Judicial affidavits should be required after Pre-Trial

  • Judical affidavits are best submitted after the Pre-Trial.
  • It is ineffective and inefficient to require submission of judicial affidavits before Pre-Trial.
  • During Pre-Trial, parties may enter into stipulations to limit and guide the flow of trial via the Pre-Trial Order.
  • Thus, a judicial affidavit would be limited to the contents of the Pre-Trial Order.

It is has been over five (5) years when th Judicial Affidavit Rule was fully implemented in courts after pilot testing showed promising results.

At that time, there was clamor among court practitioners or litigators as to this added requirement as it will necessarily result in adding to the legal fees to be paid for the client for thr servies to be dedicated in making the judicial affidavit. Mind you, on average, it could take 2-3 days or even more, depending on the extent of the testimony and the complexity of the case. (Those who say they can do it in 1 day are amateurs and do not place any value in the quality of their output.)

However, rules are rules. Practitioners eventually integrated the judicial affidavit to their practice.

Often, the judicial affidavit is prepared weeks before the Pre-Trial as the affidavit is required to be submitted at least five (5) days before the said hearing date.

At this stage, the parties only have the complaint, answer, or reply as references to infer what would be the legal theory of the other. Accordingly, the lawyers of each side prepare the affidavits via a “shot gun approach”, as an opposing lawyer described it to me. I could only nod in agreement.

My opposing lawyer stressed that judical affidavits are best submitted after the Pre-Trial and the subsequent issuance of the Pre-Trial Order. He explained that the Pre-Trial Order would serve as the parameters as to how the trial will proceed, including what each other party will prove in line with their legal theory. The judicial affidavit will necessarily follow this flow.

I added, during Pre-Trial, parties are given the opportunity to stipulate or agree on certain points (i.e. material dates, uncontested facts, and so on). That being the case, the judical affidavit would only need to prove those that are not subject of any stipulation.

We were thus in agreement that it is ineffective and inefficient to require submission of judicial affidavits before Pre-Trial.

The better solution would have been to require submission of the judicial affidavits after Pre-Trial and the subsequent issuance of the Pre-Trial Order when the trial has already been limited to contested issues only.

Notwithstanding, while laborious, we were in agreement that judicial affidavits are helpful in practice as it lessens mistakes on the narration of witnsses who may be stressed, nervous, or intimidated in testifying.