Technique of Oral Language Applied (1 of 4 Parts)
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ORAL LANGUAGE may be considered a technique within a trial technique. It is the oral aspect of the latter. Although part of trial technique, it is concerned with more than court procedure; it involves linguistics, psychology, logic, etc.
This article will deal with the various uses of oral language and cite examples to illustrate.
Evidence Through Oral Language
In our present judicial system, due to economic and other factors, the trial of a case is often stretched over a period of months and years. When the trial ends and the judge begins to write his decision, he will have forgotten most of what transpired in the case not only because of time lapse, but also because he has heard many other cases in the interim. to enable him to recall the evidence, he will have to read the transcripts of the entire proceeding. These comprise the questions asked by the opposing lawyers on direct and cross examinations, the testimony of witnesses, the manifestations and arguments of both counsels, as well as his rulings on motions or objections presented by the lawyers in open court. Thus, the transcripts, together with the related exhibits, constitute the facts from which the judge draws the findings for his decision.
In effect, the transcripts are the evidence “preserved” in the record. For this reason, the lawyer should take care that during trial all facts that tend to support his case are recorded to justify the findings for a favorable decision. Thus, “making of the record” is one of the most important tasks a trial lawyer should perform with skill to preserve favorable evidence for his case.
Faults in the Making of Record
The making of record — if the record is to be clear, correct and complete — requires that the lawyer be always aware that all utterances during trial are recorded by the stenographic reporter. Such constant awareness will impel the trial lawyer to think clearly and speak audibly, to think first before speaking to avoid false starts, and to choose correct words to convey the exact intent. Those efforts will eliminate duplicated statements and repetitive questions, produce accurate and readable transcripts, and present orderly evidence and logical argument.
To insure the making of clear, correct, and complete record, it is also necessary that certain habits and mannerisms which some lawyers often manifest during trial be avoided. Interrupting the witness, the opposing counsel, and even the judge, in the middle of their statement is one such fault. Not only is this practice discourteous, it also confuses the stenographer in trying to record the overlapping statements of two or sometimes three speakers talking simultaneously.
Many unskilled lawyers have the propensity also to “echo” the witness’ answer while mentally framing the succeeding question. When the witness repeats his answer to the “echoed” question, the stenographer automatically records both question and answer for the second time. This unnecessary duplication is time-wasting to the trial and appellate courts as they have to read the same question-and-answer twice; and, in terms of transcript costs, expensive to the party-litigants.
Other faulty ways of speaking for the record abound: For instance, when money figures are stated, these are not prefixed with the currency sign involved, nor supplied with decimal points to separate the fraction from the unit, etc. Proper names, especially if they are uncommon, are simply pronounced, thereby causing their misspelling. In designating letters or numbers to exhibits for identification, the markings do not indicate the party who introduced the exhibits to avoid confusion, especially if there are more than two parties in a case, such as “Plaintiff’s Exh. D” or “Cross-Defendant’s Exh. 2;” or “Third-Party Plaintiff’s Exh. D” etc. When witnesses gesticulate to demonstrate or indicate lengths, widths, shapes, elevations, or actions, etc., this part of the testimony is not described by appropriate words. Written statements read into the record are not indicated by quotation marks at the beginning and end of the quoted passage. [1]
End of Part 1
1 National Shorthand Reporters Association, “Making the Record,” The Great Power at the Bar and Bench, edited by Juan F. Rivera, 101 Tuazon Ave. 50 Laong Laan, Quezon City, Philippines, 1972.
The above article is from Volume 7, Nos. 11 & 12 of Philippine Law Gazette December, 1983 written by its author Judge Jesus M. Elbinias. All copyrighted materials above as used remain to be that of its owners and no trademark or copyright infringement or destructive exploitation is herewith intended in any form whatsoever other than use for discussion and academic purposes.
Comments
Many unskilled lawyers have the propensity also to “echo” the witness’ answer while mentally framing the succeeding question.Isn’t this a technique? Repeat what the witness said so that it would be “engraved” in the memory of the judge in one way or another. And maybe remembered by the judge when he reads the transcript “kasi nga paulit-ulit”?