the strict obedience to the letter of the law. However, the rule has an anti-thesis in the rule which says "Ratio est legis anima; mutata legis ratione mutatur et lexatio" which means the “Reason is the soul of law; when that reason is changed, the law also changed." Thus, every time a lawyer throws me the "Dura Lex…" maxim, I throw him back the "Ratio Legis” edict and always, I know the show is not going to be over just yet. This bit of lawyerly wisdom has always kept me on my toes. For even if I know I have the best argument any lawyer can think of for my case, I know the other side can always throw back an opposing argument that can be equally as strong. It is important to know your arguments. But it is equally important to know the arguments of the other side. Sun Tzu suggests that research should always be done on both sides of the conflict to ensure complete victory.
Atty. J. J Laurel’s idea works well for legal arguments. But the law is just one side of the case. It is likewise important to know how the other side will present its case to the facts in issue. The importance of knowing the side of the enemy has been underscored by Sun Tzu’s treatment of a complete chapter on spies in the Art of War. This leads us to the point that when the facts of the case are critical to a case, it may well be of great value to hire detectives to help do research on the facts as viewed from the other side.
The matter of hiring detectives is often thought of in marital cases where evidence of adultery, for example, are presented in pictures of the respondent going inside a motel with the lover. However, detectives can also be of use in commercial litigation where a missing piece of a puzzle cannot be obtained but through vigorous intelligence work.
As an apprentice in a Makati law firm, I had a chance to handle a case involving a bank, which credited a dollar remittance to a couple in the amount of USD 100,000. Our client was the recipient bank and the crediting bank sued us because it turned out that the remittance was only for USD 1,000. The couple withdrew the amount from our bank and ran away with the money. The only issue was which bank should bear the cost of the mistake. As if to complicate things for our client, it had lost its copy of the wire transfer indicating the amount and the. bank officer handling the account killed himself before the whole thing became a major banking scandal. The partner handling the case thus hired a detective who for days rummaged through trash of the other bank and discovered to our amusement a photocopy of the wire transfer instructions to our bank for USD 100,000. The photocopy was then used as basis for a subpoena to obtain the original from the bank. Our client won the case with the Regional Trial Court and the principal basis of the appeal of the other side was whether the subpoena was issued properly.
Maintaining knowledge of the story and of the evidence of the case is habit that pays well to cultivate. As a young lawyer, I was once asked to file a Motion for the Lifting of a Hold Departure Order against a client accused of Estafa. The client once had his cancer treated in the United States, which necessitated an annual check up. Thus, he needed to leave which can only be allowed with the Court's permission. The judge required that I present a Filipino doctor to testify that the check up should be done abroad. Our client had a difficult time obtaining an appointment with his doctor, so I asked him to answer questions writing. I later converted the response into an affidavit form and asked my client to have the doctor sign it before filing the same with the court before the hearing.
The doctor arrived just before the case was to be called. As everything was reduced to the affidavit, I asked him to prepare for cross-examination, which I surmised would be a breeze considering that he was a doctor about to testify on a medical matter of his expertise. But to my shock, just as the case was called, the doctor said, "We have a problem. It was my son who signed this affidavit."
Thinking as I rose from my seat, I decided not to have the witness identify the affidavit as a basis for the testimony. Instead, I conducted a complete direct examination using only the affidavit as a guide. I thought we were successful in presenting the case. Unfortunately, the cross-examination lingered on the affidavit and then he was asked the question that I was hoping would not be asked. "Did you sign this affidavit?" The doctor had to tell the truth and my motion was denied. It was my most embarrassing day as a lawyer.
Until the present, I keep thinking that if only I had met this doctor even for ten minutes, the disaster could not have happened. I should have interviewed the witness myself. I should have asked the witness if he was the one who signed the affidavit. I should have known a lot of things. Indeed, the very essence of preparation in litigation is knowing the facts and the law from all sides.
TEN BEST LAWYERS IN THE PHILIPPINES TODAY
In my seven years in the profession, I have seen hundreds of lawyers in action. I saw them negotiating, writing, appearing in court, pleading with authority, and doing everything they can to help their clients get out of bad situations. I have come to the conclusion that good lawyering is a matter of having good lawyer habits. The lawyers with the best instincts, and consequently the one who can best deliver legal service, is the one with the best habits. They are the lawyers who have made excellence a habit of mind. They are very careful with their clients' interests and very creative. They can compete with the best lawyers of the world. I kept a tab all these years. If you are a lawyer and you are not here, it's either I haven't met you or you still haven't made the grade. Here is my Top Ten.
NUMBER 10.
Francisco Ed. Lim
He pitched in for one week in my Evidence class and ran the classes like it were a military drill. We were expected to think on our feet, remember the fine points of the cases and laws, and speak out clearly. But I was more impressed when we worked with him in the multi-billion peso merger of PLDT and Smart. Precision of thought, clarity in language, a strong conviction for his advocacy -- he exhibited them all. A partner in the fabled ACCRA Law, he also runs a regular column on law in a national newspaper. His expertise appears to be corporate disputes.
NUMBER 9.
Nicanor Gatmaitan
This lawyer has a client who owed my client millions. He filed a case against us and prevented us from foreclosing on his clients' property. During the trial, he seamlessly made a clear presentation of his client's case, that I myself was convinced that he had case. He had no notes and he memorized each detail of our piles of documentary evidence. I spent sleepless nights on this man, thinking just how to get my client out of this fix. Now that I've given up the case, I say hats off to this man. He has a very good reputation as a trial lawyer. By the way, he is blind.
NUMBER 8
Saklolo Leano
He is considered as one of the few experts in aviation law and is constantly battling the world's best lawyers in this field. I had the privilege of working with him in the multi-billion peso construction arbitration case against a French contractor and would forever be in awe of this great lawyer. Sak was our hitman against the French's expert witness, a lawyer-engineer with very impressive academic and professional credentials. Sak cross-examined the expert witness like a cook peeling off the skin of an onion. He was subtle, precise, organized, logical and persuasive. The French tried his best to live up to his client's expectations but he was no match. At one high point of the cross-examination, Sak, with his pleasant and clear voice told the witness, "Mr. Smith, I am very sorry to say this but you do not have the slightest respect for the Philippine courts." We won PHP 700 million in that case.
NUMBER 7
MARIO BAUTISTA
Long before the nation witnessed the prowess of this lawyer during the direct examination of the prosecution's star witness in the Erap Impeachment trial, Mario Bautista's good reputation as a litigation lawyer has been well known among business circles in the Philippines. His law firm Poblador Bautista & Reyes is the counsel of choice of the Ayalas, the Philippines most successful and enduring business empire, and many other big companies in the Philippines. In the late nineties when a group of foreign banks was contemplating on filing a class suit against SGV, the biggest accounting firm in the Philippines formerly affiliated with Andersen Consulting, Mr. Bautista was the counsel for SGV. Thus, it came as no surprise then that Mr. Bautista was given the rare privilege of presenting the most important witness in the impeachment trial before a nation in denial. In spite of the lack of time to prepare, Mr. Bautista litigation instinct served him well. Mr. Bautista weathered every objection that the prosecution raised and made a clear and convincing story.
NUMBER 6
TOMAS DEL CASTILLO
Atty. Del Castillo is the perfect marriage of lawyerly form and substance. An expert in libel, he is the defender of the Philippine Daily Inquirer, the nation's most widely circulated newspaper, in all its libel cases. Mr. Del Castillo goes to trial in great looking suits, speaks in deep baritone and is always prepared. I saw him in action in defense of Hilarion Henares, the nation's favorite columnist, against a powerful lawyer businessman, whom Mr. Henares called "a monkey of foreign interests" and "small dick Romulo". Atty. del Castillo's defense was that the description is not a personal attack but a political statement against imperialism in the Philippines. Mr. Henares also called Mr. Romulo "small dick" because he is a short guy and his nickname happens to be Dick. Alas, Mr. Henares was acquitted.
NUMBER 5
ANTONIO A PICAZO
Here I should make a disclaimer. I worked for this great laywer practically my entire professional life. However, I believe this also makes my assessment credible. Atty. Picazo is the investment banking and corporate lawyer of choice of all major investment and commercial banks in the Philippines. In the days of Bancom, reportedly the first investmnet bank in the Philippines, Atty. Picazo served as senior legal counsel. After the break-up of Bancom, he subsequently headed the legal department of Unionbank and thereafter, co-founded the legendary PECABAR LAW OFFICE, together with Johnny Ponce Enrile, Renato Cayetano and Antonio Bautista. In 1987, Atty. Picazo bolted from PECABAR and founded Bautista Picazo Buyco Tan & Fider (later Atty. Bautista will build his own firm). As the managing partner of Picazolaw, he led the legal team that helped Metro Pacific purchase Fort Bonifacio, a prime real estate land in the heart of Metro Manila. The deal was worth billions of pesos and was considered the deal of the century. During the height of the Initial Public Offering (IPO) days of the Philippine Stock Market, 10 out of 15 IPO's in a year were handled by Atty. Picazo's Law Office. Atty. Picazo's good work habits, vast experience in corporate and banking law, and legal brilliance is unquestionable that rightfully earns him a place in my Top Ten.
NUMBER 4
MARIO ONGKIKO
The last big case that this great lawyer handled was the phenomenal indictment of Hubert Webb, a senator's son, in the trials involving the killing of a mother and her daughters, a teen-ager and a four-year old. Mr. Ongkiko had presented a perfect alibi -- Hubert Webb was in the United States when the killing took place. He was able to support the alibi with tons of evidence, pictures, video clips, receipts, passport stamps, and the like. The judge, however, looked at this evidence with suspicion that the senator could have had a hand in their spurious prodution. The case is now on appeal and observers believe that Mr. Ongkiko will score an upset when the case is reviewed by the higher courts. Mr. Ongkiko always taught his lawyers the maxim "assume that you will lose." Thus, his trial technique is always cautious and very careful with what goes into the record. His presentatiom is very thorough and his trial and argumentation skills beyond compare. He is hands down the best trial lawyer there is in the Philippines today.
NUMBER 3
TONY CARPIO, FRANCISCO VILLARAZA AND AVELINO CRUZ
The above lawyers belong to the most powerful law firm in the Philippines today. Individually, they can land on any one's top ten, but together, the three lawyers are best known for building a formidable private legal institution which easily puts them on a three way tie for number 3. The group's star first shone after Mr. Carpio got appointed as presidential legal counsel by Pres. Fidel V. Ramos. Villaraza and Cruz were left to mind the Firm as Tony Carpio led business to the Firm's door. In the six years that Mr. Ramos was president, Villaraza and Cruz handled many intricate and complicated legal projects. Being brilliant minds in their own right, coupled with a bevy of young and agressive associates, most of which graduated with honors from the nation's top law schools, at their disposal, Carpio Villaraza and Cruz met the challenge of being at the prime spot of the Philippine legal world. Upon the election of Joseph Estrada, the three re-gouped and re-emerged in the impeachment proceedings with their most seasoned litigator, Simeon Marcelo, leading the attack as he conducted the direct examination of the whistle blower and star witness Ilocos Governor Luis Singson. Now, in the era of Pres. Gloria Macapagal, Tony Carpio sits as the youngest member of the Supreme Court and is certain to outlive everyone in the 15-man court and to become Chief Justice one day. Avelino Cruz is the Chief Legal Counsel of the President. Simeon Marcelo is serving seven years as Ombudsman. Only Francisco Villaraza is left to hold the fort. But having a key person in the most powerful offices of the Philippines, the Firm can dare say that it can solve any legal problem endorsed to it for appropriate action.
NUMBER TWO
PROSPERO CRESCINI
I have always maintained that lawyers are like guns. Some guns you use for keeping your house protected. Some guns you use for big battles.In this regard, Atty. Cresicini is a bazooka.He is a veteran slugger of the court room. No flashes. No frills. Just pure legal brilliance and hard work. The fighter of hopeless causes, his most famous client is Congressman Jalosjos, the congressman who had sex with an 11 year old girl and was convicted of statutory rape. That case was tough and only Atty. Crescini had the guts to fight it out to the end. Nowadays, Atty. Crescini is the trial lawyer of former Philippine President Joseph Estrada. If Erap didn't stand a chance with his former lawyers, Atty. Crescini might just be Erap's beacon of hope. Atty. Crescini has mastered the science of of litigation, the elements of style, and the winning ways. His trial technique can be compared to Clarence Darrow. Hands down, he is the Philippines's number 2 best lawyer.
NUMBER 1
ESTELITO MENDOZA
It is a testament to this lawyer's great abilities that it has been 17 years since the Marcoses were thrown out of power and the Philippine Government, with all its resources, consultants and thousands of lawyers, has yet to win a single conviction against any of the members Marcos family or cronies.His grasp of Philippine law in most areas of practice is deep, considering that he served for many years as Pres.Marcos's chief lawyer. As Pres. Joseph Estrada's impeachment lawyer, he showed very fine lawyerly habits under the most extreme pressure ever imaginable. It is also a testament to his abilites that most of his law clerks are now members of the Supreme Court, Court of Appeals or are occupying chief offices in the Philippine Government. In normal trials, Atty. Mendoza's presence can best be described as electric and bring people to the gallery as if trials were a boxing match. It is no wonder that Atty. Mendoza handles only the most important cases of the most important personalities in the Philippines today.
Update:
Check out www.legal500.com. The list they have of the leading practitioners in the Philippines are expanded. Some of my Top Ten not are there. They missed Nicanor Gatmaytan, Carpio, Villraza and Cruz and Prospero Crescini. But I maintain them here.
Also, the liigation group of my former law firm PICAZO BUYCO TAN FIDER & SANTOS landed on the top of Property and Construction practice areas (after all these years) and even made it to the list of Dispute Resolution practice area (after being ignored for a long time). The principal reason is the big construction arbitration case we handled last year for a property giant. Well, that's cool.
Legal500 also cited several of the partners of the firm for their excellent work such as Purisimo Buyco for dispute resolution, Alex Erlito Fider for Telecommunications, Gemma Santos for mergers and acquisition, Estrellita Gacutan for banking and Cynthia Literegalde de la Paz for capital markets. Actually, if they had investigated further, they would have realized that the other partners of the firm also deserved a spot in each of the practice areas. If I were to add a second list of Top Ten if will be filled up by partners from PICAZO. But then again, people will probably think I'm not being objective.
On My Own
Today, I tendered my resignation from the Firm. Seven years -- that is the exact time that it took me to decide I had enough. In that seven years, I grew from an over-eager, idealistic, hungry and aggressive young lawyer to an over-eager, idealistic, hungry and aggressive old lawyer.
My apprenticeship is done. I had the great privilege of working for a top gun Makati law firm and learning the tricks of the trade. I learned why law practice is different from law school. I learned that law and justice are two different paradigms. No mas. Tapos na. Henceforth, I am only working for myself. Like Kobe Bryant graduating from high school, I am now in the play for pay league. Like the Tans resigning from a Mcdonald's restaurant, I am resigning to put up Jollibee. I am no longer employed and vow never to be employed again.
I am joining a Bey Blade tournament with my two sons. I am bringing my wife to see Lord of the Rings. I am going to write my first law book. I am going to teach my first law school class. I am going to get paid by my own client. I am going to be my own lawyer. It is going to be great.
So help me God.
On Being in Government
We have recently been appointed as legal consultant for the National Food Authority. The appointment allows for free practice outside the NFA; thus, we will be insulated from the financial constraints usually associated with a government job. It does not mean, however, that it is going to be a free ride. There is much work to do. We have to help run the law department of a PHP 7 Billion corporation that controls the food supply of the Philippines. On top of these, we have to deal with stuff like protocol -- i.e., before we can talk to Mr. C, we have to talk to Mr. A and then to Mr. B-- and a resident auditor from the Commission on Audit. Well, that will keep us honest.
It is quite interesting to know that in spite of the fact that the pay is low, being in givernment requires having to deal with regulations as expansive as outer space -- from rules that prohibit the use of photocopying machines unless your bring your own paper to laws that require the filing of a statement of net worth the violation of which can send one to jail.On top of that being in government compels me to do the thing I dread the most -- riding an elevator run by the government. All these years, I've managed to avoid using government elevators by taking the stairway. The fear springs from my impression that government buildings in the Philippines are poorly maintained, if at all. There is no budget for that or if there was, it was used for something else or by someone else.Thus, government elevators are rickety, shaky and noisy -- you can almost hear the cables snap. I dread government elevators so much that I had gone as high as the sixth floor using the stairway. Unfortunately for me, the NFA office is in the 10th floor and I don't think I'm physically fit for that kind of action.
But I sincerely hope that this stint will be spiritually fulfilling. As I reported for work this week, for example, I was just in time to help out in a case that involves millions of government money -- these are millions of pesos that would be use to buy cheap rice for the people -- not a bad way to start this budding career, isn't it? Not bad at all. I hope that compensates for all the cruel things I have done as a commercial law and labor litigation lawyer -- like firing hundreds of people. I regretted that so much that I'm beginning to think that there is a special place in hell for labor lawyers who fired poeple for a living -- something like a government elevator that keeps going up and down with an operator with a radio that keeps on playing Ted Ito songs. Maybe being in government is my salvation. It is just queer that it looks very much like the hell that I imagined
LIVIN' LA VIDA LAWYER
Businessweek's New Idea No. 19 is called "Rethinking the Rat Race" written by Diane Brady. The idea is to give the workers more flexible time at work, to focus more on the results and not on hours spent on the office. Given that new technology has given everyone the opportunity to be productive even if he is at home with the family, the idea of allowing the worker to balance his time with work and life will result in more productivity. In addition to this, the idea is also to give workers more vacation time to allow them to refresh more often and not be overburdened by work.
I think this is the best idea in this Businessweek series. I am particularly concerned that I may have become too workaholic to enjoy life. My typical day usually starts at 5:30 am to check email, do routine paper work and pleadings. I do this at home with our home computer. I have breakfast with the kids and my wife at 8:00 am and I'm off to work at 9:00 am. If there are hearings I have to attend, everything gets pushed back so I can be in court at 8:30 am.
The entire morning is then spent either on hearings or meetings. Lunch gives me time to grab a magazine or surf the web while eating, assuming that there are no lunch meetings with clients. Then, I'm back on my desk at 2:00 pm for what I call the "Assault from All Sides". This is because I have to juggle with phone calls from the land line and the cellular phone, follow up from bosses and co-lawyers barging in through the front door, email popping in through the LAN, and text messages being received by my GSM cellular phone.
Everything subsides at around 5:00 pm when I take a break for snack. At 5:30 pm onwards, the real hard paperwork and research is done. If I'm fast, it's all over at 8:30 pm during which I go home to have dinner with my wife who often has already eaten by that time. If, however, work is still not finished by 8:30 pm, the time extends all the way to the wee hours of the morning. I only break off for an hour so I can go home and finish the work in our home computer.
In the last three years, the longest break I took was seven (7) working days on Paternity Leave to take care of my newly born second son Hans. Although we are allowed 15 calendar days of leave with pay every year, I haven't used it at all. I don’t know why. I guess I'm enjoying myself too much.
You think I have a problem? Take a look at the other lawyers of the Firm. Some of my co-lawyers work all the way to 11:00 pm or midnight on a daily basis and are back at 8:00 am the following day. Most have not taken longer leaves than I have. In my seven years in the Firm, I was able to take short breaks to date, court my wife-to-be, get married, and have kids. Some guys here have not found time to do that. As a result they've gone past their forties and they're still single and unattached. This is not to say that they are unhappy or are less of a human being than anyone. This is just to say that this is the kind life the lawyers in our Firm live.
But looking at how I've been all these years, I know I've missed a lot of things with my family because of work. My favorite grandmother died two weeks ago. My deepest regret is that I didn't find time to visit her in the faraway province of Calatagan Batangas in all the three years that she wished to see me with my kids when she was still alive. When she was buried last weekend, I brought my kids along to witness the interment. But I guess she's no longer around to appreciate that.
It is true, nobody in his deathbed ever wished to have spent more time in the office. Life is short. We can't spend it all working. We can't spend it all having fun either. That's an awful deal. But it doesn’t get better than that.
The old work paradigm is to spend most of our quality hours at work. Who was it who said that life is like a game of cigars. If you smoke the most number of cigars, you win and your prize is a box of cigars. Isn't that much like the work ethic that we have lived? Work hard in the game of life. If you win, you get more work.That doesn't sound like a fair game, does it?
Now in the information age, the "in" thing is to spend more quality time with our families. Who cares if you've won the biggest case in the world, if you can’t even play with your kids (worse if you can't even have time to have a kid?) What is there to be happy about at the end of a long day when all you come home to is still your work? Work hard. That's ok. But live life. That's the only way to play this game. I am a non-smoker but if you have to compare life with a game of cigars, I think the object of the game is not to smoke the most number of cigars. And the prize is the game itself.
THE "S" WORD
Businessweek's Idea No 2 is called "The Mea Culpa Defense" written by Mike France. The article is straight forward in suggesting that businesses should be ready to admit liability if they have committed a wrong. The boxed summary says it well, "The instinctive reaction of executives in times of scandal is to deny, deny, deny -- then clam up. In many cases, the smarter response is a heartfelt apology." .
After reading the article, I remembered the dozens of cases that I've handled that shouldn't have reached my desk had the client only thought of saying the "S" word. Unfortunately, common business sense looks upon the "S" word as a sign of weakness that precludes any semblance of defense in the event of litigation. This is, of course, legally sound as an apology can amount to a confession of liability and no lawyer would be happy to accept a case where he has little room to maneuver a dismissal.
There is a story, however, of a Filipino immigrant in the US who was a victim of medical malpractice that caused him to lose his two fingers. He approached a lot of lawyers in the US who declined to accept his case allegedly because no doctor would testify against a fellow doctor. Yet, he struggled to find that lawyer, knowing deep in his heart that there is someone who can fight his just cause for him in that foreign land. True enough, after a long time, his son found the doctor-lawyer who was even willing to take it on a contingency basis. After months of litigation, they were awarded a hefty sum for the malpractice. The man felt vindicated not only because he succeeded in his quest to find justice for his predicament but also because he was able to prove that all the previous lawyers he consulted were wrong about his case.
Then right after the decision was handed down, the guilty doctor approached his former patient and said, "I'm sorry."
And then the patient cried, "All these years, that is all that I wanted to hear from you."
Until now, as the story is being recounted to me by the man, he gets misty eyed.
This is concrete proof that the "S" word is not really a bad idea. In the world of torts, the apology is the wild card that can throw a quick spin in any litigation. If things work well, the case can be settled with not a penny spent because of the apology. If things don't, then the apology can be a blank check payable to bearer. It takes character and a strong sense of justice to make that decision. Unfortunately, it is very hard to find any man of that make nowadays.
The Good Lawyer
Businessweek's Idea No. 23 is called "Don't Kill All the Trial Lawyers" written by Mike France. His thesis in this article is given that regulators and politicians have failed in their duty to protect the investing public from corporate crooks, it is up to the lawyers to put the hurt on corporate miscreants.
Reading this article made me realize how powerful the legal profession is in society. While the lawyers have contributed much to the corporate mess that the US is experiencing nowadays, it is also the lawyers who have the power to put some order into it. That is why history has this sort of love-hate relationship with lawyers. Nowadays, it is on the love side because the lawyers are the ones pushing corporate America to reform (what with the hundred of class action suits being filed left and right and the threatening millions of damages). But people seem to have forgotten that it was also the lawyers (along with the executives and accountants) who conceived and implemented the grand scale fraud in the Enron scam.
Why is this so? In the Ateneo Law School where I studied, there was an attempt to teach law along with Christian values. They thought this was possible by adding some one unit subjects like Theology and the Law and Social Philosophy to the regular law curriculum. The academic thinking is that the law is merely a technical tool, which is value free. Thus, value education should be separately taught through a separate subject.
The idea had some sense. Unfortunately, there was an open resentment to it because the one-unit subjects were eating up the students' time for the law subjects that students believed were more important. Further, the professors could not teach values on a one-hour a week format. I do not know what happened to the Ateneo after that but I know what happened to me.
In my almost seven years of practice three things I've learned as a lawyer trying to make sense of chaotic legal order:
1. A lawyer cannot be rigid about his values.
The Philippine system is so corrupt that if one were to be strict about his values, he'll never accomplish anything. One of these days, some values have to waiver. To achieve legal purposes, one favor or another that will compromise one's value has to be made. That's how it is.
2. A lawyer should know the limits of compromise.
There is a hierarchy of values and lawyers must always make sure that this hierarchy of what is more important is firm in their minds. For example, I am willing to part with some cash just so my case would be set early in the court calendar, but I am not willing to pay a judge for my client to win. That is where I draw the line. The logic is simple; my client will have no use for me if my case is always at the bottom of the heap. I owe the client that much to make sure my case gets priority. But I am not going to pay someone to win. I don’t play that way.
3. Hope.
How can one tell that he has compromised too little or too much? No one can tell. Very often in making the moral decisions that have the interplay of the two principles above, the lawyer will be faced with a dilemma. Failure, morally and financially, is a nagging fear. A lawyer's only salvation is his hope that he is doing the right thing.
Relating the principles above calls to mind the story of St. Thomas More. A successful lawyer in his time, his biographers took note of his practical shrewdness and his being responsible for, among others, the banning of heretical books and the execution of authors who had heretical beliefs. But Thomas found occasion to draw his limits when he was made to choose between loyalty to his king or his God. The stakes were high. King Henry VIII wanted to validate his second marriage to Anne Boleyn. To complete the King's desire to do this, he needed Thomas to take the Oath of Supremacy which meant that the King of England was supreme in the Church of England. More's dilemma was to take the oath that would have repudiated papal supremacy over the Church of England or mince the words of the oath to please King Henry VIII and retain his power and wealth like what the rest of England did. But to Thomas, what was being asked from him was more than just an oath but a repudiation of his own conscience and the truth. All Thomas had to do to retain this power and glory was to profess the King of England as the head of the Catholic Church in England. But to Thomas the obvious fact was that only the Bishop of Rome had the sacred mandate from Christ Himself to run the Church, through succession of Peter. Thomas knew as fact that only God could appoint the head of His Church and this had already been done once, there could not be two heads. Thus, he refused to take the oath. To him, this one oath that the King wanted him to make did not have a price. The King convicted him of treason and had him beheaded.
St. Thomas More is considered the patron saint of all lawyers. Reading and writing about him makes me proud to be a lawyer. The Ateneo simply should have taught us the life of St. Thomas More and it would have solved the problem of values education in law school. Values in lawyering? St. Thomas More's last words said all that was needed to be said, "The King's good servant, but God's first."
PROFIT WITH HONOR
Businessweek came out recently with a special edition entitled "25 Ideas for a Changing World". The issue is very interesting so I was quick to get my copy and read the pages with the thought that the thing can give me enough material to blog about for the next few weeks. Unfortunately, the website edition is gone. So I can’t link to it.
Nevertheless, Idea No. 1 is called, "After Enron: The Ideal Corporation" written by John A. Byrne. According to the article, with the Enron fall out, corporations will go back to the values of trust, transparency and accountability. Corporations will acknowledge that a company's viability now depends less on making the numbers at any cost and more on the integrity and trustworthiness of its practices.
Well, frankly speaking, I didn't know that this is a new idea. The Enron culture was and will always be considered an anomaly in corporate governance and investor relations. The values have always been there, except that unscrupulous individuals have gotten away with messing up with it for a few years. But now that the law caught up with them, we are quite happy to know that values have been affirmed. For indeed, what every corporation boils down to is that other people's money are entrusted to certain people in order that they can make it grow. In every relationship involving that sort of transaction, we are talking about not just making that money grow but also doing it with the knowledge that it should be done with the values of trust, accountability and transparency.
I didn't go through business school (my college degree is one for philosophy and my law degree is not exactly a business degree although now I only practice mostly commercial law). However, I imagine that every business course should have a course on Business Ethics -- and I am not just talking about how not to pirate business.
Business Ethics should always be grounded on the maxim "Profit with Honor." In the Philippines, sadly only one company used to live this ethos -- San Miguel Corporation in the time of the late Andres Soriano, Jr. During his time, San Miguel Corporation was never involved in any tax case and it did not have labor problems. Its investors were happy - in fact too happy that it was too hard for the late strongman Ferdinand Marcos not to resist to acquire it through a forcible takeover during martial law.
Profit with Honor. That means money through honorable means. No deception. No misrepresentation. Full disclosure. No cheating on your workers. No cheating on your investors. No cheating on your consumers. What's so new about that?
No Hope in Concepts: The Reason I Stay Away from the Stock Market
I have to credit my metaphysics teacher Rev. Fr. Roque Ferriols, S.J., who instilled in me the habit of asking "Meron ba?" In English, the nearest translation I can think of is "Is it there?" Does it exist or is it just hot air? The habit is based on the principle that there exists a reality. And human beings that we are, we nestle in reality. That's where we live. But there are a lot of non-truths out there that deceive us in to believing what is not reality.
And these non-truths are not necessarily lies or accounting scams. Non-truths can be innocent things like concepts. Concepts are products of our minds. They come out of our minds based on our experience of reality but concepts are not reality. The function of concepts is to point us to reality. If we say moon, for example, we have a concept of the moon. But the word moon itself is not reality. The real moon is up in the sky. To be fascinated with the moon, is to be fascinated with reality. That looks okay. But to be fascinated with concepts -- such as earnings per share -- is to be fascinated with nothing. That is not okay.
The stock market is one place where everything is concepts -- and not just concepts but concepts of concepts of concepts. Take the concept of debt to equity ratio for example. It looks simple. Conventional wisdom tells us that a company with a high debt to equity ratio means it has more debts than capital. This means a large part of its costs will be interest payments. A company with low equity ratio is one with less debts than capital. Interest might not be eating up its profits that much. So which one has better prospect of making more profits?
Dig deeper and see where the labyrinth of concepts bring you. Debts: What does the company owe? Well -- loans from banks, advances from stockholders, bonds, commercial papers, promissory notes, purchases on credit, etc… still with me? What is capital? Money, property, goodwill? How do you value this money? Based on inflation? How do you value property? Based on market conditions? What is the market condition? Then, we realize a lot of things are not really clear. How does one classify, for example, between a debt and equity. Preferred shares -- is that equity or debt. Convertible bonds -- is it debt or equity. What about warrants or option contracts. Then we find out that a lot of the underlying items are based on opinions and opinions no matter where they are coming from are not truths. So we ask, is it really there? Meron ba?
Just look at the moon. No matter what the people say, you are sure it is there. Unlike the stock market, the moon is not susceptible to the whims of the crowd. In the stock market, if the crowd believes there is a value, everything goes up. If the crowd believes there is no value, everything goes down. Then, creative accountants and corporate honchos with appetites for large sums of money (and everyone in the stock market has that appetite) start playing around with the concepts and masquerade losses with profits until they are caught. Then, everything crumbles. People realize all they really had was concepts -- concepts of concepts of concepts.
I never thought of playing with the stock market crowd. There are many people way ahead me who drumbeat the perceptions of this crowd. No hope it putting one over them. No hope in concepts.
So, I stay away from the stock market. The truth is hard to find there -- with or without accounting scams.
BIRTH CERTIFICATE 101
by Marvin B. Aceron and Ces L. Aceron
Some accomplish it haphazardly, while others fill out the blanks with careful attention to detail. Either way, filling out a birth certificate form for a newborn is an experience most parents don't really recall much about or even bother to mention over coffee breaks. Let's face it, it's routine, and downright uneventful. But here's a question for you, if it isn't something somebody would bother getting a souvenir photograph about, why do some people spend thousands of pesos rectifying some infinitesimal discrepancies in their own birth records today? (And they're not even the thugs we'd think them to be, but quite ordinary folks.) It's because the birth certificate remains to be one of the most important legal documents of a person. In this regard, we here are some tips in accomplishing your child's birth certificate. We sincerely hope this information will prove handy in avoiding future legal problems.
1. Avoid long and complicated names. If you decide to give your child more than two names --say, Jose Amado Francisco -- chances are he will drop one or two of them in the future. Once this happens, the discrepancies in his records will arise. It may then be difficult and expensive to straighten the discrepancies by that time. Thus, long names are not advisable. As for complicated names, your child might be able to spell them correctly, but others will not be as careful. Take Marvin for example. When he applied to take the bar exams, his first name "Eldrige" was mis-spelled as "Eldridge" by the bar confidante. It was just a few weeks before the bar, and he had to take the trouble of explaining the discrepancy to the authority or face the prospects of not being able to take the bar at all. (Take note that while Eldrige is not even that complicated, people have already been having trouble spelling it ever since he was a kid.)
2. Accomplish the birth certificate form as soon as possible. Have it in your mental list of things to do after delivery (somewhere between announcing the news to friends and settling hospital bills). You see, the danger in not securing the birth certificate as early as possible is that it might be forgotten altogether. Take the case of former presidential candidate Mayor Fred Lim. He was already a law graduate when his birth certificate was secured, not to mention he also had to do it himself. Worse, he was accused of falsifying his birth certificate to hide his ancestry. This could have been avoided if the birth certificate forms were accomplished earlier on by his guardians.In some hospitals, accomplishing the birth certificate form is part of the routine services they provide. However, if the mother gives birth out of the hospital or in a hospital that does not provide this service, the responsibility of accomplishing the birth certificate forms rests solely on the parents. It should be done immediately.
3. Make sure all the details in the birth certificate are accurate. Keep in mind that the birth certificate should state true facts. Any false statement in the document is likely to lead to trouble for the kid, not to mention criminal responsibility for the parent who filled out the form --you can be charged with perjury. Asi Taulava, the basketball player, was deported because his Filipina mother's birthplace (which is Samar) was indicated as Tonga in his birth certificate. Thanks to his lawyers (which happens to be the law firm where Marvin works for) he is back playing in the Philippine Basketball Association, but not after so much trouble and expense. The same kind of problem will be faced by all the illegitimate children who were registered as legitimate by their unwed mothers. The birth certificate is only a record of the details about your child. It is not meant to correct deficiencies in life, so be true.
4. Proofread the birth certificate at least five times before it is signed. This is the key to most of the problems in the birth certificate. Unfortunately, when it is realized, it is too late. The birth certificate should be read over and over until the document is perfect. Check if the inputs are correctly spelled. Look for the missing letters, the wayward commas, the excess periods, etc. A missing letter or an extra one can cause you thousands of pesos in legal expenses in the future. If your find errors before the form is signed, demand that the form be re-typed. Never mind if the typist is nasty. There is no compromise to perfection in these kinds of documents.
5. Stick to what is written on the birth certificate. The only way to change the details in the birth certificate is through a legal proceeding: administrative or judicail -- either way it is cumbersome) . If there are mistakes to be corrected, if should be done as early as possible before more complications arise. Otherwise, the details in the birth certificate should be used consistently in all of your child's legal papers. The same details should appear in his school records, passport, visa applications, medical records, applications to take board exams, insurance and the like. Any discrepancy can be the source of legal trouble.
6. Keep extra certified true copies of the birth certificate. The original copy of the birth certificate will be kept by the Register of Deeds. You should however keep your own copy. But not just any photocopy. You should ask for copies which the Civil Register will certify as true copies. As long as they are certified, they will be treated like the original by all institutions which will require them from your child. Keep at least ten copies in your files to avoid going back to the Civil Registry more often than you like. An immediate need for you would be in claiming the SSS/GSIS maternity benefit. As for your kid, for starters, he will be needing them when you begin applying him in schools, or in signing him up for sports competitions where there are age requirements.
So the moment that seemingly inconsequential piece of paper is shoved into your hand, don't fill it out in haste. Sit down. Think carefully. Remember, it shouldn't have to take the pressure of some board exam or election requirement to shake you into realizing that the birth certificate is indeed a serious document.
NIGHTMARE ON THE EVE OF THE BAR EXAMS
I was in a rickety condo unit in Makati with only coackroaches
keeping me company. I called for pizza delivery for dinner from
Shakey's-- Manager's Choice with extra cheese, Coke and Chick n' Chips.
There was enough food even for breakfast the following day. I found it
too pricey for my budget at five hundred bucks, but I figured, the bar
exams was my day of judgment. If I flunk it, it would be my last pizza
forever. So who cares?
A classmate called to tell me that they would pick me up as early as
5:00 am. It was neessary to come early, according to her, to avoid the
traffic build up brought about by the annual Alay Lakad (Walk for
A Cause) Project that would pass at La Salle Taft Avenue where the exams
will be. No problem. I had no choice. Either I went to the bar with
obsessive compulsive classmates or I risked missing it altogether with
Manila's unreliable public transport. I had no time for those little
dilemmas. I figured I needed at least six hours of sleep to have an
optimum performance for the eight hour exam. There was no better
preparation than that. Besides, what I did not know on the eve of the
bar exams, I would never know in time for the actual exams. To be ready
by 5:00 am, I needed to wake up at 4:00 am. That meant I had to be
snoring by 10:00 pm.
After dinner, I finished memorizing a chapter on Atty Nachura's
reviewer on Political Law about diplomatic immunity. I scanned the other
pages that I haven't touched and decided It was time to sleep.Yet. my
gut was crying for more. It was telling me that my knowledge of
political law was vanishing slowly and the only way to stop it was for
me to keep on reading until I fell asleep. So I hit the books again.
But, very little was sinking in. I ran my mnemonics devices to see if I
can rattle off principles that I had memorized. No good. I turned on the
air-conditioner to cool off. The motor was too loud. I turned it off.
What do I do now? It's 11:00 pm. So much for the six hours of solid
sleep. My professor gave us one tip that afternoon. "If all else fails,
try beer!" But, who was gonna get that beer for me? The cockroaches? I
remembered as a kid that I would make myself dizzy and fall asleep by
spinning around like crazy. So I spun around the room for five minutes
until I fell and threw up. But I was still wide awake. I tried music --
Mozart, Bach. But I had been listening to those guys the entire bar
review period that I had been numbed. They had very little effect on me.
No use.
Thereafter, it dawned upon me -- I was gonna flunk the bar. With very
little sleep, if at all, there was no way I could construct a decent
sentence. The exams for the day consisted of two sets of one hundred
(100) essay questions to be hurdled in four hours each set. No way was
anybody gonna pass that with less than six hours of sleep. I saw all my
four years of hard work studying the law flashing on my mind. The
episodes when I had flunked an exam were even in slo-mo. I knew I would
forever be labeled a bar flunker. What job would I get? Court sheriff?
It was done. The clock struck at 1:00 am as I decided I had lost it and
dozed off. Good night bar flunker.
That was exactly six years today (September 2001). Of course, I flunked the exams on that day. But I made enough points in the succeeding exams -- the Philippine Bar exams are held on all Sundays of September each year -- to give me a
decent passing mark. I knew better the following week. I downed a bottle
of wine.
Copyright 2003. Eldrige Marvin B. Aceron. All rights reserved.
GUIDELINES IN CHOOSING A LAWYER IN THE PHILIPPINES
by ELDRIGE MARVIN B. ACERON
Somebody once said that choosing a lawyer is like choosing a gun. You get the
big long AK-47s for big battles where the stakes are high and the caliber .38
for those of lesser scale where small is efficient. The comparison is quite
accurate. I say "quite" because there are notable exceptions. Sometimes you
may need a bazooka for the small case that has the potential of escalating to
a big case. Besides, not everyone can have the luxury of having a collection
of lawyers in her arsenal. Yet, the comparison emphasizes the most important
consideration in choosing a lawyer: you must have the right lawyer for the job.
But how do you know if you have the lawyer for the job? Here are seven basic
traits that I think are important in choosing a lawyer when you're suing or
being sued.
1. To begin with, you need a litigation lawyer. A litigation lawyer
is one whose work is at least 80% devoted to courtroom cases. I say 80% because
that means the lawyer is almost, if not totally, immersed in the litigation
environment. These are the lawyers with contacts with stenographers, sheriffs,
legal researchers, clerks of court, and even policemen -- the small guys who
do the real work and make the case progress. It can make a lot of difference
if your lawyer knows these small people.
In addition, you have to realize that litigation work is not taught in law
schools. Law schools teach only laws and procedures but not technique. Technique
is the key to making a case progress to victory. It involves getting the right
manner of drafting pleadings, asking questions, arguing in court, in order that
the judge will rule in your favor. A lawyer, even the bar topnotcher or law
school valedictorian, will never learn technique unless he is immersed in litigation.
More importantly, litigation lawyers can deal with judges. A lot of judges
have idiosyncrasies that need to be tolerated. Litigation lawyers who are used
to that can handle situations with these judges better than non-litigation lawyers.
They are less jittery, if at all, even in the face of the most obnoxious judge.
So don't take chances on a corporate lawyer, get a litigation lawyer.
2. Your lawyer should know how to communicate. Litigation is all about
persuasion. Persuasion rests on the skill of communication. If your lawyer can't
speak or write well, he is no good. Watch her English. If her P's and F's are
misplaced, get another. Ask her opinion, if you do not understand what she said.
Get another. If she is able to convince you, chances are she can convince the
judge. Get her.
3. Get a litigation lawyer who has handled a similar case in the past. It
only takes one case to make a field of law an area of competence. Five cases
of the same nature can make a master. If your lawyer has handled a similar case
in the past your lawyer is familiar with the horizon surrounding your legal
conflict and will be less likely to commit technical errors. She is a prized
possession.
4. Your lawyer should be accessible. You should be able to see her when
you need to. She should be able to respond to your phone calls and emails. The
best is someone who works next door. The nearer her office is to your office,
the better. Sometimes, cases can be as terrifying as a policeman knocking at
your door with a warrant of arrest. Your lawyer should be reachable during such
critical times.
5. Your lawyer should have time for you and your case. Your lawyer should
not be too busy with other work. Otherwise, she is bound to neglect your case.
Ensure that your lawyer is not taking more work than she can handle. Beware
of the overworked lawyer. Their type get burned out and lose their passion for
their work. They are more prone to commit mistakes because they do things in
a rush. Your lawyer should only have enough in her hands a given time. If you
think that se has more work than she can handle, go find another.
6. Your lawyer should be someone you can trust. Beware of lawyers who
volunteer connections to broker deals with judges before they can even discuss
the merits of the case. They will hit you big time and you will end up with
a losing the case. Remember, even if you succeed in bribing judges, the justice
system is bound to get you somewhere along the judicial hierarchy. If you have
an awfully bad case, you are bound to lose no matter what. So don't trust lawyers
whose primary practice is influence peddling.
7. Your lawyer should be someone you can afford. Do not get indebted
to a lawyer. Your lawyer will not hesitate to drop you if you get into a situation
that you are not able to pay her and she knows when to do it There are expensive
lawyers and there are free lawyers. The quality of service is not necessarily
linked with the price. Get someone you can afford so you will not get indebted.
Big Law Firms vs. Small Law Firms vs. Solo Practitioners
In choosing lawyers, one of the most common decision points is whether to get
a big law firm, a small firm or a solo practitioner. The following will help
you navigate through the maze and hopefully get you the right lawyer for the
job.
Where you can find them.
In the Philippine legal circle, the lawyers are either practicing with big
law firms (about 30 to 100 lawyers), small law firms (more than two but less
than 30 lawyers), or alone. In the cities, you can find the law firms. The big
ones are mostly in Makati and Ortigas. The small ones are in other parts of
Metro Manila. Cebu and Davao have satellite offices of the big firms in Makati.
The single practitioners are often found in the provinces. The Lawyer's Review
has a listing of law firms and solo practitioners. It includes email, telephone
and office addresses. Ask for an appointment and ask them how they categorize
their law firms in terms of the above.
It's still the Seven Traits
In shopping for legal service, the ultimate standards are still those seven
traits mentioned above. You may have hired a big law firm, but if the lawyer
assigned to you happens to miss out on the above traits -- like for example,
she's got too much work and is not easy to access, then your illusions of having
a top gun law firm is nothing. Thus, in the primary consideration is still the
above seven traits, big firm or small firm.
The Edge of the Big Law Firms
The distinction between big and small firms is, however, relevant when you consider
the expanse of your legal requirements. Big law firms normally have an expert
on every legal aspect of litigation. If your case involves an intricate web
of estate, corporate, criminal and civil issues that also involves appearing
before different courts, the big law firms may have better resources to help
you. They have more lawyers who can be pulled into the team even just for advice
when litigation begins to thread on unfamiliar grounds. However, if your case
involves a simple violation of bouncing checks law, hiring a big law firm may
be inappropriate.
The Edge of the Small Law Firms
If you are the type who likes to work with people they can be friends with,
the small law firms are likely for you. Small law firms have more time to be
personable with their clients. The premise is small law firms have a smaller
client base, though not necessarily smaller revenues. Thus, they have more time
for customer relations. You call them after office hours for a drink, they'd
be there for you. Moreover, they would not mind you calling late since their
schedules are not as structured as the lawyers in the big firms. However, the
impression that they will charge less as against big law firms is not a generalization
that can be made easily. We will discuss this later on this chapter. But for
the moment, disengage your minds from the idea that a small law firm will charge
you less than big law firm for the same work. It is not the case.
Outside the Metropolis
If you have to litigate outside Metro Manila, you may wish to consider the
local lawyers instead of bringing in your lawyers from the firms. To begin with,
city lawyers will charge you for the travel expenses that can amount to a lot.
You save on that with local lawyers. Second, local lawyers are more familiar
with how things work in their courts. They know what makes the judge and his
staff tick. This will come in handy in situations when distance is a disadvantage
-- e.g. a TRO on its way to your doorstep and you don't even know it. But be
sure to ask around for the local superstars. There are a lot of good practitioners
in the provinces. You will be surprised. However, if you cannot find the seven
traits in any of the local lawyers, go for your trusted big law firm lawyers.
Your savings will amount to nothing, if you lose your case anyway.
Appellate Proceedings
In appellate proceedings, I believe the law firms have the edge as against
the sole practitioner. The big law firms usually assign three lawyers to work
on the case. The junior associate does most of the legwork. The senior associate
is the operator -- the lawyer who can work on your case from the research to
the proofreading of the final pleadings. The partner is the strategist, the
man with the sage advice and the person who polishes the final product. Thus,
the chances of error are minimized as more lawyers get a chance to review the
pleading before it is filed. Thus, the bigger the law firm, the bigger the expectation
for the firm to come up with good and well-researched pleadings. This will then
enhance your chance of making it on appeal.
Cases that You Should Refer Only to the Experts
No lawyer can say that she can handle every case referred to her. Law touches
upon almost every aspect of human life that it is impossible for any lawyer
to exhaust it. While most lawyers can handle mainstream litigation, such as
land disputes, collection cases, fraud, murder and corporate disputes, certain
fields of law are easily beyond the grasp of most lawyers. We believe that at
least three fields of law should be left to the experts. By “expert”, we mean
that the lawyer has spent a major part of her professional life on the field.
She should be so immersed in the field that she has ready answers to problems
that non-experts can take days to even understand. These fields are as follows:
Tax and Customs Litigation
Tax and Customs litigation deal with disputes relating to tax assessments,
tax refunds, tax protests, as well as tariff and customs disputes, including
forfeiture proceedings. This field should be left to the experts because it
is a universe in itself. Even the simplest of issues in tax and customs litigation
will require thorough study from any practitioner. In addition, the field is
highly technical. Legal maxims are mixed with percentages and mathematical formulas
that ordinary lawyers will not easily comprehend. One nuance that we learned
the hard way, for example, is that all pleadings filed with the customs collector
have to bear a documentary science stamps tax. Otherwise, it would be disregarded.
Who would know that but only an expert?
Election Law
Election law requires a lawyer who has a thorough knowledge of election laws
and procedures and usually a strong disposition. Court jurisdiction and time
periods for filing of pleadings appeals and other documents are often confusing
and tough. Many election protests have been lost on technicalities because counsels
are not familiar with the basic election laws. In addition, the election lawyer
often has to deal with a roomful of people and confused election registrars.
Your election lawyer should have a loud but not annoying voice to be convincing
in this situation. In addition, deadlines in election disputes are really tight.
Sometimes your counsel will only have the following day to file her protest.
Only lawyers who are used to this environment can deliver the goods to their
clients.
Admiralty Law
Admiralty deals with the law of sea transportation. It has been around for
centuries. Yet, demurrage, salvage, collisions and other disputes relating to
admiralty are not easy to understand and have been mastered by only a handful
of practitioners. This should be left to the experts.
The common element in the above fields of law is that they not only have a
different set of laws, they also have different sets of procedures in resolving
disputes. We find that their procedures as complex and uncommon that only experts
in the field may fill at ease in litigating those cases. While you can take
a chance on a neophyte to handle any case falling under the three on your behalf,
the risk of failure is going to be great that you might as well not have lawyer
at all. You don’t want your lawyer coming to you with a decision that says you
lost because your lawyer missed one rule in the book, and not because of lack
of merit. It is one of the most agonizing losses you will experience in your
life.
HAGGLING ON THE FEES
We are now ready to discuss one of the two other special considerations in
choosing a lawyer: the professional fees.
No Standard Fee Structure
Did you ever wonder why lawyers do not have common fee structures? Some charge
by the hour, some request for acceptance fees and bill per court appearance,
others bill by contingency in terms of percentage of the award. The worst kind
bills all. The reason is there is no such thing as a standard fee structure.
Everything is relative to the lawyer. So a lawyer can charge you a million bucks
for the same work for which another will charge you only Php 10,000. This is
so because the lawyer's primary inventory (if you, for example, treat his business
as a store) is her time.
Time: The lawyer's most valuable resource
Time is the most valuable resource that a lawyer needs for your case. If she
has a lot of it, then the cost for you to acquire her services may be cheaper
than another who has less. In addition, how a lawyer values her time is relative
to her own personal values and economic targets. If you are coming to her with
a work that will require her to leave her family for a month, she might turn
you down even if you offer her millions. If you have a single lawyer, however,
then you might be able to get her to do the job at half the price. This is also
the reason why we said earlier that small law firms do not necessarily charge
low rates. Small law firms may have chosen to stay small because the big clients
have already bought all of their time. So if you come to them for work, they
might charge you a lot higher as they have to make time for you and bump off
another high paying client. In Manila, big law firms have priced their services
based on the man-hours spent on the job. Yet, the man-hours rates are not the
same. Some law firms charge rates of partners equivalent to the rates of associates
in other law firms (how these law firms do it is a wonder of law firm management).
Moreover, standard man-hour rates, do not prevent the big law firms from discounting
or putting a premium on their fees. If, for instance, you come to them during
the off peak season (which is usually December to February), you might be able
to request for a discount on the fees as the demand for the lawyer's time are
not strong. In the same manner, however, if you come to them during peak season
(sometime in July and August), it will be difficult to get that discount.
Haggling strategy
Given the understanding that lawyers charge on how much they value their time,
you can be assured that a strategy to acquire an optimum price for the services
of your lawyer should be built around your assessment on the availability of
your lawyer's time and the amount of time your case will consume. Difficult
cases cost a lot because they take a lot of time to solve. Simple cases cost
less as they don't eat too much time. Yet, bear in mind, that that's just one
side of the equation. If there is a high demand for your lawyer's time, then
you can be assured there will be a premium on the fees that she will charge
you. Then, again if your lawyer's time is not in demand, should you be considering
her in the first place?
Other considerations: More Business
There are other factors that affect the costs of legal services. The cost of
overhead of your lawyer's office, for example, is one of these factors. The
impact of this factor, however, is not as great as compared to the impact of
time. Yet, one other factor that can have a potential impact in the lawyer's
fees is the potential of the case to open more business for the lawyers. If
the lawyers can see that your suit will, for instance, project her in the public
eye as an expert in a field of law and trigger a bee line to her office, then
you can expect that she can be more forgiving in her fees. In the same manner,
if your lawyer knows that you will have more legal problems and will need her
services regularly, you can surely request for a discount. In the office, I
have often remarked that the ideal client can best be described in two P's:
Paying and Perpetually in trouble. Paying -- because, of course, this is a profession.
Perpetually in trouble -- because that means the business will not end in one
case. (Ah! My kids' education is assured who needs pre-need plans?)
CONCLUSION
As I re-publish this piece written over a year ago, several NBA teams are in search for head coaches. What amazes me is that the teams' head honchos speak of a "gut check" before they make the decision to hire their head coaches. I have not been around hiring people much so I can't tell how exactly it works. But I guess, "gut check" says all that is needed to be said. You may want to consider this test after all of the guidelines have been met. Treat your prospective lawyer to dinner, observe him, see him in a more relaxed environment, listen to him speak of what he does after work, listen to his lawyer stories and take the "gut check" If it feels right, you have your lawyer. If it doesn't, just hope he doesn't bill you for the time that you treated him to dinner.
Copyright 2003. Eldrige Marvin B. Aceron. All rights reserved.
