The Experience of Oral Argument Before the Supreme Court
Second of three parts
By Jay B. Rempillo
Appearing in an oral argument before the Supreme Court represents the pinnacle of achievement for many lawyers as oral arguments are generally conceded as showcases for only the very best advocates. It also is arguably a make or break appearance for any lawyer, whether one is in government or in private service. It serves as a platform for a counsel to display the clarity of his mind and the brilliance of her tongue, or simply put, one’s prowess.
“If you have appeared before the Supreme Court in an oral argument, you develop some kind of reputation. Either of fame or notoriety, as the case may be, depending on how you perform before the Court,” says Dean Pacifico A. Agabin, chair of the Constitutional Law Department of the Philippine Judicial Academy (PHILJA), the education arm of the Supreme Court.
One of the seasoned law practitioners held in high esteem by the legal community, Dean Agabin was former dean of the University of the Philippines College of Law and the Lyceum of the Philippines University College of Law.
Having appeared in an oral argument for more than 10 times now, Dean Agabin recalls that he was nervous the first time he argued a case before the Highest Court of the Land. He was nervous because of two main reasons: first, the case was sensationalized by the press and the broadcast media; and second, it involved a president of the Philippines. In 2001, he represented then President Joseph Ejercito Estrada when the former challenged the constitutionality of the Information for plunder filed against him by then Ombudsman Aniano Desierto, and the validity of Republic Act No. 7080, An Act Defining and Penalizing the Crime of Plunder. RA 7080 was eventually sustained as constitutional by the High Court. A copy of that Decision is reported out at http://sc.judiciary.gov.ph/jurisprudence/2001/mar2001/146710_15.htm.
Dean Agabin says that he “tried to overcome [his] nervousness” “by mastering the subject matter” and “by assuming that [he] knew more about the case than the justices hearing [him] En Banc.” He says that “you have to make special preparations otherwise you will be trembling like a wet chicken there before the justices.” He adds that even if it was groundless, he had to assume that he knew more about the case than anyone of the justices sitting before him.
The High Court itself recognized Agabin as a legal luminary when it invited him to be among its eight amici curiae during the oral arguments in 2003 on the constitutionality of the second impeachment complaint against then Chief Justice Hilario G. Davide, Jr. A copy of that Decision is reported out at http://sc.judiciary.gov.ph/jurisprudence/2003/nov2003/160261.htm.
As amicus curiae, which literally means “friend of the court,” Dean Agabin says you have to be very objective about your views on the case unlike in an advocacy or being counsel for one of the party litigants wherein you have to be very partisan. He adds that as amicus curiae, one has to adopt the attitude of say a scholar on the subject like a professor in a college of law. He underscores that a lawyer has to be objective, a lawyer has to be fair, and once he or she has arrived at a conclusion, a lawyer has to be prepared to argue for his or her side.
Dean Agabin says there is a very big difference in appearing as counsel for a party and in appearing as amicus before the Supreme Court. He shares that appearing as counsel for one of the parties puts a lawyer under great pressure because one’s client and his partisans are right there in the audience watching how you perform. He adds that as a counsel for a litigant, one should anticipate that one or more of the justices will be asking very difficult questions, especially when they have already formed their own opinion of the matter, and thus be prepared for all kinds of questions. In an amicus appearance, however, you are supposed to be objective and you do not belong to any side at all.
Having argued cases on several occasions already before the Supreme Court, Dean Agabin advises lawyers to always be prepared for any and all questions from the Justices, whether these are easy or difficult, relevant or irrelevant.
Retired Supreme Court Justice Antonio Eduardo B. Nachura holds the rare distinction of being one of a very short list of Justices who have served in all three branches of the government and, in contemporary times, as possibly the only one to have participated in an oral argument from both sides of the bench, first as Solicitor General, and later as an Associate Justice of the High Tribunal. Notably, in his 10 month stint as Solicitor General, Justice Nachura argued nine cases, which is quite a feat by any yardstick.
The 158th member of the Supreme Court, Justice Nachura held two posts in the Executive Department prior to his SC appointment on February 7, 2007. Then President Gloria Macapagal-Arroyo in 2006 appointed him as Chief Presidential Legal Counsel and subsequently, as Solicitor General. Before his appointment in the Executive, he was Representative of Samar’s Second District. He was also Undersecretary of the Department of Education, Culture, and Sports (DECS) in 1994.
Recalling how he would prepare for an oral argument when he was still with the Office of the Solicitor General (OSG), Justice Nachura emphasized that he tried “to cover a wider spectrum of the subject area.” He recalls that he assigns a case to two or three assistant solicitor general to do research on every aspect of the case.
He vividly remembers when he argued before the Court En Banc the case of Miguel v. Gordon in 2006 having “experienced in [his] oral arguments as Solicitor General the almost embarrassing situation of a justice asking a question [he] had never expected.” He says “sometimes, the questions [propounded by the Justices] do not really refer to the matter at hand.” Miguel v. Gordon involved the arrest of Camilo Sabio, then chair of the Presidential Commission on Good Government (PCGG), and his incarceration at the Senate infirmary.
Justice Nachura shares that he was caught off-guard then when asked by one of the Justices to differentiate civil and criminal contempt, which was a departure from the power of contempt of the Senate. He admitted that he could not make the distinction and, fortunately, the Justice who asked the question dropped the subject matter and proceeded to another area.
That experience taught him a very valuable lesson, which he imparts to other lawyers who will argue before the appellate courts: “Never try to bluff your way.”
He also agrees with Dean Agabin’s advice that lawyers who are to appear in an oral argument should anticipate all questions. He adds that lawyers should also be prepared physically, citing the instance when then Senator Joker Arroyo argued for the Senate in Senate v. Ermita. Senator Arroyo, he recalls, stood up and was questioned for five hours. When a lawyer argues, he is in a rostrum facing the En Banc and is only allowed to sit down after he has answered all the questions from all 15 justices.
He considers the case of Lambino v. Comelec one of the most interesting and one of the last cases he had argued as then Solicitor General. Justice Nachura recalls that the Office of the Solicitor General refused to defend the position of the Commission on Elections and instead argued along with the petitioner to convince the Court of the validity of the proposed amendments to the Constitution. In October 2006, the Court, by a vote of 8-7, denied the petition amend the 1987 Constitution through a people’s initiative, and the subsequent motion for reconsideration.
Justice Nachura intimates that while there is pressure on the counsels of the petitioners who argue the cases during oral argument, the pressure on the side of the Supreme Court is on the ponente, or the member-in-charge of the case being argued.
When asked, he names Dean Agabin, human rights lawyer Atty. Herminio Harry L. Roque, Justice Secretary Leila M. De Lima, and then private lawyer now Chief Justice Maria Lourdes P. A. Sereno as among those who have impressed him when they had argued before the Supreme Court.In his four years and four months as member of the High Tribunal, Justice Nachura says he keeps an open mind to learn something apart from his own perception and conviction. “I almost always enter that session open to be educated by something different from what I believed in,” he enthuses. (30)