November 20, 2007

The Legal Equivalent of the Kitchen Sink

In my line of work, I had to learn early on to take whatever victories I get and manage to learn to roll with the punches, learn from the losses and try not to get too embarrassed from my galactically stupid mistakes.

A friend of mine told me that I am the lawyer's equivalent of St. Jude; if you know what he is patron saint of, you might catch the analogy. I didn't know what to think then but later on, I felt complimented.

Early on also, I've had to learn many little things about the law that would help--in any way--secure those precious little victories. One provision of the Rules that I stumbled upon early on is Rule 135, section 6 (non-lawyers, feel free to tune out after this; you're welcome to read on though if you wish. ), an innocuous provision of the rules that no one (well, except I, he he he) in law school teaches. It is what I fondly call the legal equivalent of the kitchen sink (the figure of speech is "throwing everything at a problem, including the kitchen sink). It reads:

Sec. 6. Means to carry jurisdiction into effect. -- When by law, jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

In short, what does it mean? It is license given to a court--any court-- to invent, to create, to magically conjure up remedies that the Rules or the Law did not even dream of, for so long as it is consistent with the law or the rules. Note that Article VIII, sec. 5(5) gives the power to promulgate rules on pleading, practice and procedure only to the Supreme Court but this one, Rule 135, sec. 6 gives to any court the power to adopt any process or mode of proceeding.

In my line of work, where clients generally don't have a defense, or a witness, or a witness who is credible, or cannot be bought, intimidated, frightened off or killed, that is the kitchen sink.

Recently in the very first case involving the writ of amparo (it is docketed by the CA as 00001 ), I cited this rule in our Position Paper for the petitioners; one of the justices commented, "I did not realize that rule existed. That is a very powerful rule. However did you discover that?" I just smiled.

My answer would have been, had I been minded to answer: "Sometimes, necessity, or utter and sheer desperation, is the mother of invention or resourcefulness."

That's how I discovered the legal equivalent of the kitchen sink.

2 comments:

jae said...

so cool. :-) will try this soon. thanks sir.

Lumen said...

it never ceases to amaze me that you can be unfailingly humble in spite of your brilliance. but i guess that's why many people admire you not only as a law professor but as a decent person.. :)