Plain Language, Plain English or Plain Writing for government offices and private businesses in the Philippines

Index of topics: Definitions of Plain English / Plain Language Countries that have adopted plain language programs October 13: International Plain Language Day Benefits of Plain Language for government offices Benefits of Plain Language for private businesses Warren Buffett, world’s richest man in 2008, endorses Plain English Measurable benefits of using Plain Language in government offices and private businesses Former US Vice-President Al Gore: “Plain Language is a civil right.” Health literacy and Plain Language Basic principles of Plain Language Plain Language is not simplistic and does not “dumb down” the writer and reader US SEC clarifications and description of Plain English Plain Language initiatives in the Philippines “Before and after” comparisons of selected government communications Plain English / Plain Language lecture-seminars Resources in Plain English / Plain Language Plain Language in song

(Note: I conduct seminar-workshops for schools, organizations, government offices, and private companies that want to train their staff in Plain English / Plain Language. Please email me at gtgalacio@yahoo.com or text 0927-798-3138 for details.)

Since the late 1970’s and early 1980’s, various private groups (like the Plain English Campaign in the UK) and national governments (like Australia) have been pushing for and implementing “Plain Language” programs. Also referred to as “Plain English” or “Plain Writing,” plain language programs seek to make laws and regulations clear so that can find what they need, understand what they read, and use it to fulfill their needs.

Definitions of Plain English / Plain Language

[1] By Professor Robert Eagleson ( Sydney, Australia)

“Plain English is clear, straightforward expression, using only as many words as are necessary. It is language that avoids obscurity, inflated vocabulary and convoluted sentence construction. It is not baby talk, nor is it a simplified version of the English language.

“Writers of plain English let their audience concentrate on the message instead of being distracted by complicated language. They make sure that their audience understands the message easily.”

[2] By Martin Cutts, author of “The Plain English Guide” (1995)

“Plain English is the writing and setting out of essential information in a way that gives a co-operative, motivated person a good chance of understanding the document at first reading, and in the same sense that the writer meant it to be understood.”

[3] International Plain Language Working Group (Clarity International, PLAIN, and Center for Plain Language)

“A communication is in plain language if it meets the needs of its audience - by using language, structure, and design so clearly and effectively that the audience has the best possible chance of readily finding what they need, understanding it, and using it.” (Clarity Number 64, November 2010)

Countries that have adopted Plain Language programs

Plain Language programs are not limited to the English language. For examples, Sweden has its Plain Swedish program (Klarspak), Canada has a plain language program in French for Quebec lawyers, and Mexico has “Lenguaje ciudadano.” Since the 1980's, numerous countries have adopted plain language programs to better serve their citizens. These are:

1. US (Plain Writing Act of 2010; Section 1311, subsection 3, paragraph B of Patient Protection and Affordable Care Act of 2010, the use of plain language in health plans)
2. Australia (Victoria Law Reform Commission, 1980’s; Corporations Law Simplification Program and the Tax Law Improvement Project, 1990’s)
3. Canada (Legislative Drafting Convention; Lawyers for Literacy Project; Employment Insurance Legislation - Readability Project)
4. UK (Inland Revenue’s Tax Law Rewrite 1996: Capital Allowances Act 2001, Income Tax (Earnings and Pensions) Act 2003, Income Tax - Trading and Other Income - Act 2005)
5. New Zealand (Law Commission and Parliamentary Counsel Office)
6. Ireland (Statute Law Revision)
7. Scotland (Law Commission)
8. Sweden (Office of the Director-General for Legal Affairs)
9. European Union (its executive body, the European Commission, has a plain language campaign called “Fight the Fog”)
10. South Africa (National Credit Act of 2005, Section 22 of National Consumer Protection Act of 2011)
11. Singapore (In 1996, the Board of Legal Education introduced plain English into the Postgraduate Practice Law Course, a 5-month full time course that culminates in written examinations. The PLC is compulsory for admission to the bar in Singapore; Legal Writing Programme, National University of Singapore, 2001)
12. Malaysia (CICC Model Terms of Construction Contracts for Sub-Contract Works, 2007)
13. Portugal (SIMPLEGIS)
14. Mexico (“Lenguaje ciudadano” or Citizen Language, 2004)
15. Chile (“Ley Facil” program of the National Library of Congress, 2005)
16. Spain (“Modernizacion del Lenguaje Juridico” 2009)

October 13: International Plain Language Day

International Plain Language Day (IPLD) takes place on October 13. People and organizations will be hosting events online, in offices and on the streets to mark their support for putting readers first in communication by using plain language. You can read more about the various grassroots activities planned on the IPLD Facebook page. (Source: Pikestaff 52, a publication of Plain Language Commission)

Benefits of Plain Language for government offices

In the US, the Office of Management and Budget implements the Plain Writing law. In its final guidelines, the OMB states that plain language:

• improves public understanding of government communications;
• saves money and increase efficiency;
• reduces the need for the public to seek clarification from agency staff;
• improves public understanding of agency requirements and thereby assist the public in complying with them;
• reduces resources spent on enforcement;
• improves public understanding of agency forms and applications and thereby assist the public in completing them; and
• reduces the number of errors that are made and thus the amount of time and effort that the agency and the public need to devote to correcting those errors.

Benefits of Plain Language for private businesses

The US Securities and Exchange Commission has been implementing a Plain English program since 1998. In its free PDF “A Plain English Handbook: How to create clear SEC disclosure documents,” the SEC states the benefits for private businesses in using Plain English:

• Many companies have switched to plain English because it’s a good business decision.
• Companies that communicate successfully with their investors form stronger relationships with them. These companies save the costs of explaining legalese and dealing with confused and sometimes angry investors.
• Plain English versions are easier to read electronically than legalese.

The SEC also explains that using Plain English benefits everyone:

• Investors will be more likely to understand what they are buying and to make informed judgments.
• Brokers and investment advisers can make better recommendations to their clients if they understand documents easily.
  
• Lawyers reviewing plain English documents catch and correct mistakes more easily.

Warren Buffett, world’s richest man in 2008, endorses Plain English

Buffett is an American investor, industrialist and philanthropist. He was ranked as the world’s richest person in 2008 and is the second richest person in the world as of 2011. In the preface to the “SEC Plain English Handbook” mentioned above, he endorses the use of Plain Language:

This handbook, and Chairman Levitt’s whole drive to encourage “plain English” in disclosure documents, are good news for me. For more than forty years, I’ve studied the documents that public companies file. Too often, I’ve been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said.If corporate lawyers and their clients follow the advice in this handbook, my life is going to become much easier.

There are several possible explanations as to why I and others sometimes stumble over an accounting note or indenture description. Maybe we simply don’t have the technical knowledge to grasp what the writer wishes to convey. Or perhaps the writer doesn’t understand what he or she is talking about. In some cases, moreover, I suspect that a less-than-scrupulous issuer doesn’t want us to understand a subject it feels legally obligated to touch upon.

Perhaps the most common problem, however, is that a well-intentioned and informed writer simply fails to get the message across to an intelligent, interested reader. In that case, stilted jargon and complex constructions are usually the villains.

This handbook tells you how to free yourself of those impediments to effective communication. Write as this handbook instructs you and you will be amazed at how much smarter your readers will think you have become.

Perhaps the most common problem, however, is that a well-intentioned and informed writer simply fails to get the message across to an intelligent, interested reader. In that case, stilted jargon and complex constructions are usually the villains.

This handbook tells you how to free yourself of those impediments to effective communication. Write as this handbook instructs you and you will be amazed at how much smarter your readers will think you have become.

Write with a specific person in mind. When writing Berkshire Hathaway’s annual report, I pretend that I’m talking to my sisters. I have no trouble picturing them: Though highly intelligent, they are not experts in accounting or finance. They will understand plain English, but jargon may puzzle them. My goal is simply to give them the information I would wish them to supply me if our positions were reversed.

To succeed, I don’t need to be Shakespeare; I must, though, have a sincere desire to inform.

Measurable benefits of using Plain Language in private businesses and government offices



Based on interviews with 10,000+ consumers in 7 countries, the Simplicity Index evaluated the simplicity of 500+ brands. Conclusion: Simplicity pays.(Download PDF)

[1] “Complicated processes + unclear communications = frustrated customers”

[2] What is the impact of simplicity on businesses, on customer, and on employees?

On businesses: Higher customer loyalty

On customers: Greater willingness to pay (for simpler experiences, people would pay up to 5.9% more)

On employees: Increased employee motivation (companies that articulate a purpose simply and make it a central purpose for employees foster innovation.)

“Plain Language: Writing for Dollars, Writing to Please”

Prof. Joseph Kimble, Cooley College of Law, Michigan, USA, is a world-recognized authority on Plain Language. He is also the president of Clarity International, a worldwide organization of lawyers and other individuals committed to the use of Plain Language. His classic study is “Plain Language: Writing for Dollars, Writing to Please” published in The Scribes Journal of Legal Writing, 1997. In the study, Prof. Kimble cited testimonials from officials at trade associations (American Council of Life Insurance, American Gas Association) and at businesses (Shell Oil, Target Stores, Pfizer, Sentry Insurance, Bank of America, General Motors) on the benefits of Plain Language:

• Plain Language streamlines procedures and paperwork, makes it easier to train staff, and increases staff productivity and morale.
• It reduces confusion, complaints, and claims, and it improves customer satisfaction.
• It increases sales and raises the company’s standing in the marketplace.

In his study, Prof. Kimble cited several examples of the economic benefits of using Plain Language:

• The US Navy estimated plain English could save it between $250–$300 million every year.
• General Electric saved $275,000 by redrafting manuals into plain English.
• The US Department of Veterans Affairs saved $40,000 redrafting one standard letter into plain English.
• Federal Express, in revising its operations manuals, saved the company $400,000 in the first year.
• Alberta Agriculture, Food, and Rural Development, in revising its forms, saved $3.5 million.
• Customers in three surveys of standard letters from banks unanimously preferred the plain English versions.
• British Telecom cut customer queries by 25 percent by using plain English.
• The Royal Mail (British postal service) saved £500,000 in nine months by redesigning one form in plain English.
• A UK Government Plain English initiative saved £9 million in printing costs.

“How Plain English Works for Business: Twelve Case Studies” by the Office of Consumer Affairs, U.S. Department of Commerce

This March 1984 study reveals how some companies benefited by simplifying their consumer documents. Their use of plain English improved their corporate image and competitive position, as well as streamlined their procedures, eliminated unnecessary forms, and reduced customer complaints. These companies and their Plain English documents or programs are:

1. Citibank, N. A. (simplified promissory note)
2. Home Owners Warranty Corporation
3. J. C. Penny Company, Inc. (consumer information guide)
4. Pfizer, Inc. (healthcare education program)
5. Roche Laboratories/Hoffman-LaRoche Inc. (medication education)
6. Shell Oil Company (“Come to Shell” information campaign)
7. Target Stores
8. Aetna Life & Casualty (Plain English programs)
9. American Council of Life Insurance (understandable life and health insurance policies)
10. Insurance Information Institute (consumer information brochures)
11. Sentry Insurance
12. St. Paul Fire and Marine Insurance Company

Former US Vice-President Al Gore: “Plain Language is a civil right.”





Health literacy and Plain Language

What is health literacy?

The Patient Protection and Affordable Care Act of 2010, Title V, defines health literacy as the degree to which an individual has the capacity to obtain, communicate, process, and understand basic health information and services to make appropriate health decisions. Health literacy is the use of a wide range of skills that improve the ability of people to act on information in order to live healthier lives. These skills include reading, writing, listening, speaking, numeracy, and critical analysis, as well as communication and interaction skills. Health literacy allows the public and personnel working in all health-related contexts to find, understand, evaluate, communicate, and use information. (Calgary Charter on Health Literacy, 2008)

Connection between health literacy and plain language

[1] Plain language is a strategy for making written and oral information easier to understand. It is one important tool for improving health literacy. (Quick Guide to Health Literacy)

[2] Plain Language: A Promising Strategy for Clearly Communicating Health Information and Improving Health Literacy (Office of Disease Prevention and Health Promotion, US Department of Health and Human Services)

[3] Plain language: a strategic response to the health literacy challenge, by Sue Stableford and Wendy Mettger, from Journal of Public Health Policy, Vol. 28, No. 1 (2007), pp. 71-93

Low health literacy is a major challenge confronting American and international health organizations. Research in the past decade has documented the prevalence of limited literacy and limited health literacy skills among adults worldwide. This creates a major policy challenge: how to create text-based health information - a common method of health communication - that is accessible to the public. Plain language is a logical, flexible response. While touted by American, Canadian, and European health policy makers, adoption and promotion of plain language standards and skills in health-focused organizations have lagged. Most text-based health information continues to be too hard for most adults to read. Barriers to more rapid diffusion of plain language are reflected in a set of myths perpetuated by critics. These myths are identified and refuted. While plain language is only one of many broad-based solutions needed to address low health literacy, the benefits to everyone demand increased use by health organizations.

View more presentations from Ed_doc_Peggy

Basic principles of Plain Language

According to Prof. Kimble, the basic principles of Plain Language are:

[1] Plain Language means clear and effective communication - the opposite of legalese - and it has a long literary tradition. It does not mean baby talk or dumbing down the language.

[2] Plain Language and precision are complementary goals, not antagonists.

[3] Plain Language is not subverted by the need to use technical terms or terms of art.

[4] Plain Language is not just about vocabulary. Rather, it involves all the techniques for clear communication:

• planning the document;
• designing it;
• writing clear sentences;
• using plain words; and
• testing the document whenever possible on typical readers.

Plain Language is not simplistic and does not “dumb down” the writer and reader

The Office of the Scottish Parliamentary Counsel clarifies what plain language is all about:

[1] Plain language does not tend to come naturally to the author of any work and the legislative drafter is no exception.

[2] Only the clearest thinkers and writers can absorb the most complicated subject-matters and present information in a way which is accessible to a wide audience.

[3] The end product may look easy to write - the reality is that it is much more difficult to simplify than to complicate when writing about a complex topic.

[4] Skill and time are both essential if writing is to be made clearer.

US SEC clarifications and description of Plain English As stated above, the US SEC has been implementing a Plain English program since 1998. In its handbook, the SEC explains what Plain English is all about:

[1] Plain English writing does not mean deleting complex information to make the document easier to understand. For investors to make informed decisions, disclosure documents must impart complex information.

[2] Using plain English assures the orderly and clear presentation of complex information so that investors have the best possible chance of understanding it.

[3] Plain English means analyzing and deciding what information investors need to make informed decisions, before words, sentences, or paragraphs are considered.

[4] A plain English document uses words economically and at a level the audience can understand.

[5] Sentence structure is tight.

[6] Tone is welcoming and direct.

[7] Design is visually appealing. [8] A plain English document is easy to read and looks like it’s meant to be read.

Plain Language initiatives in the Philippines (updated as of October 4, 2013)

[1] Major initiatives

A. 16th Congress (2013 to 2016): Senate Bill No. 1092, "Plain Writing For Public Service Act Of 2013" filed on July 24, 2013 by Sen. Grace Poe. Status: pending in the Committee.



Senate Bill No. 1733 “People's Freedom of Information Act of 2013” filed on September 24, 2013 by Senators Chiz Escudero, Antonio Trillanes IV, Sonny Osmena III, Gregorio Honasan, TG Guingona, Alan Peter Cayetano, JV Ejercito, Sonny Angara, Loren Legarda, and Grace Poe. Status: Pending Second Reading, Special Order 9/24/2013

SEC. 20. Use of Plain Language. - Every government agency shall endeavor to use plain language in their communications orders, compliance, requirements or instructions issued to implement the provisions of this Act. The government agencies shall translate key information into major Filipino languages and present them in popular form and means.

(1) To carry out the provision of this Act, the Civil Service Commission (CSC) is designated to issue guidelines on the use of plain language to suit the needs of the requesting party;

(2) The CSC shall provide the necessary training to employees of each government agency in using plain language in public documents;

(3) All departments, agencies and instrumentalities of the national government, including government-owned or controlled corporations, local government units and state colleges and universities shall designate an official responsible for implementing the plain language; and

(4) Website contents, including, but not limited to financial data, notices and other technical and legal documents, of government agencies must also be written in plain language to ensure that these information are easy to read, understand and use.

B. 15th Congress (2010 to 2013):

• Senate Bill No. 1770 "Plain Language in Health Insurance Act" filed by Sen. Miriam Defensor-Santiago
• Senate Bill No. 1859 Plain Language Act "An Act To Enhance Citizen Access To Government Information And Services By Establishing That Government Documents Issued To The Public Must Be Written Clearly And In Plain Language" filed by Sen. Miriam Defensor-Santiago
• House Bill No. 34 "Plain Language Law of 2010" filed by Representative Rene Relampagos
• House Bill requiring use of Plain Language in insurance policies filed by Rep. Narciso D. Santiago III (Party-List, ARC)

Status: None of these bills got past the Committee level.

[2] Minor initiatives

A. House Bill No. 5219 "The Wireless Telephone Consumer Protection Act of 2011" filed by Reps. Diosdado Macapagal Arroyo and Gloria Macapagal Arroyo. Section 10 provides that "wireless telephone service providers must provide bills that are clearly organized describe in plain language the products and services for which charges are imposed, and that conform to format standards established by the Commission." Problems: No guidelines on what is "plain language" and no penalty for non-compliance.

B. Securities and Exchange Commission

1. "Sales and Marketing Guidelines for Derivatives," from SEC document titled "New Rules on the Registration of Long-Term Commercial Papers." The guidelines state that banks must adopt suitability statements that use "simple and plain language" and use "concise and clear messages."

2. "Amended Implementing Rules and Regulations of the Revised Securities Code" (February 2004)

"A prospectus must be worded in plain language which is understandable by an ordinary person." (3, B)

"All information that is required to be included in the prospectus shall be clearly understandable without the need to refer to SEC Form 12-1 or to the general rules and regulations. The goal of registration (disclosure for the benefit of investors) involves, among other things, the use of language that can be understood by the person to whom it is addressed. Failure to use language that is clear and understandable to the investor may defeat the purpose of the prospectus." (I, v)

"The Client Agreement shall be in a language understood by the client. The registered persons who deal directly with clients shall explain to the client the contents of the agreement." (3, B Client Agreement)

Problems: The SEC documents do not provide standards for what constitutes "plain language" or "clear and understandable language." No penalties are provided for non-compliance.

C. Bangko Sentral ng Pilipinas Circular No. 702, Series of 2010 (unfair credit card debt collection practices and their sanctions). The circular provides that credit card billings must be printed in plain language. Problems: No guidelines on what constitutes "plain language" and no penalty for non-compliance.

D. Supreme Court wallsheets for civil cases and criminal cases. Problem: The wallsheets are intended for the public but they still contain a lot of jargon and legalese. For example, "single sala court." But the wallsheets are a step in the right direction.

[3] Private sector initiative:

"A clarion call for simplicity in written communication" by Charlie Agatep of PR and advertising agency Havas Agatep, from Jose Carillo's English Forum

[4] Miscellaneous references:

A. Batas Pambansa Blg. 22 (Bouncing Checks law)

Section 3. Duty of drawee; rules of evidence. - It shall be the duty of the drawee of any check, when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same:

Enacted in 1979, BP 22 is the most violated criminal offense in the Philippines. The Supreme Court has ruled numerous times on BP 22's provisions. But these rulings have never clarified the term "plain language" in Section 3.

B. Numerous Supreme Court decisions use the term "plain language" but the term is merely a synonym for "plain meaning." The most interesting case I found is "Bermudez vs. CFI of Tayabas" decided in 1917. Back in the early 1900s, the Philippines was an American colony and American jurists served in its Supreme Court. Justice Moreland, in his concurring and dissenting opinion, lamented:

"Is this not plain language? Is it not direct language? Is it not strong language? Is it not conclusive language? Yet does the court follow it?"

Plain English / Plain Language revisions: “Before and after” comparisons of selected government communications

I will be posting in this blog my Plain Language revisions of selected government communications. By showing “before and after” comparisons, I hope that our lawmakers and owners of private businesses will realize the benefits of implementing a Plain Language program.

• Plain Language revisions: Senate rules of procedure in the impeachment of Chief Justice Corona
• Plain Language revisions: DSWD Travel Clearance for Minors
• Plain Language revisions: Public Attorney’s Office guidelines
• Plain Language revisions: RA 9994 Expanded rights of senior citizens
• Plain Language revisions: PDIC notice to Banco Filipino depositors
• Plain Language revisions: PVAO educational benefits
• Plain Language revisions: Pantawid Pasada Program guidelines
• Plain Language revisions: BSP Circular No. 702, Series of 2010 (protection of credit card holders)
• Plain Language revisions: DepEd Order No. 88 s. 2010

Plain English / Plain Language lecture-seminars I also conduct seminar-workshops for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com or text 0927-798-3138 for details.

Resources in Plain Language / Plain English

Free online training courses in Plain Language Plain Language Online Course, A Self Guided Learning Experience (from Center for Computer-Assisted Legal Instruction; course is used by Chicago-Kent School of Law students) National Institute of Health Plain Language Online Training (modules include:  How People Read; Concise Writing; Clarity; Format; Organizing Your Ideas; Choosing Words; Tone) Professional Writing Style (by a professor from University of Tennessee at Knoxville) PlainTrain - Plain Language Online Training FAA Plain Language Course: The Basics Online Training Presentations (Center for Plain Language) PRISM Online Training (Program for Readability in Science and Medicine) Plain Language videos Essentials of Plain Language (HowTogov) Social Media: You Still Need Plain Language (HowTogov) USCIS Plain Language: Active Voice USCIS Plain Language: Proofreading USCIS Plain Language: If-Then Tables USCIS Plain Language: Acronyms The right to understand: Sandra Fisher-Martins at TED Reader Focused Writing Orientation: Plain Language Letter The Baffling Banker - Demand to Understand The Elusive Lender - Demand to Understand Dr. Doubletalk - Demand to Understand The power of simple words The Power of Words Good news: clarity's a-coming! Invasion of the Space Lobsters "Writing English as a Second Language" by William Zinsser (a talk to the incoming international students at the Columbia Graduate School of Journalism)	Plain Language groups you can join Plain Language Advocates (LinkedIn group; free) Clarity (with annual fees) Center for Plain Language (with annual fees) Plain Language International Network (with annual fees) Learn more about Plain Language Michigan ar Journal Plain Language Commission Plain Language - State of Oregon Plain Language: Improving Federal Government Communications to the Public Usability Slideshare presentations about Plain Language Clarity 2010 Whitney Quesenbery (Using Storytelling to Improve Usability and Readability, Saving Your Budget with Plain Language, etc.) Testing plain language texts Josiah Fisk (How to use visual cues in plain language writing) Center for Plain Language 2013 PLAIN Conference Vancouver, BC (Plain Language for Democracy and Citizenship; Evidence-based Plain Language and Information Design) Writing science articles in Plain Language Writing science in plain English by Dr. Lynn Dicks, Conservation Science Group, Department of Zoology, University of Cambridge (30-minute Youtube video) Scientific Writing: Clarity, Conciseness, and Cohesion (from Duke University) Plain Language in Science: Signs of Intelligible Life in the Scientific Community? (Science Editor, Nov - Dec 2001, Vol 24 No 6) A Proposal for Communicating Science Communicating Climate Science Science for scientific writing handout Science of Scientific Writing (PPT) George Gopen on Science Writing Scientific Writing Resource from Duke University Graduate School
Plain Language checklists 15 TopTips in Plain English writing Readability Handout Plain Language checklist Plain Language Grade Level Flyer FAA Plain Language Tool Kit Reader Friendly Folio Writing in a readable style Designing scannable content Writing science in plain English PRISM Quick Reference Guide for Improving Readability Clear Language and Design screen and checklist Plain Language 10 simple steps US Census Bureau	Plain Language handbooks Making It Clear, Clear Language for Union Communications Write For Your Reader (NWT Literacy Council) Successful Communication Tool Kit Better Legal Information Handbook - Practical Tips for Community Workers Federal Plain Language guidelines Plain English sample chapter OECD Style Guide 2nd Edition Simplification Centre, University of Reading UK (Criteria for clear documents; Benchmarking everyday documents; What makes a good document?) PRISM Readability Toolkit (Program for Readability in Science and Medicine) How to write clearly (European Commission)
Plain Language includes visual design Essential Plain Language Collection for legal aid agencies Pay Attention to the Aesthetics of Your Page (Bryan A. Garner, Michigan Bar Journal) "Typography for Lawyers" by Matthew Butterick Document Design: Pretty in Print Part I (Judge Gerald Lebovits) Document Design: Pretty in Print Part II (Judge Gerald Lebovits) Before and After example (redesign of traffic violation notice; from Simplication Centre) How to use visual cues in plain language writing Bringing Design Thinking into Contract Design: Visual Tools for Better Contracting Part I; Part II Examples and Cases What Is Information Design? (Ginny Redish) Visualizing Information for Advocacy: An Introduction to Information Design Typographic voice: researching readers' interpretations; Choosing a typeface for reading (Simplification Centre) Visual Information Design (PPT) Data Visualization: Images That Tell a Story Data Visualization and Infographics in Government "Making Data Meaningful" from UN Economic Commission for Europe Part 1 A guide to writing stories about numbers Part 2 A guide to presenting statistics Part 3 A guide to communicating with the media Part 4 A guide to improving statistical literacy	Website design, usability, and Plain Language How to Use Plain Language on a Government Website Reasearch-Based Web Design & Usability Guidelines (US Department of Health & Human Services) Plain Language in Practice: Writing for the Web Web accessibility checklist Web readability guidelines Writing for the Web NASA web usability basics How To Increase Usability of Government Websites Health Literacy Online: A Guide to Writing and Designing Easy-to-Use Health Web Sites Using Plain Language to Communicate Health Information 4 Syllables: great web content Ginny Redish: Writing Vibrant, Compelling Copy — The Content in Content Strategy; Content! Content! Content!; Focusing on Conversations and Key Messages Jakob Nielsen: How Users Read on the Web; F-Shaped Pattern For Reading Web Content; Usability 101: Introduction to Usability; Top 10 Mistakes in Web Design IPU Guidelines for parliamentary websites IPU Guidelines for the content and structure of parliamentary Websites Health literacy and Plain Language Simply Put: A Guide for Creating Easy-to-Understand Materials (US Centers for Disease Control and Prevention) Easy Does It! Plain Language and Clear Verbal Communication (Canadian Public Health Association) Quick Guide to Health Literacy

Plain Language in song

Online resources on Plain English / Plain Language by Google

Garner on Language and Writing, by Bryan A. Garner, editor of Black’s Law Dictionary, 749 pages (copyright by American Bar Association) Topics include learning to write, style, persuasion, contractual and legislative drafting, grammar, lexicography, writing in law school, writing in law practice, judicial writing, and all the literature relating to these diverse subjects.

Plain Language Medical Dictionary The Plain Language Medical Dictionary widget is a project of the University of Michigan Taubman Health Sciences Library as part of the Michigan Health Literacy Awareness project.

Legal Procedures 25: Kinds of pleadings and motions in civil cases

Supreme Court materials on the new system known as “Face-to-Face Trial” A.M. No. 14-03-02-SC, March 8, 2014 that’s meant to speed up the resolution of case (external link)

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

Kinds of pleadings (Rules 6, 7 and 8 of the Rules of Court)

1. Complaint - the written statement of a plaintiff’s cause of action; the names and residences of the plaintiff and defendant must be stated in the complaint.

2. Answer - specific denials of allegations of the complaint, or a statement of new facts preventing recovery by the plaintiff

3. Counterclaim - any claim which a defending party may have against an opposing party (this may either be compulsory or permissive)

4. Crossclaim - a claim by one party against a co-party arising out of a transaction or occurrence that is the subject matter of the original suit, or of a counterclaim

5. Reply - a denial of new matters stated in the answer (if no reply is filed, the new matters are deemed controverted)

6. Third party complaint - a claim filed by the defendant with the permission of the court against a person who is not a party in the lawsuit (called the “third party defendant”) for contribution, indemnity, subrogation, etc.

Kinds of motions (Rules 6, 7 and 8 of the Rules of Court)

1. Motion for bill of particulars - a request by a party for a clearer and more specific statement of allegations made by the opposing party, to enable him to prepare his responsive pleading or to prepare for trial. It must point out defects complained of and the details desired.

2. Motion to dismiss - a move by the defendant to dismiss the suit against him based on grounds like the lack of jurisdiction, no cause of action, etc.

3. Motion for intervention - made by a person who has a legal interest:

(a) in the matter in litigation;
(b) in the success of either party;
(c) an interest against both; or
(d) who will be adversely affected by distribution or disposition of property in the custody of the court or an officer thereof.

4. Motion for judgment on the pleadings - made by the plaintiff for the court to render a decision based solely on the pleadings because the defendant’s answer does not deny the allegations in the complaint, except damages (this is not allowed for legal separation or annulment cases).

5. Motion for summary judgment - made by any party for the court to render a decision based on the pleadings (complaint, answer, etc), affidavits, stipulations, and admissions, in cases like recovery of debts, etc.

Notes:

1. Personal service of the pleading or motion is preferred. If it is either filed or served through registered mail, it must contain an explanation why personal service was not resorted to (Rule 13, Section 11).

2. Service of a motion on an adverse party should generally be done as to ensure its receipt at least three days before the hearing. Motion day generally is Friday; some courts schedule hearings on any day. If you are a new lawyer, always ask the court staff if the court has a specific motion day.

3. Based on the “omnibus motion rule”, a motion shall include all objections then available; if not included, they are deemed waived, except lack of jurisdiction over the subject matter, litis pendentia, res judicata, and prescription.

4. In a motion to reset a hearing (after the pre-trial conference), the proper fee must be paid.

5. Motions for postponements due to illness of a party or counsel must be accompanied by affidavits or sworn certification.

6. Trial lawyers sometimes say “talo sa motions, panalo sa kaso.” The proceedings in a court case can sometimes be like a roller coaster ride. In one hearing, there may be good results (the judge grants the motion, or the presentation of a witness goes well). But in another hearing, the results may be the opposite. This is one reason why lawyers are not allowed by the ethics of the profession to guarantee to the client the successful outcome of a case.

7. Compared to civil cases, there are a lesser number of pleadings in criminal and labor cases. This is why some lawyers prefer handling only criminal or labor cases.

The Katrina Halili vs. Hayden Kho case: What is a demurrer to evidence? Could Hayden be forced to testify in court?

The RA 9262 “psychological violence” case filed by Katrina against Hayden was dismissed yesterday by Judge Rodolfo Bonifacio of Branch 159 of the Regional Trial Court of Pasig City. Let’s take a look at some of the legal issues involved:

What is a “Demurrer to Evidence”?

The Pasig City RTC granted the “Demurrer to Evidence” filed by Hayden’s lawyer. In brief, a “demurrer to evidence” is a motion to dismiss the case for lack of sufficient evidence to convict the accused. This is governed by Section 23, Rule 119 of the Rules on Criminal Procedure. The said section states:

SEC. 23. Demurrer to evidence.—After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Procedure in filing a demurrer to evidence

The defense lawyer must ask the express leave (permission) of the court before filing a “Demurrer to Evidence.” The procedure is:

After the prosecution has formally rested its case, the defense lawyer, in open court, requests the express permission of the judge to file a demurrer. Once the judge gives such permission, the defense lawyer will within the period time approved by the judge file the demurrer. Copy of the demurrer must be furnished to the prosecution (the fiscal and/or the private prosecutor) which may submit its comments or opposition to the demurrer.

Or, the defense lawyer can submit to the court a “Motion to file demurrer to evidence with express leave of court”. Attached to such motion is the demurrer to evidence.

What happens if f the demurrer to evidence is denied?

If the judge denies the demurrer, then the trial continues and the defense must present its evidence.

What happens if the demurer to evidence is granted? What is “double jeopardy”?

If the judge grants the demurrer, then the case is dismissed (in other words, the accused is declared not guilty). No motion for reconsideration or appeal to a higher court is allowed since this would violate the Constitutional prohibition against “double jeopardy”. This term simply means that an accused who has been tried and found not guilty of a crime by a court of competent jurisdiction cannot be held for trial again for the same offense. (You might recall the 1999 movie starring Ashley Judd and Tommy Lee Jones about a woman accused of murdering her husband; the movie revolved around the issue of double jeopardy.)

Why does our Constitution provide that an accused cannot be placed in double jeopardy? Well, without such provision, an accused can be brought to trial again and again and again, ad infinitum. The only exception in the history of the Philippines is the Aquino-Galman double murder case; despite the acquittal of the accused, the Supreme Court allowed the retrial because of the connivance between the judge and the defense.

Could Hayden been forced to testify by the prosecution? Could the defense refuse to present him as a witness for himself?

As I stated above, if the court denied the demurrer, the trial would continue and the defense must present its evidence.

1. Could Hayden been forced, either by the judge or by the prosecution, to take the witness stand? No, because our Constitution provides that a person cannot be compelled to testify against himself.

2. Could the defense refuse to present Hayden to testify on his behalf? Yes. This is provided under Section 1 of Rule 115. The refusal of the accused to take the witness stand cannot be taken against him. No inference of guilt can be drawn for his refusal to testify.

Note: One news story, reporting on the dismissal of the case, stated in its lead that “Hayden Kho is now a free man.” This is totally inaccurate in view of the Constitutional provision on the presumption of innocence of the accused. Any person accused of a crime is presumed innocent until and unless the State has proven his guilt beyond reasonable doubt.

From “Jennifer ” to “Jeff ” and from female to male (correction of entries in birth certificate due to intersexuality)

The Supreme Court in the case of Republic vs. Cagandahan, GR No. 166676, September 12, 2008, upheld the decision of the Regional Trial Court in Siniloan, Laguna which allowed changes in the birth certificate of Jennifer Cagandahan as to (1) her first name from “Jennifer ” to “Jeff ” and (2) the entry for gender from female to male.

I have written previously a related post titled “Can a man who had a sex change operation have his birth certificate entry for gender changed from male to female?”. In that post, I discussed the 2007 Supreme Court decision in the “Rommel Jacinto Dantes Silverio vs. Republic of the Philippines” case. In the Silverio case, the Court did not allow the changes sought by Silverio in his birth certificate.

The difference between the Silverio and Cagandahan cases

Silverio had a sex change or reassignment operation in Bangkok, Thailand. On the other hand, Cagandahan has Congenital Adrenal Hyperplasia (CAH) which is a condition where a person possesses both male and female characteristics. As the Supreme Court stated:

[Cagandahan] simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent's development to reveal more fully his male characteristics.

Silverio deliberately took the sex reassignment operations to change his body to that of a woman. Cagandahan, on the other hand, from birth had a female body, male hormones, two sex organs, and no monthly period.

The facts of the Cagandahan case

1. In her petition with the Regional Trial Court in Siniloan, Laguna, Jennifer alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics.

2. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development.

3. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she asked the Regional Trial Court in Siniloan, Laguna that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

4. The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

Jennifer's condition: female body, male hormones, two sex organs, and no monthly period

5. To prove her claim, Jennifer testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondent’s condition is known as CAH. He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs - female and male. He testified that this condition is very rare, that Jennifer’s uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that Jennifer’s condition is permanent and recommended the change of gender because she has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

6. The Regional Trial Court in Siniloan, Laguna granted the petition. The Office of the Solicitor General however brought the case up to the Supreme Court.

The Supreme Court’s ruling

1. Respondent (Jennifer) undisputedly has CAH. This condition causes the early or “inappropriate” appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

What is Congenital Adrenal Hyperplasia (CAH)?

2. CAH is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted the term “intersexuality” to apply to human beings who cannot be classified as either male or female. The term is now of widespread use. According to Wikipedia, intersexuality “is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes.”

How societies treat intersexuality

3. Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role. Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals. More commonly, an intersex individual is considered as suffering from a “disorder” which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

4. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. “It has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’.” The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

5. In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

Determining factor in gender classification for intersex individuals

6. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics.

7. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an “incompetent” and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his personal judgment of being a male.

8. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.

9. As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent's change of name merely recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform with the change of the entry in his birth certificate from female to male.

(Note: The narration of facts and the ruling are from the Supreme Court decision, but were broken up into numbered paragraphs for easier comprehension by laymen.)

The ABS-CBN versus Willie Revillame case: What is a TRO?

(Note: Please read my Salt and Light blog post “Relationship tips for Shalani and other single men and women”.)

Due to the wide media coverage of this case and the popularity of the “Willing Willie” show, people have been hearing the term “TRO” over and over again. What exactly is a TRO?

Let’s deal first with the background facts. ABS-CBN filed last week of November with the Makati Regional Trial Court a 127 million peso case of infringement of copyright against Willie Revillame and TV5. According to a Starmometer report, “ABS-CBN claimed that Revillame and his co-defendants unlawfully infringed on ABS-CBN’s copyright over its show, Wowowee, citing section 172.2(l) of the Intellectual Property Code (IP Code). ABS-CBN stated that as the producer of Wowowee, it is the legal owner of a valid and subsisting copyright over each and every one of the Wowowee episodes and is thus entitled to protection against those who steal its work.”

The Starmometer report also stated: “Aside from seeking an award of damages in the amount of more than P127 Million, ABS-CBN also seeks for the issuance of a Temporary Restraining Order (TRO) and/or a Writ of Injunction to restrain Revillame, ABC and their other co-defendants from further producing and airing the infringing show Willing-Willie.”

Let me try to explain briefly these things in the vernacular:

Idinemanda ng ABS-CBN si Willie Revillame at TV5 sa Makati Regional Trial Court ng paglabag sa copyright law ng Filipinas. Humihingi ang ABS-CBN ng damyos na 127 million pesos. Upang mapigilan ang patuloy na paglabag sa karapatan nito, hinihiling ng ABS-CBN sa husgado na maglabas ng Temporary Restraining Order (TRO) o kaya ay writ of preliminary injunction laban kay Willie at TV5. Kung maglabas ng TRO o writ of preliminary injunction ang husgado, hindi na pwedeng ipalabas ng TV5 ang Willing Willie.

What is a preliminary injunction?

Rule 58 of the Rules of Court covers the provisional remedy of preliminary injunction. The term “provisional” means “while the case is going on”. Once the court hands down its decision in the case, the writ of “preliminary injunction“” may either become permanent or be done away with (if such writ or order was issued in the first place, that is).

Rule 58 Preliminary Injunction - an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by the said court or any member thereof.

A preliminary injunction may be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency or person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

What is a Temporary Restraining Order (TRO)?

When a party files a case and it asks for a preliminary injunction, it usually also asks the court to issue a “Temporary Restraining Order” because time is of the essence. If the party only asks for a writ of preliminary injunction, the hearing will usually be scheduled weeks or months from the filing of the case. The hearing can be scheduled, for example, as part of the pre-trial conference. But if the party also asks for the issuance of a TRO, the court must schedule a hearing within 24 hours from the filing of the case. Here are the rules:

1. The executive judge of a multiple sala court may issue a TRO ex-parte but it is good for seventy two (72) hours only. The term “ex-parte” means that the executive judge can grant the TRO immediately without any hearing.

2. Within twenty four (24) hours after receiving the records of the case and/or from the sheriff’s return, the trial judge must, after a summary hearing, either grant or deny the application for a TRO.

3. If granted, the TRO it is effective only for twenty (20) days and is automatically lifted after such period. During the effectivity of the TRO, the hearing for the issuance of a writ of preliminary injunction may be held.

4. If the TRO is not granted, the court will schedule hearings to determine whether a writ of preliminary injunction should be issued or not.

5. A TRO issued by the Court of Appeals or any of its members is good for sixty (60) days from service on the party sought to be restrained. On the other hand, a TRO granted by the Supreme Court or any of its member is effective until lifted by order.

In layman’s terms, a party wants a TRO or a writ of preliminary injunction so as to preserve his rights or to prevent damage. Without a TRO or a writ of preliminary injunction, the party, even if he eventually wins the case, may be left holding an empty bag, so to speak. (This may be illustrated by a dismissed employee winning a case with the NLRC against his employer. But if the company has become bankrupt while the case is going on, the employee may not be able to collect what the NLRC has awarded to him.)

Makati RTC refuses to grant the TRO; what happens next?

As you may know by now, the Makati RTC judge handling this case denied the ABS-CBN motion for the issuance of the TRO. What will happen next? The court will conduct hearings on:

(1) whether to grant a writ of preliminary injunction, and

(2) the main case of the alleged infringement of copyright.

Please take note that if a court does not grant a TRO, this does not necessarily mean it will not also grant a writ of preliminary injunction. Simply stated, a party may not get from the court a TRO but it may possibly get a writ of preliminary injunction. So, if the Makati RTC enjoins (stops) TV5 from airing Willing Willie, it will be through a writ of preliminary injunction and not by a TRO.

Motion to inhibit against Makati judge

The lawyers of TV5 and Willing Willie have also filed a “Motion To Inhibit” (also called “Motion To Recuse”) against the Makati RTC judge for his alleged ties to the lawyers of ABS-CBN. This motion has to be resolved first by the judge (or resolved together with the matter of the issuance of a writ of preliminary injunction.) If the judge refuses to inhibit himself, the lawyers of TV5 and Willing Willie will most likely bring this matter up to the Court of Appeals. They will ask the CA to order the judge to inhibit himself and to stay or suspend the hearings of the Makati RTC. (One other action that is often taken by lawyers is to file an administrative case against the judge with the Office of the Court Administrator of the Supreme Court.)

TV5 and Willing Willie’s defense: the format or mechanics of a television show cannot be copyrighted

According to news reports, lawyers for TV5, citing the 1999 decision of the Supreme Court in the case of Joaquin Jr. vs. Secretary of Justice Franklin Drilon, wanted the Makati court to dismiss the case filed by ABS-CBN. That 1999 decision involved a 1970's show “Rhoda and Me” which was allegedly copied by an RPN 9 program called “It’s a Date”. Secretary of Justice (now Senator) Drilon refused to file criminal charges for infringement of copyright against the RPN 9 program producer; the Supreme Court upheld Drilon’s action. TV5 is relying on the Supreme Court’s ruling that:

“The format or mechanics of a television show is not included in the list of protected works in Section 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.”

ABS-CBN’s plan of action: facts of the Joaquin vs. Drilon case not on “all fours” with the present case

Lawyers of ABS-CBN were surely aware of the Supreme Court ruling in the Joaquin Jr. vs. Drilon case. So why did they still file this case? Well, in my opinion, ABS-CBN will argue that the ruling applies only to the format or mechanics of a show and not to specific portions or segments. Meaning, ABS-CBN will argue that specific portions or segments of Wowowee like the opening song and dance routine, for example, can be copyrighted. As the legal expression goes, ABS-CBN will argue that the facts of the Joaquin vs. Drilon case are not on “all fours” with its case against Willing Willie.

The Supreme Court’s ruling in the Drilon case also faulted the producer of the “Rhoda and Me” show for its failure to present the master tapes. ABS-CBN will most probably present tapes of the “Wowowee” and “Willing Willie” for the judge to view side by side.

This conflict of opinions on the interpretation of laws and Supreme Court decisions is what makes litigation or trial practice the cutting edge of the law. Besides, there are a lot of gray areas in copyright law. Please read these articles: (1) Salient provisions of the Intellectual Property Code of the Philippines; (2) Copyright laws: too restrictive or a fair reward for creators? and Playing it safe – Internet content and copyright by Virginia Morrison; and (3) What is copyright?

Forum shoppingIn simple terms, “forum shopping” takes place when a party files multiple cases in several courts, hoping that it will be able to get a favorable ruling in one court. Forum shopping is a ground for the dismissal of a case. This is why a certification on non-forum shopping is a mandatory part of any initiatory pleading (complaint or petition).

Some people are questioning why ABS-CBN filed this infringement of copyright case against Willie Revillame in Makati when there is already a case between them being heard in Quezon City. These people say that ABS-CBN is guilty of “forum shopping”. This is not true, in fairness to ABS-CBN.
In the Quezon City case, Revillame filed a petition for judicial confirmation of the rescission of his contract with ABS-CBN. He also asked for 11 million pesos in damages. ABS-CBN as counterclaim filed a 426 million peso counterclaim against Revillame for breach of his contract by signing up for a new show (“Willing Willie”) on TV5. ABS-CBN also asked the Quezon City court to issue a TRO to stop the airing of “Willing Willie”). When the court denied the motion for the TRO, ABS-CBN filed a petition for certiorari with an application for a TRO with the Court of Appeals. The CA denied the motion for a TRO.

Take note that the causes of actions in the cases filed by ABS-CBN are different; its counterclaim in Quezon city involves an alleged breach of contract while the Makati case involves an alleged infringement of copyright. Moreover, as far as I know, TV 5 did not raise the issue of “forum shopping” with the Makati court.

The question really is not of forum shopping but of venue. All the parties involved (ABS-CBN, TV5 and Willie Revillame) are based in Quezon City but ABS-CBN, for one reason or another, chose to file the copyright infringement case in Makati. “Improper venue” is a ground for dismissal of a case (without prejudice to its refiling in the proper venue). But as far as I know, the lawyers of TV5 and Revillame did not raise this issue.

An interesting Supreme Court ruling on the issue of “improper venue” is “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents”. In this case, the Court ruled that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:

Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.