Annotation Admission by Adverse Party
Annotation Admission by Adverse Party
Annotation Admission by Adverse Party
ANNOTATION
ADMISSION BY ADVERSE PARTY: ONE PROCEDURAL
ROAD LESS TRAVELLED
By
*
ROGELIO E SUBONG
_______________
1. Introduction, p. 533
II. Modes of Discovery, p. 534
III. Sanctions for Refusal to Comply with Modes
of Discovery, p. 537
IV. Nature and Rationale, p. 538
a) Definition, p. 538
b Nature, p. 539
c) Rationale, p. 540
V. Modes of Discovery in the U.S. and in the
Philippines, p. 541
a) In American jurisdiction, p. 541
i. Maryland doctor, p. 541
ii. Filipino seaman, p. 542
b) In Philippine jurisdiction, p. 543
VI. Some Pertinent Cases on Modes of Discovery,
p. 543
533
1. Introduction
It is ironic that some of the least discovered provisions of
the Rules of Court are those on the Modes of Discovery.
They are supposed to contain a cornucopia of procedural
gems that may be used to great advantage by a party
litigant. In law schools Modes of Discovery are studied and
memorized perfunctorily only for purposes of the class
examinations. Given the dearth of local jurispru
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b) Nature
What is actually the nature of these modes of discovery?
Modes of discovery is gaining wider use with progress and
advances in technology. When life was simple then, suits
especially civil suits did not require so much documents.
Perhaps in suits involving loan obligations a written
contract evidencing indebtedness and related documents
would have sufficed. Now with suits involving cases as
sophisticated as the antitrust complaint against Microsoft,
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A truce is no victory.
c) Rationale
In any case, with the expected discoveries from the modes
or processes mainly availed of extrajudicially, there is
either settlement even before trial or at the early stages
thereof when the parties upon knowing the indubitable
facts and documentary artillery of either side, would see
the futility of fighting. Then too, as there is awareness of
the position and documents of each other, surprises are
obviated and litigation is thus conducted in full
transparency, not in the dark, so to speak. The nagging
question is: Are Filipino lawyers ready for that?
American Jurisprudence 2d., then summarizes the
purpose of modes of discovery:
Generally speaking, the purpose of modern discovery is to assist
the administration of justice, to aid a party in preparing and
presenting his case or his defense, by enabling a party to narrow
and clarify the basic issues between the parties, and to ascertain
the facts, or information as to the existence or whereabouts of
facts relative to those issues. The discovery rules simply advance
the state at which disclosure can be compelled from the time of
trial to the period preceding it, thus reducing the possibility of
surprise, and the need to conduct a trial in the dark or blindly.
Discovery should expedite the disposition of the litigation, by
educating the parties in advance of trial of the real value of their
claims and defenses, which may encourage settlements, and
assure that judgments rest upon the real merits of causes and not
upon the skill and manuevering of counsel, although it has been
recognized that under certain circumstance liberal discovery
provision can be abused. (pp. 334335)
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b) In Philippine jurisdiction
In our jurisdiction, modes of discovery are hardly resorted
to by lawyers. They view this process not mainly as a
means to honestly effect the laying of all cards on the table
for both parties. They are rather used to discover the
weak points and inconsistencies of the opponent as well as
to impeach and discredit him and/or his witnesses during
the trial proper which is allowed though under the Rules. A
brilliant trial lawyer who became a senator and one of the
authentic heroes during the Marcos dictatorship was a
favorite speaker on trial technique at the UP Law Center.
This writer recalls reading one of his lectures on trial
technique, wherein he related how he used deposition to
get his opponent to make that crucial admission which he
would use during the trial proper. It took him three (3)
deposition days before the opponent lowered his guard and
made that sought for admission. He even dismissed the
rest of the questions he propounded for the last three (3)
days as basura until he hit that gold nuggets of admission
on the third day. This admission was presented during the
trial which effectively broke the case of the opponent.
What does this mean? It would appear that three (3)
days were purposely wasted and not put to good use for
discovery purposesbut as distracting preliminaries to
that crucial admission. In other words, deposition appears
to be abused, misused and unused in this incident. But that
is not surprising for that seems to be the attitude and view
of many of our lawyers. It seems that these modes of
discovery are not often resorted to for the purposes they
were conceptualized. Even Mr. Nizer in his 17day
crossexamination of Mr. Pegler in that libel case earlier
mentioned, made profuse use of the previous deposition of
the latter to contradict his testimony during trial proper.
VI. Some Pertinent Cases on Modes of Discovery
The few cases that reached the High Court on questions of
modes of discovery is a proof that they are hardly resorted
to by our trial lawyers. There is a stronger propensity to
immediately go into trial rather than engage into that
seemingly timeconsuming extrajudicial skirmishes that
may be also covered during trial.
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party. (Keeton, Trial Tactics and Methods, 1973 ed., pp. 420).
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b) Possible reasons
What could be the possible reasons for this lack of alacrity
to resort to Modes of Discovery by our trial lawyers? Let us
venture some reasons:
1. The strategy goals of modes of discovery appear to be
at crosspurposes with effective trial strategyTo
repeat, the discovery process aims to conduct trials
with transparency. There are also disclosures or
admissions on documents and facts from either
side. And the ultimate goal is to encourage
settlement and/or expedite the disposition of
cases. But will this kind of transparency sit well
with Earl Rogers, Clarence Darrow, Louis Nizer,
Percy Foreman, F. Lee Bailey and other famous
American trial lawyers? In the Philippines, we have
Don Vicente J. Francisco, Don Claro M. Recto, Sen.
Jose W. Diokno and others, who also cut that
dazzling persona of the consummate trial lawyers
who kept their battle plans top secret leaving their
opponent guessing and dumbfounded as they go for
the kill in the courtroom, so to speak
In other words, the modes of discovery
encourage the parties to lay their cards on the
table. On the other hand, effective trial strategy
encourages lawyers to keep their cards
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XI. Conclusion
Will the bench and bar hearken to the plea of the High
Court for more application of the various modes of
discovery? It has been consistent in ruling towards more
use of these modes. However, in the case under
Annotation the High Court sustained the Court of
Appeals which disallowed it being contrary to settled ruling
which
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