CLASHING WITH A JUDGE IS A NO-NO, AS A GENERAL RULE.
I was in my third year in practice when I first pushed back against a judge. Due to an unfollowed rule which was not my fault, I was not being allowed to present my witness, who happened to be a vice-president of a big company. Since it is not that easy to get a schedule from my witness (apart from the embarassment that he was already there in the court room), I had to push back resulting in a clash with the judge.
The adjudicator happened to be the strictest judge in Makati, at that time. I end up researching him due to this incident. I seem to encounter similar comments. He appears to be aware and lives up to his reputation as being a strict judge (or should we say the strictest in that city).
What happened was fairly simple. You see, there is this Judicial Affidavit Rule that litigators have to follow. (It makes litigation faster, yet more burdensome.)
A judicial affidavit is the testimony of a witness that is equivalent to his direct examination. Based on the said rule, it should be submitted at least five (5) calendar days from pre-trial or presentation of a witness.
I had the judicial affidavit ready two weeks before the scheduled presentation of the witness. I could have easily complied with the 5-day rule.
Alas, I worked in a law firm where obedience and compliance is second only to the army. I had to wait for the instruction to file the judicial affidavit. Despite reminders to my supervising partner, the directive came a day before the presentation of the witness.
So here I was awaiting our case to be called. Inside, I was playing all the scenarios in my head. Most of them were not good. The judge will likely berate me for non-compliance. I regularly appear before his sala so I have seen others being at the receiving end of the stick. I have even entertained the the thought that he will not allow my witness to be presented. After all, as a stickler to the rules, the judge was likely to cite the consequences for non-compliance and it includes being barred from presenting a witness, apart from the usual monetary fine.
True enough, when our case was heard, the judge skimmed through the folder and took his time to review the case. His signature quiet yet strong presence pervaded the room. Everyone in the courtroom was also silent.
Then, he spoke: You did not follow the rules.
Here we go.
He continued pointing out the obvious. He started lecturing on the 5-day rule and the consequences for non-compliance. He took the time to give me a dressing down. He even went so far as to say that lawyers (with me as an example) were the cause of much delay due to rules not being followed, and not the courts. He went on for about 40 minutes, with me being cut evertime I wanted to explain myself. I already sensed chatter at my back of fellow lawyers who thought that I would not be allowed to present my witness. Finally, the judge himself said so that he ought to impose the sanction for non-compliance.
To think, this was an ex parte case!
I had to do something. My witness was an executive of a big company. It is not like I could get him to attend any day in court. He had business meetings to attend to and responsibilities to oversee at his office.
You see, in four years of law school and even in practice, we were taught and trained not to clash with a judge who holds a lot of discretionary powers. Hence, it is a no-no to butt heads with the one deciding your case.
What experience told me, however, was that not everything taught in law school and even said in training are written in stone.
I stepped and leaned forward. Starting with “respectfully your Honor” and said my piece even if the judge was still enjoying his lecture. On hindsight, it appears reckless and disrespectfully. If I tell you that it got me to present my witness, you’d think otherwise. It was a necessary and calculated risk.
When the judge realized I was not backing down as I went head to head with him, he paused to allow me to finish. Despite his demeanor, I realized that he was an old school, a man who was brought up being told not to talk when the other person is not yet finished. (The catch here is that he was in his 50s and I was 28. He could very well disregard that cultural saying given the age disparity. I should be the one to shut up.)
Of course, once I had said my piece, I pulled back thinking I might have overdone it. As any experienced litigator would know, you turn-over the power back to the judge. “We submit to your discretion, your Honor.” (The judge is king and his courtroom is his kingdom, as a litigation saying goes.)
Sternly looking at me, and taking a deep breath, he lashed out once more with a higher intensity than his earlier dressing down. (I ate a lot of humble pie, got really full.)
Then, he smiled.
He asked where my witness was and greeted him. I saw a glimmer of hope when the conversation pivoted and the tone of the judge mellowed down. Eventually, he said: prepare your witness, you will be on second call.
I felt quite relieved hearing those words. I guess it was worth it. Of course, I can only say it because it turned out well. Suffice it to say, I have never done the same thing since after several years. I do not even recommend it to younger lawyers.
You have to be very confident with who and what you are before you can challenge a king in his domain!