Atty. Rami Hourani
The treatment of the intervention of lawyers is treated with a degree of mysticism and misfortune in the Philippines. In this article though, and its follow-up, I want to supply quick rules for when you should call a lawyer. This is not meant to be an exhaustive list of all the instances in which a person should speak to a lawyer. It is just a set of rules which a lay person can refer back to when thinking about getting a lawyer involved.
I felt the need to write this because people often do not know when they should speak to a lawyer. Sometimes it is an overreaction, the desire to vent a personal grievance or slight to a person in authority. Oftentimes, and more tragically so, it is an under reaction, where the lawyers intervention is after most of his client’s options have been formally taken from him by the lapse of time. In writing this, I hope to save people the time and expense of speaking to a lawyer when unnecessary and save them the pain of acting when it is too late.
As a general rule, a lawyer’s services are required when a cause of action exists in your favor. A cause of action action is the act or omission by which a party violates a right of another. [Rule 2, Sec. 2, 1997, Rules of Civil Procedure] This is without prejudice to the violations of law that are not civil in nature. However, as a lay person you are not expected to know the law, you are expected however to have a general sense when your rights have been violated, a law has been broken, or you yourself are in danger of breaking the law. Even when you know a law is violated, you need to have a rough idea of the gravity of the violation to decide when to bring a case.
Stated otherwise, we are looking for the violation or possible violation and its a level of gravity. When you have both a violation and have can discern for yourself that it is sufficiently grave as to warrant consulting with a lawyer.
The range of options available to a lawyer can be as small as a sternly worded demand letter to the threat of financial ruin. As the client, you should feel free to speak with the lawyer on how much his services will cost or why it amounts to such and such amount. (All while bearing in mind that the lawyer who sits in front of you had no hand in the misfortune that brought you before him, and will have many clients asking him similar questions.)
An exception you should bear in mind though, in a conflict between two private individuals. It is prudent to try and seek an amicable resolution among yourselves before going to a lawyer. Only in the event of failure to settle things amicably, should you try and avail of the services of a lawyer. This is because the utility of a lawyer’s services lies in the fact that a lawyer’s means for settling disputes are compulsory and will work regardless of the opposing party’s willingness. So for the purposes of the rules I will try to impart, let us assume that the opposing party is unwilling to compromise.
First, bodily harm or substantial damage or loss of property/income.
It often happens that through no fault of your own you find yourself having been adversely affected by the conduct of someone else. Let’s split the discussion into the two situations: Bodily Harm and Substantial Damage or Loss of Property/Income.
This is a category of violation that I would say you should almost always speak to a lawyer. The Philippines is a developing country but it is a civil one. There are no permissible situations, outside of lawful self defense, where a person may intentionally do harm to another. This extends to bodily harm committed intentionally and unintentionally. The reason why is because, in this situation, it is very likely that a crime has been committed. The only situation which I can imagine it would be appropriate to “forgive and forget” is in a situation where the injury is minor and accidental.
A punch in the face? Lawyer. Sexual assault? Lawyer. A deep wound with a knife? Lawyer. Anytime, anyone does anything to your body without your consent, a law has been broken. The reason for this requires little elaboration.
The intervention of a lawyer in this case will most likely involve the preparation of a complaint affidavit to be filed before the City/Municipal Prosecutor. It is advisable to obtain the services of a lawyer in the preparation of these complaint affidavits because of the nature of criminal law. The failure to allege every element of the crime involved may result in the dismissal of the case requiring it to be refiled. This happens after the passage of months due to the extreme case load that Prosecutors are put under.
In order to highlight how crucial it is that you seek the assistance of a lawyer, let us take for example the following provision of law:
Art. 264. Administering injurious substances or beverages. — The penalties established by the next preceding article shall be applicable in the respective case to any person who, without intent to kill, shall inflict upon another any serious, physical injury, by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity.Revised Penal Code
Having read this provision of law, you can now be said to know the law. Let me ask a few questions you may need the answers to in order to get the case successfully filed. What are the elements of the above defined crime? Do you file it in the City or Provincial Fiscal? Which of your witnesses actually saw the crime occur? Were you able to procure a Medico-Legal’s certification as to the gravity of the injuries? The victim is confined to the hospital, can his mother file the complaint for him? What size paper, size/style/spacing of font to use? The person we plan to accuse offered to pay for the hospital bills, is that relevant to our case?
I have seen the result of civil and criminal cases being filed by lay people on their own behalf. It is not enjoyable to see their efforts frustrated by bumping into procedural laws that may as well have been written in invisible ink for all the good they would do them. The work of lawyers is applied ethics, the same way engineering is applied physics. This does not however mean that memorizing formulae will teach you how to build a bridge, the same way that knowing what the law is does not make you a lawyer.
The work of the lawyer when making a complaint affidavit would be to break the above provision of law into its constituent elements, correlate each element to your specific situation, counter-check that his understanding was consistent with current jurisprudence, write them into the complaint affidavit form, and comply with the diaspora of issuances that govern the form and manner of submission of filing of cases. You can immediately see why such a process would trip up even the most competent lay person. A lawyer is expected to show up with the answers to all of the above questions on the tip of his tongue.
Substantial Damage or Loss of Property/Income
Most people, even lawyers, will have experienced petty theft, swindling, damage to their property, encroachment upon one’s property. Our everyday experience however allows us very little interaction with the justice system (outside of traffic violations). This means that lay people have the burden of deciding when to go to court, but with very little experience of what that might entail beyond a vague sense of protractedness and expense. This is the reason why the qualifier substantial is added, because the situation contemplated needs to be worth the cost of remedying it.
This scenario requires an understanding of the implicit costs of litigation. Every violation of law can be brought to court, not every violation of law is worth bringing to court. I have seen cases brought for a pair of trousers that was ruined due to the negligence of a dry cleaner, the client did it with the full understanding though that he was spending money purely to hold the laundromat liable. For most people though, the filing of a case is not the pursuit of justice but the dedication of substantial time, emotional energy, and resources for a goal. The remedies available are diverse, many years are spent by lawyers in order to understand the possible legal routes available to an aggrieved party. What follows will be a set of steps to permit you to come to a reasoned decision of whether or not to bring a case.
This is where you will need to do a little mathematics. You will need to add up all the costs that can reasonably be traced to your loss. If your car was stolen, the price of the car should be included. If the car was used as part of your business, the amount of the lost sales should be included. If you are no longer able to fetch your kids from school, the cost of having to hire a taxi back and forth from your home should be included. If it can be reasonably related to the harm done to you, it can form part of the case you will bring.
You will need to reach out to your local Integrated Bar of the Philippines Chapter, they can often be reached by e-mail, phone call, or Facebook. Request a list of the Standard Minimum Attorney’s Fees Schedule. This issuance will be used by lawyers when setting the prices for their services. There is going to be a lot of information to process on it but for your purposes, you should focus on the acceptance fee. This is an up front fee that is paid to the lawyer in order for him to formally become your attorney. Look for the acceptance fee for a case before the Regional Trial Court . Multiply this number by 3. This will give you a rough estimate of the acceptance fee, costs of filing the suit, the professional fees for the preparation of the initiatory pleading, and the amount you will pay in appearance fees for around the first year of litigation. This is just short hand though so that you can get a rough idea of how much the filing of the case will cost you.
The number can be substantially more depending on the complexity of the case, the premium the lawyer will charge for his experience, time the case may take away from the lawyer’s other professional commitments, and large filing fees due to the damages being prayed for being high. The number goes up even further if you are speaking to a law firm because it is common for law firms, which handle many cases, to charge per hour of work rendered.
Now that you have a rough idea what it will cost to file suit, take that amount and subtract it from the amount of your loss. If when looking at the amount, you see that the cost to you is substantial to you, than more likely than not you should seriously consider filing a case. Even when the damage is minimal, perhaps it forms part of a larger pattern of abuse or was done in a manner that caused embarrassment or emotional turmoil. These are all considerations that are personal to you which cannot be quantified using simple mathematics.
I propose this method of deciding when to bring a case because people often make decisions in the heat of the moment. They approach a lawyer when the offense to them is fresh in the mind and anger is heavy in the heart. The tedium of court litigation causes a cooling of the heart and some end up regretting their decision to file the case. The above set of steps, aside from helping you come to a decision if you should file a case, shall also help to steel your resolve, because it will become easier to call to mind why you set out in search of justice to begin with after the raw emotions have subsided.
It is possible to haggle, but the cost of bringing the case will likely be difficult to haggle below those mentioned in the Standard Minimum Attorney’s Fees Schedule. Lawyers have the discretion to go below this but reserve this right to close friends and family. If despite haggling, the price is still a rather large cost. You can offer your lawyer the possibility of working on a contingency basis, where he is entitled to a portion of the judgment award in the event that he can win the case for you.
There is however an exception to the above rule. There are a class of cases under the Rules of Procedure for Small Claims Cases, in Section 5, in which a litigant may avail of abbreviated court process for amounts under 200,000 Pesos. The fundamental feature of this process is that you do not need a lawyer to represent you. In fact, lawyers are prohibited from participating in the proceedings at all. I would still advise though that for the preparation of the case, you avail of the services of a lawyer in order to have assistance to fill out the forms and verify if your case falls under the Rules of Procedure for Small Claims Cases.
Second, Intimidation of a Grave Character
Not every injustice transpires immediately, some sit on the edge of the horizon warning you of their arrival. This is the situation that is perhaps the most difficult to decide if one requires the intervention of a lawyer. Your principle concern in these cases is the maintenance of your safety and that of your property.
There are explicit and implicit threats of a grave character. It may be the case that someone will make known that he will enact some manner of ill will against you. The latter is more insidious. An example of an explicit intimidation might be a man threatening to take back property he feels is his. It may also be the case that the danger is not immediately apparent. An example of implicit intimidation is that of a paramour who has successfully snared a married man/woman away from his/her spouse. He/she may cause the registration of his/her properties in his/her name or in the names of their mutual children to the exclusion of legitimate children. This is illegal but can only be remedied by costly litigation.
The notion you have to disabuse yourself of is that invoking a lawyer is always a lengthy affair. A prudent lawyer will endorse a course of action that begins with communicating politely but firmly with the other side. This is especially useful in this situation, when the harm has not yet occurred.
A personal experience of mine that is relevant to this discussion, was when a former client was being requested to pay sums of money for a debt that had long since been paid. She is elderly and lives alone but despite this, the person threatened to cut off her water supply if she did not pay. They had even gone so far as to secure the services of a lawyer for the issuance of a demand letter. In my response, I reminded them that there was an ongoing pandemic and they had just threatened to cut off the water of a senior citizen. I attached the proof of payment to my letter response and informed them I all future communications were to be addressed to me. We never heard from them again.
If a lawyer you speak to about such a scenario suggests going to court, do not be taken aback. Lawyers can be forgiven for thinking that that the courts are the most attractive option because of the immediacy with which legal process can paralyze your opponent. If after listening to your lawyer, you are still not completely convinced of the prudence of going to court, just repeat your wish that the lawyer write a letter on your behalf. A lawyer’s carefully chosen words carry the promise of severe consequences and will be considered by their intended recipient.
The stance that often lands people in trouble in this scenario is “I can protect myself.” This may well be true in most cases. However, not everything that is near and dear to a person can be “protected” as easily as we might protect our possessions or our property. An example might be a parent’s threat to completely omit a child from his will. Additionally, what we may do in the pursuit of our aim to protect, may itself transgress the bounds of law.
It is also tempting to merely tell the other party that you intend to get a lawyer. However, it is very common in the Philippines that at the first blush of a conflict people invoke the name of “Atty. So-and-so” so the threat carries very little weight.
Third, Getting in to or out of Marriage
The Philippines is the last country on earth where marriage is forever. (The eagerly awaited House Bill notwithstanding.) Despite this, people put more thought into their choice of vehicle than they do when deciding whether or not to get married.
Getting in to marriage
A marriage is the most legally consequential thing you will do in your life. You are giving half of everything you own and half of everything you will ever come to own to someone else. If your gaze wanders, you could wind up giving everything away. On top of this, you make yourself accountable to the other person for the rest of your life. If this sounds like a beautiful thing to you, you can safely ignore this part of the article. However, if this paragraph gave you pause at all, confer with a lawyer.
Before a marriage has begun is the ideal time to consult a lawyer, just to get a sense of the implications of the choice you are about to make. This should ideally be done separate from your prospective spouse so that you can ask the difficult questions in a setting free of judgment. (And recollection.) If you have misgivings at the end of the consult, your lawyer may recommend entering into a pre-nuptial agreement.
A pre-nuptial agreement is an agreement between spouses as to how their assets managed when they tie the knot and in the event they decide to go their separate ways. For legal reasons, it can only be validly made after the marriage occurs. Some spouses will balk at the idea of dispassionate accounting before getting married. Nobody plans for their marriage to end, as is only right, people should expect their marriages to end well. However, just because we can know that we will give something all of our effort, does not mean its failure is impossible. A pre-nuptial agreement takes one very large source of conflict off the table in the event of a legal separation or annulment case.
The question I ask people when we reach this point in the consultation is “Do you want to make the decision now while full of love? Or would you like to leave the door open to making the decision when full of hate?”
Getting out of Marriage
The flip side of the coin is not a pretty sight. There is a saying that “Criminal Lawyers see bad people at their best, and Divorce Lawyers see good people at their worst.” This may be the reason why so many people when ending their marriage stop at the de facto separation and do not take steps to formalize their separation. The filing of the necessary annulment case is seen as needless expense and people are all to eager to get on with the business of living their lives. However, there is no reason to leave a marriage subsisting after it has ended, and there is every reason to end it.
The passage of time can wreak havoc on what might have otherwise been a painful but short separation. In the time it takes a former couple to formally end it, each of them could have been accumulating properties that formally become part of their communal property. They could have been selling properties that should have been their communal property. The passions may have been stirred up over things that were allegedly said or comparisons that may have been made. There may be more children whose welfare must be taken into account. The parties may be less willing to dredge up old hurts but will be forced to because of compulsory process.
It is sad but true that there is no reconciliation after the visit to your lawyer’s office. You go there to end a marriage. However, in doing so you permit the possibility of beginning anew without the weight of the past dragging behind you. You will not need to see your ex-husband or wife again to sign this or that document. You will not need to worry about a sheriff knocking on your door with summons to a child custody hearing. You will not have to awkwardly explain to your future romantic partners why you are not keen on being seen in public with them. You will be free.
If you have any questions, please feel free to leave a comment below. The second half shall be available later in the week. If you made it this far, I hope this article helped you in some way.
If you liked what you read so far Part 2 of this article is up! Click here to continue reading!