Legal Counseling Revised

Legal Counseling By: Recaredo P.
Barte
Introduction: translated into action by means of giving
legal advice, drafting of documents or
A. Definition of terms: appearance in court or other
1. Counseling- is the art of giving advice administrative or quasi-judicial body
and information on a particular problem involving the use of faculty or intelligence
or hypothesis including the adoption of a of one skilled in law who is entitled to a
course of action to be taken for the legal fee.
solution thereof.
2. Legal Counseling- is the art of giving B. Importance of Legal Counseling
advice and information concerning the There is a necessity for the services of
solution of a legal problem arising from a a lawyer who is trained to assist
given state of facts and the adoption of people confronted with legal
appropriate reliefs or remedies under the problems.
law for the satisfaction and enforcement But when all avenues for conciliation
of a legal obligation before a judicial or are exhausted with no certainty of a
quasi-judicial body. consensus in sight, then the parties
3. Court of Justice- is a judicial body or are left with no recourse in order to
tribunal created by law vested with protect their interests, but to go to
jurisdiction of power to hear and court.
adjudicate litigious conflicts and to award
proper reliefs and render judgments C. Importance of Lawyers in Society
based upon the evidence presented. In ancient times, lawyers have already
4. Quasi Judicial Body- is an administrative played an important roe in the
body or agency belonging to the executive conduct of human relations.
branch of the government vested with The necessities of civilized men, their
jurisdiction to hear and adjudicate human rights, all the complicated
non0litigious cases brought before it by relations of life render the legal
disputed parties and empowered to profession honorable and
enforce its judgments and orders like a indispensible.
court of law and to punish for contempt As such, there ought to be norms of
5. Administrative Body or Agency- is an conduct intended to regulate the
instrumentality of the executive branch of practice of the profession, otherwise,
the government vested by law with there will be no stopgap to abuses and
jurisdiction to settle and adjudicate the human tendency to heed the
controversies arising from the influence of evil. These norms of
interpretation, application and conduct or moral standards are
enforcement the law or administrative referred to as Legal Ethics.
rule or regulation. Under a kind of governance where
6. Arbitration- is the process of the everybody is equal before the eyes of
extrajudicial settlement of controversies the law, the services of a lawyer are
in the administrative level before an second to none. The complexity of his
arbitrator thru the voluntary will of the functions places him in peculiar
parties arising from the violation of law. situations of influence in his
Administrative rule or regulation. continuous contact with a great
7. Conciliation- is an extrajudicial process variety of people and interests.
of settling disputes thru the voluntary A lawyers advice and assistance is
submission of the parties before the sought by the wealthy and the poor;
Barangay Lupon or the other strong and the weak; honest and
administrative body, usually arriving at a dishonest; men and women of all
compromise agreement which serves as professions and persuasions; and
basis of a court judgment, or as a every class in society.
condition precedent to vest jurisdiction to
a court of law. D. Legal Ethics Essential Component of Law
8. Compromise Agreement- is a mutual Practice
agreement or understanding usually Legal Ethics is defined as that branch
reduced into writing entered into and of moral science which treats of the
executed by parties litigants whether duties which as attorney-at0law owes
judicially or extrajudicially which serves to his client, to the court, to the bar
as basis for a court judgment. and to the public.
9. Law Practice- is the act of performing Sources of Legal ethics
any activity pertaining to a bonafide o Constitution
member of the bar which carried out on a o Rules of Court
habitual or continuous process and o Decisions of the SC and CA
1 BajandeBalajoroClemenciaCoroFranciscoGayadosGelarioHeftiIlayaManginsayPeaflorPerezQuiranteSalazarTumang
Legal Counseling By: Recaredo P. Barte
o Decisions of the United States o A man of integrity whose
Supreme Court word commands respect and
o Art. 1491 of the NCC authority
o Art. 209 of the RPC
o Art. 2208 of the NCC When not to accept a case:
o Dont accept a case unless
E. What is considered Practice of Law? you believe in it
There is no exact definition of the o if the client has no cause of
phrase practice of law action or defense at all, but
The SC, however had in many cases merely seeks your legal
held, that law practice is more than services to delay or buy time,
an isolated appearance, for it consists to obstruct justice and to
of frequent or customary actions, a harass the court or the
succession of acts of the same kind. adverse party
Preparing documents and rendering
legal services are within the term Scope of lawyers advice and control
practice of law. o A lawyer has control with
The appearance of counsel on one respect to the procedural
occasion is not conclusively aspect of the case. The final
determinate of engagement in the decision whether to litigate or
practice of law. not, or to enter into a
An ordinary preparation and drafting compromise or not, or
of legal instruments which involves whether or not to take an
determination by a trained legal mind appeal or not should come
of the legal effects of facts and from the client.
conditions, or whenever such acts o He must be frank with his
involve the use of still and intellect by client in explaining that his
a legal mind trained and schooled in a case will not prosper in court
legal school of learning and be ready to substantiate
his opinion on this matter
F. What is not Considered Practice of Law? based on his legal knowledge
Gratuitous furnishing of legal aid to and experience
the poor and unfortunate who are in
pursuit of any civil remedy as a H. Extent of lawyers authority
matter of charity The lawyer has the authority to
The mere search for records of realty choose the proceedings he will
to ascertain what they may disclose institute and the witnesses he will
without giving opinion or advice as to present in court.
the legal effects of what may be found He can make admissions of fact but
If work involves only clerical labor of not of law
filing in the blanks on stereotyped The mistakes of the lawyer cannot be
form or a mere mechanical act of utilized as grounds for a new trial
copying from a file copy or finished unless it is shown that the
document that involves no legal thing incompetency of the counsel is so
is not considered legal practice. serious that his client is prejudiced
and was prevented from fairly
*What is important is whether the act establishes a presenting his case.
lawyer-client relationship, and then it is considered An attorney cannot bind his client by
as a practice of law entering into an agreement
compromising and settling the rights
G. Professional Responsibility of the client without special
In the conduct of lawyering, an officer authorization.
of the court must be always be guided
by a sense of professional Chapter I
responsibility
An advocate of law must be:
Beginning a Law Practice
o Well equipped with a vast
knowledge in Psychology A. Prefatory statement
o An expert on human relations Solo Private Practice
o A skillful arbitrator on the Often a new lawyer often
bargaining table encounters difficulty in going into
o An actor solo practice.
A solo practitioner starts from The usual basic sectioning in law
scratch, will most likely be unable department structure is either by
to meet the souring cost of office legal subject matter for instance
rentals, equipment, travel and tax, corporate affairs, real estate,
representation. litigation, patents, labor,
While a solo practitioner enjoys immigration and insurance.
the advantage of being his own Others are done by administrative
boss and is not accountable to segments such as tax, sales
anyone except himself, yet not research, traffic departments,
being able to establish a name for individual corporate subsidiaries,
himself in his initial practice, civil law, criminal law, special
oftentimes finds difficulty in proceedings under litigation
attracting good paying clients.
Government employment
Assistant or associate in a private Those who are already in the
law firm service before taking the bar,
It offers better opportunities simply utilize their profession for
This could be attained by further promotion to higher
organizing a law firm among your positions in the offices and
classmates or by joining into a agencies in which they are already
partnership with some familiar employed.
friend lawyers who are well-to-do The disadvantage however of
and financially capable of joining government service is that
satisfying the overhead expenses once you get stuck up to your job
of maintaining a law office. with a well paying salary, you find
It is advisable that the partnership it difficult to leave the same
agreement be reduced to writing employment which guarantees
as the partnership expands and your future security like being
progresses to avoid future entitled to a GSIS pension upon
misunderstanding. retirement.
The better option therefore for
Joining a corporate law department those who intend to pursue
Offers higher salary and doles out private law practice, is to seek
generous pecuniary and fringe government employment for the
benefits not usually enjoyed from purpose of acquiring
a private law firm specialization and experience in
The disadvantage lies in the fact specific fields like immigration
that once a lawyer has stuck up cases, insurance, tax cases, and
with a corporate legal position, he labor cases, and after a stint of
finds it difficult to go into private say, five years, and you feel
practice later on for fear of losing adequately prepared already to
a higher paying job stand on your own feet, then it is
time to open a private law office
How a corporate law department
operates B. Opening a Law Office
Salaried layers in these Pointers on opening a law office
departments do legal work for Located in busy districts to make
their respective employers, and it more accessible
this is generally permissible in Near government offices like the
this in this jurisdiction. Post Office, the Register of Deeds,
Some companies permit their Office of the Assessor, or BIR or
salaried lawyers to engage in near courts where you appear
private practice their salaried Accessible to transportation
lawyers to engage in private One man office
practice during off-hours, others It is sufficient to rent an office
do not. space to accommodate an office
The demands of their regular jobs table and a small typing table for
are so great and their local your secretary
connections so limited that even It is advisable to reserve a
when permitted, few corporate separate room where you can
counsels do much in the way of discuss confidential matters with
private practice. your client
What should a filing system include Every delay in the outcome of the case
i. Clients files this includes should be explained to the client after
pleadings and other court the close of each day of hearing.
records, documents and It is a normal reaction of the client to
decisions, which comprise the become wary every time the case is
bulk of the cases of the different postponed, hence, it is the duty of the
clients who have hired the lawyer to explain to the client the
services of your law office cause of the postponement to avoid
ii. Collection files these files suspicion of connivance with adverse
need a separate filing cabinet counsel.`
and should be given importance
since this determines the Fixing of Attorneys Fees
income of the law office should be fixed preferably in writing
iii. Personal files these refer to also called as retainership contract which
the personal activities of the marks the birth of the attorney and client
lawyer, his personal
relationship
correspondence and
communications, personal Factors for fixing Attorneys Fees:
records, schedule of 1. Value of the litigation involved
appointments and attendance
2. The professional standing of the lawyer in
in civil and bar organizations,
taxes and finances the community
iv. General correspondence files 3. The difficulty of the issues involved
refer to all records of
correspondence of the law
How to sustain a law practice
office with other persons or the lawyer must attend workshops,
entities dealing with the office, seminars and conventions that conduct
personnel equipment, charities lectures on legal education especially
etc. not involving clients those sponsored by the UP Law Center
must also read IBP Journal and the
Tips on Billing to clients Lawyers Journal
i. The nature of the case involved must have membership in different law
ii. The difficulty and intricacy of associations and lawyers organizations in
the legal issues as compared to
order to familiarize himself with the
simple cases
iii. The time and effort to be recent developments in the legal and
invested from the rafting of the judicial system
pleadings to the
commencement of the litigation
Some Tips on Specialization
in court, the projected and it must be really your favorite so as to
number of court appearance up show your skill and expertise in order to
to its termination in the trial be considered a specialist
court must have the ability to develop public
iv. Other unexpected incidents like relations with government officials in
filing and arguing a motion, the charge with the processing and approval
estimated time and effort to be of papers in their respective agencies
spent for argumentation
v. In case of appeal, the expenses How to satisfy a client (really now?)
incurred in perfecting an -the new lawyer should endeavor to protect and
appeal, preparation of appeal take good care of his relationship with his client
briefs, and additional amount of
-treat the client with:
attorneys fees for the purpose
1. Cordiality and compassion
of appeal
2. Sincerity and honest intentions
3. Spirit of not giving when all the odds
C. Pointers in Dealing with the Client seem to shatter the brightest hopes
Frankness and tact should be the
climate in dealing with the client. How to make the client happy and comfortable:
With respect to the fixing of payment 1. Remember who you are working for the
of attorneys fees, a business-like real boss is the client
approach should be the criterion, so 2. Define the relationship make sure the
that the client should not feel cheated client understands everything
or taken advantage of. 3. Keep in touch give them updates
4. Keep at least two docketing systems one 4. Look out for your clients interests
you manage and the one your staff 5. Look as effective as you are
manages
5. Accept phone calls be accessible and be Changing from solo practice to partnership
of service (advantages)
6. Promptly return your phone calls tell 1. Greater earnings lawyers in partnership
your staff that you call clients back earn over 100% than solo practitioners
7. Spend time with your staff update each 2. Greater efficiency can do a job
other effectively and more quickly
8. Paper the worlds give client copy of 3. Lower overhead there will be reduction
everything in overhead costs
9. Do not procrastinate handle it today 4. More clients one lawyer may act as the
10. Send out an evaluation sheet ask the outside man
client to evaluate your performance after
the case Factors involved in changing to a partnership:
1. Know the right kind of partner
How to obtain clients: 2. Finding him
1. Reputation for capability as a lawyer 3. Drawing up the partnership agreement
2. Reputation for trustworthiness
3. Personal acquaintance with the lawyer -take plenty of time to get to know him, watch
4. Referral by neighbor or friend him in action and exchange full information.
5. Participation in civic, religious and -in any event dont rush into it
community activities
6. Referral by another lawyer Chapter II
7. Lawyers political activity
8. Lawyers appearance and conduct in
Work tasks of Lawyers
court
9. Other reasons (AND LF PAS)
A. Advice
-in sum reputation plus conduct compromise B. Negotiation
85% for clients reason in selecting his lawyer C. Drafting
-Warning: Do not make every conversation into a
D. Litigation
sales talk or law lecture on your legal ability
-Keep your name in public not by advertising but E. Financing
by printing professional cards, it is more prudent F. Property Management
to simply print your name, office address, and G. Acting as Executor or Administrator
telephone number H. Specialization
Characteristics that clients look from lawyers:
1. Friendliness
2. Promptness A. ADVICE
3. Courtesy Lawyers advice consists of
4. Respect for clients recommendations as to what course of action
5. Business like attitude
should be followed, and the reasons and data
6. Consideration in keeping clients informed
supporting these recommendations. The
What lawyers think clients should expect: advice may also center on informations and
1. Prompt and thorough communications probable results based on the following
2. Prompt handling of the clients work additional considerations:
3. Honest and straightforward dealing with
the client 1. anticipated reactions of courts and
4. A courteous and sympathetic attitude other administrative agencies or
5. Competence and diligence quasi-judicial bodies;
2. probative value of evidence;
-Keep an interview with a client in private and
3. desires and resources of clients and
outline your proposed course of action
How to keep your clients happy: affected parties; and
1. Avoid unnecessary delay 4. Alternative courses of action.
2. Keep your client informed The lawyer merely restricts his
3. Be there when your client wants you role to illuminating choices, not
recommending or deciding the things which are under administration;
among them. (8) To lease any real property to another person for
more than one year;
(9) To bind the principal to render some service
B. Negotiation and Conciliation without compensation;
Negotiation dealing with another in an (10) To bind the principal in a contract of
effort to reach an accord between the client partnership;
(11) To obligate the principal as a guarantor or
and this other person. surety;
(12) To create or convey real rights over immovable
Essential elements of negotiation: property;
1. proposals to the other side (13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted
2. counter-proposals
before the agency;
3. reconsiderations (15) Any other act of strict dominion.
4. compromise
5. advice to clients Most common subject of negotiations are:
6. client instructions to counsel closings, coverage of title, insurance policies,
eminent domain awards, conflicts between
Maybe through telephone, correspondence or real estate brokers over sales commissions,
face to face conferences. mortgages, real estate tax adjustments, lease
terminations, tenant relocations and
The lawyer must be equipped with a special settlement of litigation.
power of attorney because a lawyer and a
client relationship are likened to that of agent Out of court settlements are most desirable
and principal in a contract of agency forging because:
out of a compromise agreement. Otherwise, Clients fearful of becoming
the judgment of the court based on the emotionally distressed by the
compromise agreement cannot be enforced it uncertainties of trial and the expense
being null and void, unless, ratified of litigation.
thereafter. Lawyers to save time and effort
Judgment null and void
Compromise agreement voidable Effective negotiation techniques:
until ratified by the client 1. Speeding up litigation process (Delay)
2. Concealment of Facts
Special Power of Attorney Article 1878 of the
Conceal from the other side the
Civil Code
Art. 1878. Special powers of attorney are necessary least favorable terms that their
in the following cases: clients are willing to accept.
(1) To make such payments as are not usually 3. Shifting negotiation technique
considered as acts of administration;
(2) To effect novation which put an end to
obligations already in existence at the time the C. Drafting
agency was constituted; Drafting is the writing and revision of
(3) To compromise, to submit questions to written instruments which includes not only
arbitration, to renounce the right to appeal from a
judgment, to waive objections to the venue of an the complete preparation of an instrument by
action or to abandon a prescription already one person, but its review and modification
acquired; by others.
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the
Typical legal documents:
ownership of an immovable is transmitted or
acquired either gratuitously or for a valuable 1. usual contracts and deeds;
consideration; 2. sales;
(6) To make gifts, except customary ones for charity 3. leases;
or those made to employees in the business
4. mortgages
managed by the agent;
(7) To loan or borrow money, unless the latter act 5. wills;
be urgent and indispensable for the preservation of 6. partnership agreement;
7. articles of incorporation; does not appear. Upon proof of service
8. pleadings, compromise agreement; of notice to the defendant,
9. decisions, and resolutions; complainant can then move for
10. press releases; reception of his or her evidence ex-
11. letters; parte which will serve as basis for the
12. staff memoranda; and courts decision granting annulment.
13. advertisements
E. Financing
One does not need to be a gifted writer to be Financing the lawyers participation as a
able to draft a nearly perfect document, it is principal in business deals with clients where
sufficient that the document contains the he receives a share in the venture in return
essential requisites and formalities provided for cash or legal services.
by law,
F. Property Management
D. Litigation These tasks include the following:
1. Leasing
Litigation - proceedings before any tribunal
2. Eviction
whether judicial or quasi-judicial or
3. Contract for repairs
administrative body vested with Jurisdiction
4. Rent collection
to decide issues involving parties who are 5. Arranging for maintenance services and
entitled to appear before the decision maker insurance
and prosecute their cause. In addition to 6. Payment of taxes and other expenses
matters heard by courts, this includes many 7. Acting as executors and trustees
of the proceedings before government
administrative agencies and even those In a lease, some Lease contracts expressly
before such private adjudicative bodies as provide that the moment the collection case
arbitration boards and member disciplinary reaches the hands of the lawyer, the tenant
committees of trade and professional becomes liable for the payment of attorneys
associations. fees. Since most of these tenants are afraid to
face court litigation, they would rather
Essential difference between negotiation and sacrifice paying the lawyers fees, than go to
litigation: court with the risk of being evicted and incur
1. In litigation a third party decides issues unnecessary expenses of litigation.
involving others;
2. In negotiation parties with conflicting In rents, there is more than meets the eye in
interests seek resolve or accommodate to the demand letter signed by the lawyer
them by mutual agreement among accompanied by threats of eviction. A
themselves. demand letter giving the lessee a specific
period within which to comply at the risk of
How to proceed effectively in uncontested being dragged into an unlawful detainer suit
annulment suits. for failure to comply creates a feeling of
If a lawyer wants to end the litigation insecurity and mental torture that compel the
very quickly in an annulment of delinquent tenant to comply and comply
marriage suit, all that the parties have speedily.
got to do is to arrange thru their
counsels for an uncontested litigation Eviction - corollary to rent collection process
(non-contendere). This is achieved by is the remedy of eviction when all avenues
an out of court understanding that the for settlement have collapsed.
defendant should not answer the A certain gray area in ejectment cases
complaint, from which the court may relates to the procedure of appeal.
proceed to calendar the case for While the right to appeal a final
hearing during which the defendant judgment of the court is granted by
law to a losing party in an unlawful The term specialist is usually used to refer to
detainer case, the same judgment is what a worker does, to wit:
immediately executory unless the
1. The task performs;
defendant has perfected an appeal to
2. The goods or services he produces;
the Regional Trial Court. 3. The person he works for or with;
4. The place where he works.
Under Rule 70 of the Rules of Court, the
appeals not deemed perfected to stay the
A specialist refers to someone who
execution of the judgment unless the
defendant comply with the following specializes or is highly competent at
requisites: performing a specified kind of work or
1. Posting of supersedeas bond in the practice.
amount to be fixed by the court
conditioned to answer for all losses A general practitioner is one who is willing to
and damages that plaintiff may suffer represent almost any kind of client in almost
should the judgment be affirmed on any kind of matter if the client will pay the
appeal: practitioners going rate.
2. Payment of periodic deposits to By the test of acceptability, a general
answer for the reasonable use and practitioner may also be a specialist
occupation of the premises down to providing that remains willing to take a
the final judgment by the appellate sufficiently broad range of matters and
court and during the pendency of the clients in addition to those in his specialty.
appeal.
Chapter 3
A problem area however may arise from Clinical Legal Education Program
the delayed filing of supersedeas bond.
There is difficulty sometimes in securing a. Interview of Client
the supersedeas bond from bonding b. Investigation
companies, hence, delay in the filing c. Preparation of Demand Letter
thereof often result in the immediate d. Negotiation
execution of the decision of the lower e. Filing of the complaint
court, unless the matter is elevated to the f. Trial
higher court purposely to determine g. Provisional Remedies
whether there is delay in the posting of h. Memorandum
supersedeas bond. This is a matter of i. Appeals and Special Civil Actions
technicality which lawyers usually avail j. Comments and Briefs
of, so that the center of controversy
where the case is elevated will devolve A. Interview of Client
more on whether or not there is delay in (1) Establish items of attorney-client
the submission of the supersedeas bond relationship
rather than the merits of the case. - Best proof: written contract of lease of
G. Acting as Executor or Trustee services or retainership contract.
Having acquired sufficient knowledge and The client should be made aware of his
identification of the testators properties, the responsibilities towards the lawyer:
executor who drafts the will is the logical a. Lawyer is entitled to attorneys fees.
b. Client cannot dismiss lawyer at will.
person to act as trustee in the management of
real and personal properties of the decedent Lawyer may withdraw his services under any
in his fiduciary capacity. Except with respect of ff. services:
to large estates management of which is a. When client pursues an illegal or
better left to the care of banks that specialize immoral course of action in
connection with the matter he is
in trusteeship tasks.
handling
H. Specialization
b. When the client insists that the lawyer
pursue a conduct violative of these In development of theory, the one that
canons and rules could be proved successfully in court
c. When his inability to work with co- should be adopted.
counsel will not promote the best Theory adopted must be consistent with
interest of the client remedies and reliefs to be availed of
d. When the mental or physical under Rules of Court.
condition of the lawyer renders it
difficult for him to carry out the B. Investigation
employment effectively
e. When the client deliberately fails to A. Ocular Inspection (a kind of mode of
pay the fees for the services or fails to discovery, also known as view of an object)
comply with retainer agreement Rules of Court, Rule 27, Section 1,
f. Other similar cases Motion for production or inspection;
order: Upon motion of any party showing
Lawyers authority to control trial is limited to good cause therefor, the court in which an
matters of procedure. action is pending may:
(2) Determine Facts (narration by client) 1. order any party to produce and permit
(3) Be frank to client (ascertain truthness
the inspection and copying or
of narration thru warnings)
(4) Avoid frequent interruptions (unless photographing, by or on behalf of the
absolutely necessary to prove a point) moving party, of any designated
(5) Conduct interview with language the documents, papers, books, accounts,
witness speaks letters, photographs, objects or
(6) Reduce to writing narration of tangible things, not privileged, which
witnesses
constitute or contain evidence material
(7) Interview all available witnesses
(8) Trial brief preparation (for more to any matter involved in the action
effective and systematic presentation and which are in his possession, custody
of evidence) or control, or
(9) Determine clients needs ands and 2. Order any party to permit entry upon
priorities (scope should cover designated land or other property in
questions regarding clients priorities his possession or control for the
and needs that produce immediate
purpose of inspecting, measuring,
results)
(10) Amicable settlements still the surveying, or photographing the
best policy property or any designated relevant
(11) Determine the elements of object or operation thereon. The order
potential claims, defenses, remedies shall specify the time, place and
and counterclaims manner of making the inspection and
(12) Analysis and development of taking copies and photographs, and
theory
may prescribe such terms and
- Research pertinent legal
provisions applicable of both conditions as are just.
substantial and procedural aspect.
Resorted to in:
Suggested reference in research area: 1. Actions for recovery of possession and
a. SC decisions ownership of real property
b. Phil Reports 2. Annulment of title
c. SCRA 3. Eminent domain
d. Corpus Juris Secudum
4. Ejectment proceedings
e. Treatises and legal writings
f. Law textbooks 5. Land registration cases
g. Rules of Court; Interim Rules of 6. Criminal prosecutions for usurpation of
Court real rights over real property
h. NCC, RPC 7. Murder or homicide where place of
i. Opinions of Justice Secretary incident is in issue
j. CA decisions
8. Theft or robbery in order to appraise the correlative obligation on the part of the
court whether or not the crime was police investigator to explain and
committed in an enclosed premises contemplate an effective communication that
results in an understanding of what is
9. Arson
conveyed. Short of this, there is a denial of
10. Crimes of trespass to private property or the right, as it cannot truly be said that the
dwelling accused has been informed of his right.
a. in order to determine the (People vs. Newman)
probability or improbability of the When the Constitution requires a person
accused to commit trespass under investigation to be informed of his
considering the physical condition right to remain silent and to counsel, it must
be presumed to contemplate the
of the dwelling, or
transmission of meaningful information
b. whether or not the place intended rather than just the ceremonial and
for entrance is restricted to the perfunctory recitation of an abstract
public constitutional principle. (People vs.
11. Vehicular incidents Nicandro)
a. to determine the point of impact, for waiver of right to counsel to be valid, it
b. to find traces of tiremarks, must be in writing and in the presence of
counsel. Extra-judicial confessions taken
c. to determine the relative distance
without the assistance of counsel is
of one vehicle to another from the inadmissible in evidence. (People vs.
time of impact and thereafter for Albofera)
the purpose of finding whether the while the right to counsel may be waived,
erring vehicle was running at the such waiver must be done voluntarily,
speed faster than that allowed by knowingly and intelligently, and made in the
presence of the accuseds lawyer. If the
law, or
records do not show that the accused was
d. the distance where the body of the assisted by counsel in making his waiver, this
victim was thrown from the point defect nullifies and renders inadmissible in
of impact evidence his confession. (People vs. Nolasco)
B. Determine the evidence or the lack of it E. Basic steps in taking valid extra-judicial
Before the drafting of any pleading or filing of confession
a criminal complaint, the lawyer should know 1. At the time of the arrest, the arresting
as a result of ocular inspection whether he officer shall inform the person
could build a case from his findings and be arrested of the reason for the arrest;
able to sustain them in court
2. He must be shown the warrant of
C. Extra-judicial confession (its probative value)
arrest, if any;
For an extra-judicial confession to sustain a
judgment of conviction to sustain a judgment 3. He shall be informed of his
of conviction it must be corroborated by constitutional right to remain silent
evidence of corpus delicti. and to counsel;
Tests of admissibility: 4. He must be informed that any
1. Whether or not it could pass the test of statement that he might make could
voluntariness and the requirements set be used against him;
down by the Supreme Court in the case of 5. The person arrested shall have the
People vs. Galit right and be given sufficient
2. Whether evidence of corpus delicti is opportunity to communicate with his
sufficient to corroborate such confession lawyer of his own choice, a relative, or
3. Whether or not sufficient warnings to the anyone he chooses by the most
accused were made before the taking of expedient means, by telephone if
his confession of his right to counsel possible, or by letter or messenger;
D. Doctrines on extra-judicial confession 6. If such person arrested cannot afford
The right of a person under custodial the services of his own counsel, he
interrogation to be informed of his right to
must be provided with a competent
remain silent and to counsel implies a
and independent counsel by the the presence of his counsel or upon a
investigating officer; valid waiver, the same shall be
7. The extrajudicial confession shall then attested and signed by the
be reduced to writing and signed by investigating officer and any of the
the person arrested, detained or parents, or elder brother or sister, or
under custodial investigation in the his spouse or municipal mayor,
presence of his own counsel or one municipal judge, district supervisor,
provided by the investigating officer; or priest or minister of the gospel
8. In case the person arrested, detained chosen by him
or under custodial investigation has F. Police Report, Medical Report, Autopsy
no counsel or in the absence of one Report, etc.
provided by the investigating officer, G. Interview of witnesses
no custodial investigation shall be The end in view would be to evaluate
conducted and the suspected person whether you have a sufficient cause of action
can only be detained in accordance or defense, or a case to build from the
gathered evidence, the primary source of
with Article 125 of the Revised Penal
which is the complainant or plaintiff himself
Code; and his witnesses.
9. Should the person arrested, detained H. Plans and Photographs
or under custodial investigation waive Photographs may be presented as evidence
his right to counsel, such waiver to prove the following:
which is in writing shall not be valid 1. To show the scene of the crime
unless made with the assistance of (picture need not show the complete
counsel; premises) sometimes with the body of
10. Should the person arrested, detained the victim still at the scene;
or under custodial investigation 2. To show the victim of an assault or
choose to sign the extra-judicial homicide;
confession upon a valid waiver after 3. To show the identity of the persons
its contents have been explained to alive or dead, including the defendant,
him and understood by him in the the victim or his remains;
language of his own tongue, he may 4. To show wound or other physical
sign the same in the presence of any of injuries, or that the child or animal has
his parents, elder brothers and sisters, been ill-treated or not properly fed;
his spouse, the municipal mayor, the 5. To show the fruits of the crime,
municipal judge, district supervisor, contraband and the weapons used;
or priest r minister of the gospel as 6. To supply facsimiles of public records;
chosen by him, otherwise, such extra- 7. To illustrate handwriting testimony
judicial confession shall be and finger-print testimony;
inadmissible as evidence in any 8. To rebut testimony of the other side.
proceeding;
C. Preparation of Demand
11. Any waiver by a person arrested or
detained under the provisions of Time to prepare a letter of demand: When (1) all
Article 125 of the Revised Penal Code, material evidence has been gathered after an
or under custodial investigation, shall extensive interview of your client and witnesses,
be in writing and signed by such and (2) having conductive objective evaluation
person in the presence of his counsel; of such evidence, and (3) you are convinced that
otherwise the waiver shall be null and there exists a valid cause of action.
Advantage of settlement: Once extrajudicial
void and of no effect (RA 7438); and
settlement is forged, the compromise agreement
12. After the person arrested or detained shall be subject to the approval of the court and
or under custodial investigation has violation thereof can be a ground for contempt
signed the extrajudicial confession in proceedings against the rebellious litigant.
Reminders:
The letter of demand should be couched 1. Characteristics
in the language of a lawyer with a brief - conciliatory in nature participated in by
reminder in the opening statement of two or more parties usually with the
assistance of their respective counsels
defendants violation of plaintiffs right.
The violation may be premised on - a key to judicial action that precedes a
defendants failure to live up to his compromise agreement usually perfected
presentation under a contract, or to during pre-trial conferences developing
observe with his obligation created by into a guideline for the courts final
law. judgment
If there is any amount involved, then the
- informal talks start between counsels of
demand letter should specify the proper both or multiple interested parties-
amount of which defendant is liable with clients, or even by the parties themselves,
interest payable up to the date of actual developing into formal conferences in the
payment, otherwise, defendant should be presence of the parties or on prior
charged for payment of attorneys fees consultation with them
and the costs of the litigation should the
Factors influencing negotiation:
matter eventually reach the court.
a. Fear of litigation
Your letter should be closed with a To all potential litigants, the nightmare
reasonable time allowance to comply of court litigation possible of wrecking
within a period of not less than 5 to 10 their family lives and future of their
days from receipt. children is simply uncontrollable and
real.
Sample:
Place and Date b. Fear of incurring unnecessary
Mrs. Consuelo de Bobo expenses of litigation
Navotas, Metro Manila Almost every potential litigant is
hounded by the prospect of incurring
Madam: unnecessary expenses of litigation.
Many litigants who before being
My client Jose Purgatorio came to me dragged into litigation were wealthy
complaining about your failure to make good and financially stable, have become
your promissory note, despite repeated phone destitute and mentally unbalanced after
reminders, in the sum of P50,000.00, on or a harrowing in court battles.
before April 30, 1994 (photo copy of which is
hereto attached). c. Fear of suffering mental torture,
anxiety, social humiliation, character
While the court action appears to be convenient assassination and family ruin
under the circumstances, however, in order to When the pressure amounts everyday
preserve our cordial relations, and to avoid and the clients is being attacked by
unnecessary expenses of litigation, which will nervous tick and gripped by the feeling
entail payment of attorneys fees and costs of the of insecurity, the urge to negotiate
suit, we have decided to give you this last chance becomes irresistible.
to honor your commitment.
d. Desire on the part of the lawyers
In view thereof, please reach us thru our to rake fat incentives without
telephone number which you already have, if you undergoing tedious court hearings
are ready with the amount, or simply send It is the desire of every practicing
payment by mail or any mode of payment most lawyer to rake handsome fees that is the
expedient for you within 10 days from receipt source of his inspiration to serve the
hereof. Otherwise, much to our regret, we shall interest of his client. However, there is a
be constrained to bring this matter to court for limit to the right of the lawyer to charge
the protection of our clients rights and interests. professional fee that is due to him, and
that it must not be unconscionable and
D. Negotiation champertous. And provided further,
that it does not violate the provisions of
Article 1491, New Civil Code. Moreover, When the case has been placed at the trial
it is the desire of every lawyer that if he calendar, the first task of the court is to call
could realize much the same if not more the parties to a pre-trial conference.
lucre thru negotiation, than undergoing
a tedious court trial, he would prefer to Under the Rules of Court, pre-trial is
pursue the former option. mandatory in the Regional Trial Court.
e. Impelling force exerted by The judge is likened to a conductor in a

interested parties to gain unusual concert who leads the orchestra with his
advantage from out of court baton, and a master of ceremonies in a
settlement program or stage show. As floor manager
There are persons who not being who controls the show and tells the parties
lawyers, act as brokers or agents who to start and stop talking.
are interested in realizing fat
commissions. They are the aggressive 4. Advance opinion of Presiding Judge
breed of unscrupulous money makers not pre-judgment
and mercenary workers who volunteer
their services to lawyers and Justice Antonio Barredo In a pre-trial, the
prospective litigants by making Judge has to prejudge in order to lead and
proposals to the adverse party in the influence the parties to come to an
hope of receiving part of the bargain. agreement. Pre-judgment means the Judge
forms his own opinion before he reads the
f. Psychological pressure induced by pleadings. But when the Judge can tell from
court warnings and active the pleadings what the law is, that is
participation advanced judgment.
There is no forceful factor more
effective in influencing negotiation than Do not stop negotiating unless and until
the warnings made by the court and its you are of the honest belief that all avenues
active participation in bringing the and your talent as an effective negotiator
parties to the negotiation table. have been applied but failed.
2. Presiding judge as effective negotiator 5. Preliminary Conference pursuant to

Rule 48 precedes pre-trial
Judges play an active role of a chief
negotiator and master of ceremonies by A.M. No. 03-1-09-SC
shuttling from one party to another inside
the courtroom and supplying feedbacks RE: GUIDELINES TO BE OBSERVED BY
from one party to another regarding the TRIAL COURT JUDGES AND CLERKS OF
terms and conditions they would propose, COURT IN THE CONDUCT OF PRE-TRIAL
and going out of his way convincing the AND USE OF DEPOSITION-DISCOVERY
parties that this or that term will redound MEASURES.
to their mutual welfare and benefit.
The "use of pre-trial and the deposition-
One cardinal virtue considered so vital to discovery measures are undeniably
an effective negotiator is a reputation for important and vital components of case
integrity and sincerity. For once suspicion management in trial courts." To abbreviate
of self-interest on the part of the court proceedings, ensure prompt
negotiator-Judge creeps into the head of the disposition of cases and decongest court
parties, no amount of hard bargaining and dockets, and to further implement the pre-
power of persuasion can sway their trial guidelines laid down in Administrative
stubborn minds. Circular No. 3-99 dated January 15, 1999
and except as otherwise specifically
3. Pre-Trial negotiation techniques provided for in other special rules, the
following guidelines are issued for the
The role of the Judge as a leader in the observance and guidance of trail judges and
negotiation process becomes more clerks of court.
dominant at the pre-trial stage.
I. PRE-TRIAL e. A manifestation of their having availed or
A. Civil Cases their intention to avail themselves of
1. Within one day from receipt of the discovery procedures or referral to
complaint: commissioners; and
1.1. Summons shall be prepared and shall f. The number and names of the witnesses,
contain a reminder to defendant to observe the substance of their testimonies, and
restraint in filing a motion to dismiss and the approximate number of hours that
instead allege the grounds thereof as will be required by the parties for the
defenses in the Answer, in conformity with presentation of their respective
IBP-OCA Memorandum on Policy Guidelines witnesses.
dated March 12, 2002. A copy of the
summons is hereto attached as Annex "A;" A copy of the Notice of Pre-trial
and Conference is hereto attached as Annex
1.2. The court shall issue an order requiring "B."
the parties to avail of interrogatories to
parties under Rule 25 and request for The rule on the contents of the
admission by adverse party under Rule 26 pre-trial brief must strictly be complied
or at their discretion make use of with.
depositions under Rule 23 or other
measures under Rules 27 and 28 within 5 The parties are bound by the
days from the filing of the answer. A copy of representations and statements in their
the order shall be served upon the respective pre-trial briefs.
defendant together with the summons and
upon the plaintiff. Mandatory mediation
Within 5 days from date of filing of the reply, 3. At the start of the pre-trial
the plaintiff must promptly move ex parte conference, the judge shall immediately
that the case be set for pre-trial conference. refer the parties and/or their counsel if
If the plaintiff fails to file said motion within authorized by their clients to the PMC
the given period, the Branch COC shall issue mediation unit for purposes of mediation
a notice of pre-trial. if available. If mediation fails, the judge
will schedule the continuance of the pre-
2. The parties shall submit, at least 3 days trial conference. Before the continuance,
before the pre-trial, pre-trial briefs the Judge may refer the case to the
containing the following: Branch COC for a preliminary conference
to assist the parties in reaching a
a. A statement of their willingness to enter settlement, to mark the documents or
into an amicable settlement indicating the exhibits to be presented by the parties
desired terms thereof or to submit the and copies thereof to be attached to the
case to any of the alternative modes of records after comparison and to consider
dispute resolution; such other matters as may aid in its
prompt disposition.
b. A summary of admitted facts and
proposed stipulation of facts; During the preliminary conference, the
c. The issues to be tried or resolved; Branch COC shall also ascertain from the parties
the undisputed facts and admissions on the
d. The documents or exhibits to be genuineness and due execution of the documents
presented, stating the purpose thereof. marked as exhibits. The proceedings during .the
(No evidence shall be allowed to be preliminary conference shall be recorded in the
presented and offered during the trial "Minutes of Preliminary Conference" to be
in support of a party's evidence-in- signed by both parties and/or counsel, the form
chief other than those that had been of which is hereto attached as Annex. "C".
earlier identified and pre-marked
during the pre-trial, except if allowed The minutes of preliminary conference and
by the court for good cause shown); the exhibits shall be attached by the Branch COC
to the case record before the pre-trial.
4. Before the continuation of the pre-trial b. Inquire if there are cases arising out of
conference, the judge must study all the the same facts pending before other
pleadings of the case, and determine the courts and order its consolidation if
issues thereof and the respective warranted;
positions of the parties thereon to enable
him to intelligently steer the parties c. Inquire if the pleadings are in order. If
toward a possible amicable settlement of not, order the amendments if necessary;
the case, or, at the very least, to help
reduce and limit the issues. The judge d. Inquire if interlocutory issues are
should not allow the termination of pre- involved and resolve the same;
trial simply because of the manifestation
of the parties that they cannot settle the e. Consider the adding or dropping of
case. He should expose the parties to the parties;
advantages of pre-trial. He must also be
mindful that there are other important f. Scrutinize every single allegation of the
aspects of the pre-trial that ought to be complaint, answer and other pleadings
taken up to expedite the disposition of the and attachments thereto and the
case. contents of documents and all other
evidence identified and pre-marked
The Judge with all tact, patience, impartiality during pre-trial in determining further
and with due regard to the rights of the parties admissions of facts and documents. To
shall endeavor to persuade them to arrive at a obtain admissions, the Court shall ask
settlement of the dispute. The court shall initially the parties to submit the depositions
ask the parties and their lawyers if an amicable taken under Rule 23, the answers to
settlement of the case is possible. If not, the written interrogatories under Rule 25
judge may confer with the parties with the and the answers to request for
opposing counsel to consider the following: admissions by the adverse party under
Rule 26. It may also require the
a. Given the evidence of the plaintiff production of documents or things
presented in his pre-trial brief to support requested by a party under Rule 27 and
his claim, what manner of compromise is the results of the physical and mental
considered acceptable to the defendant at examination of persons under Rule 28;
the present stage?
b. Given the evidence of the defendant g. Define and simplify the factual and legal
described in his pre-trial brief to support issues arising from the pleadings.
his defense, what manner of compromise Uncontroverted issues and frivolous
is considered acceptable to the plaintiff at claims or defenses should be eliminated.
the present stage? For each factual issue, the
parties/counsel shall state all the
1. If not successful, the court shall confer evidence to support their positions
with the party and his counsel separately. thereon. For each legal issue,
parties/counsel shall state the applicable
2. If the manner of compromise is not law and jurisprudence supporting their
acceptable, the judge shall confer with the respective positions thereon. If only legal
parties without their counsel for the same issues are presented, the judge shall
purpose of settlement. require the parties to submit their
respective memoranda and the court can
5. If all efforts to settle fail, the trial judge proceed to render judgment;
shall:
h. Determine the propriety of rendering a
a. Adopt the minutes of preliminary summary judgment dismissing the case
conference as part of the pre-trial based on the disclosures made at the
proceedings and confirm markings of pre-trial or a judgment based on the
exhibits or substituted photocopies and pleadings, evidence identified and
admissions on the genuineness and due admissions made during pre-trial;
execution of documents;
i. Ask parties to agree on the specific trial
dates for continuous trial in accordance
with Circular No. 1-89 dated January 19, n. Refer the case to a trial by commissioner
1989; adhere to the case flow chart under Rule 32.
determined by the court, which shall
contain the different stages of the 2. During the pre-trial, the judge shall be
proceedings up to the promulgation of the one to ask questions on issues raised
the decision and use the time frame for therein and all questions or comments
each stage in setting the trial dates. The by counsel or parties must be directed to
One-Day Examination of Witness Rule, the judge to avoid hostilities between the
that is, a witness has to be fully examined parties.
in 1 day only, shall be strictly adhered to
subject to the courts' discretion during 6. The trial judge shall schedule the pre-
trial on whether or not to extend the trial in the afternoon sessions and set as
direct and/or cross-examination for many pre-trial conferences as may be
justifiable reasons. On the last hearing necessary.
day allotted for each party, he is required 7. All proceedings during the pre-trial
to make his formal offer of evidence after shall be recorded. The minutes of each
the presentation of his last witness and pre-trial conference shall contain matters
the opposing party is required to taken up therein more particularly
immediately interpose his objection admissions of facts and exhibits and shall
thereto. Thereafter, the Judge shall make be signed by the parties and their counsel.
the ruling on the offer of evidence in
open court. However the judge has the 8. The judge shall issue the required Pre-
discretion to allow the offer of evidence Trial Order within 10 days after the
in writing in conformity with Section 35, termination of the pre-trial. Said Order
Rule 132; shall bind the parties, limit the trial to
matters not disposed of and control the
j. Determine the most important witnesses course of the action during the trial. A
to be heard and limit the number of sample Pre-Trial Order is hereto attached
witnesses (Most Important Witness as Annex "D."
Rule). The facts to be proven by each
witness and the approximate number of However, the Court may opt to dictate the
hours per witness shall be fixed; Pre-Trial Order in open court in the
presence of the parties and their counsel
k. At his discretion, order the parties to use and with the use of a computer, shall have
the affidavits of witnesses as direct the same immediately finalized and
testimonies subject to the right to object printed. Once finished, the parties and/or
to inadmissible portions thereof and to their counsel shall sign the same to
the right of cross-examination by the manifest their conformity thereto.
other party. The affidavits shall be based
on personal knowledge, shall set forth 9. The court shall endeavor to make the
facts as would be admissible in evidence, parties agree to an equitable compromise
and shall show affirmatively that the or settlement at any stage of the
affiant is competent to testify to the proceedings before rendition of judgment.
matters stated therein. The affidavits
shall be in question and answer form, B. Criminal Cases
and shall comply with the rules on 1. Before arraignment, the Court shall
admissibility of evidence; issue an order directing the public
prosecutor to submit the record of the
l. Require the parties and/or counsel to preliminary investigation to the Branch
submit to the Branch COC the names, COC for the latter to attach the same to the
addresses and contact numbers of the record of the criminal case.
witnesses to be summoned by subpoena;
Where the accused is under preventive
m. Order the delegation of the reception of detention, his case shall be raffled and its
evidence to the Branch COC under Rule records transmitted to the judge to whom
30; and the case was raffled within three days
from the filing of the complaint or
information. The accused shall be
arraigned within ten days from the date of 4. Before the pre-trial conference the judge
the raffle. The pre-trial of his case shall be must study the allegations of the
held within ten days after arraignment information, the statements in the
unless a shorter period is provided for by affidavits of witnesses and other
law. documentary evidence which form part of
the record of the preliminary
2. After the arraignment, the court shall investigation.
forthwith set the pre-trial conference
within thirty days from the date of 5. During the pre-trial, except for
arraignment, and issue an order: (a) violations of the Comprehensive
requiring the private offended party to Dangerous Drugs Act of 2002, the trial
appear thereat for purposes of plea- judge shall consider plea-bargaining
bargaining except for violations of the arrangements. Where the prosecution and
Comprehensive Dangerous Drugs Act of the offended party agree to the plea
2002, and for other matters requiring his offered by the accused, the court shall:
presence; (b) referring the case to the
Branch COC, if warranted, for a 1. Issue an order which contains the
preliminary conference to be set at least plea bargaining arrived at;
three days prior to the pre-trial to mark 2. Proceed to receive evidence on the
the documents or exhibits to be presented civil aspect of the case; and
by the parties and copies thereof to be 3. Render and promulgate judgment of
attached to the records after comparison conviction, including the civil
and to consider other matters as may aid liability or damages duly established
in its prompt disposition; and (c) by the evidence.
informing the parties that no evidence
shall be allowed to be presented and 6. When plea bargaining fails, the Court
offered during the trial other than those shall:
identified and marked during the pre-trial
except when allowed by the court for good a. Adopt the minutes of preliminary
cause shown. A copy of the order is hereto conference as part of the pre-trial
attached as Annex "E". In mediatable cases, proceedings, confirm markings of exhibits
the judge shall refer the parties and their or substituted photocopies and admissions
counsel to the PMC unit for purposes of on the genuineness and due execution of
mediation if available. documents and list object and testimonial
evidence;
3. During the preliminary conference, the
Branch COC shall assist the parties in b. Scrutinize every allegation of the
reaching a settlement of the civil aspect of information and the statements in the
the case, mark the documents to be affidavits and other documents which
presented as exhibits and copies thereof form part of the record of the preliminary
attached to the records after comparison, investigation and other documents
ascertain from the parties the undisputed identified and marked as exhibits in
facts and admissions on the genuineness determining farther admissions of facts,
and due execution of documents marked documents and in particular as to the
as exhibits and consider such other following:
matters as may aid in the prompt
disposition of the case. The proceedings 1. The identity of the accused;
during the preliminary conference shall be 2. court's territorial jurisdiction
recorded in the Minutes of Preliminary relative to the offense/s charged;
Conference to be signed by both parties 3. qualification of expert witness/es;
and counsel. (Please see Annex "B") 4. amount of damages;
5. genuineness and due execution of
The Minutes of Preliminary Conference documents;
and the exhibits shall be attached by the 6. the cause of death or injury, in
Branch COC to the case record before the proper cases;
pre-trial. 7. adoption of any evidence presented
during the preliminary investigation;
8. disclosure of defenses of alibi, Annex "C" - Minutes of Preliminary
insanity, self-defense, exercise of public Conference
authority and justifying or exempting Annex "D" - Pre-trial Order in Civil Cases
circumstances; and Annex "E" - Notice of Pre-trial Conference
9. such other matters that would limit in Criminal Cases
the facts in issue.
6. S.C. Circular No. 1-89, dated January
c. Define factual and legal issues; 19, 1989
d. Ask parties to agree on the specific trial Pre-Trial elements:

dates and adhere to the flow chart
determined by the court which shall a. The parties shall submit at least 3 days
contain the time frames for the different before the conference pre-trial briefs
stages of the proceeding up to containing the following:
promulgation of decision and use the time
frame for each stage in setting the trial 1. Brief statement of the parties'
dates; respective claims and defenses;
2. The number of witnesses to be
e. Require the parties to submit to the presented;
Branch COC the names, addresses and 3. An abstract of the testimonies of
contact numbers of witnesses that need to witnesses to be presented by the
be summoned by subpoena; and parties, and the approximate number
of hours that will be required by them
f. Consider modification of order of trial if for the presentation of their
the accused admits the charge but respective evidence;
interposes a lawful defense. 4. Copies of all documents intended to be
presented;
7. During the pre-trial, the judge shall be the 5. Admissions;
one to ask questions on issues raised 6. Applicable laws and jurisprudence;
therein and all questions must be directed 7. The parties' respective statement of
to him to avoid hostilities between parties. the issues; and
8. All agreements or admissions made or 8. The available trial dates of counsel for
entered during the pre-trial conference complete evidence presentation,
shall be reduced in writing and signed by which must be within a period of
the accused and counsel; otherwise, they three months from the first day of
cannot be used against the accused. The trial.
agreements covering the matters referred
to in Section 1 of Rule 118 shall be b. At the pre-trial conference:
approved by the court.
9. All proceedings during the pre-trial shall 1. The judge with all tact and patience shall
be recorded, the transcripts prepared and endeavor to persuade the parties to
the minutes signed by the parties and/or arrive at a settlement of the dispute, or
their counsels. agree to stipulation of facts including the
10.The trial judge shall issue a Pre-trial Order authenticity of documents to be
within 10 days after the termination of the submitted during the trial.
pre-trial setting forth the actions taken 2. The judge shall then define the factual
during the pre-trial conference, the facts issues arising from the pleadings and
stipulated, the admissions made, evidence endeavor to narrow them down to
marked, the number of witnesses to be material issues.
presented and the schedule of trial. Said 3. If only legal issues are presented, the
Order shall bind the parties, limit the trial judge shall require the parties to submit
to matters not disposed of and control the their respective memoranda on the
course the action during the trial. issues, and shall render judgment
thereon.
Annex "A" - Summons
Annex "B" - Notice of Pre-trial Conference 4. If a trial is to be conducted, the judge shall
in Civil Cases fix the necessary trial dates to complete
presentation of evidence by both parties 3. Jurisdiction over the RES- obtained by
within 90 days from initial hearing. seizure of the property under the legal
process of the court, whereby it is held to
c. The pre-trial order shall include the following: abide by such order as the court makes
4. TERRITORIAL Jurisdiction- the power of
1. A statement of the nature of the case; the court to exercise jurisdiction to
2. The stipulations or admissions of the adjudicate cases committed or occurred
parties including testimonial and within the territory defined by law or SC.
documentary evidence; a. Civil(Venue)- can be subject to the
3. The issues involved: (1) factual and (2) agreement of the parties
legal; b. Criminal-the court must have
4. Number of witnesses; jurisdiction over
5. The dates of trial. i. The subject matter of the
offense
d. This is without prejudice to a finding that ii. The territory wherein one
either judgment on the pleadings or summary of the essential ingredients
judgment is appropriate. of the offense took place
iii. The parties
e. Failure to file pre-trial briefs may be given the c. Exceptions:
same effect as the failure to appear at the pre- i. Meritorious cases where
trial. health condition of the
accused poses to be a great
E. Filing of a Complaint consideration- venue may
- Filed when all the avenues for negotiation and be fixed by SC
amicable settlement have failed ii. Continuing Offense- where
any of the essential
Jurisdiction: ingredients of the crime
- The power of the Court to decide a matter took place. Courts of those
in controversy and presupposes the places exercise concurrent
existence of a duly constituted court with Jurisdiction
control over the subject matter and the 1. Except when case
parties falls within
- Authority of the court to hear and jurisdiction of
determine a cause or the right to act in a SANDIGANBAYAN
case iii. Libel Cases
Kinds: 1. Where the libelous
1. Jurisdiction over the SUBJECT MATTER- material is printed
the power to hear and determine cases of and 1st published
general class to which the proceeding in 2. Or Where any of the
question belongs offended party
a. The power to deal with the general actually resides
subject involved in the action 3. Or if public officer-
b. Acquired or conferred by law where he holds
c. Objections based on lack of office
jurisdiction cannot be waived 4.
2. Jurisdiction over the PERSON-the power Jurisdiction vs. Exercise of Jurisdiction
of the court or Quasi-judicial or J- the authority to decide a cause
administrative body to subject the person EJ- the decision of all other question arising in
of the defendant and to bind him of all the case
judgments and orders of the said court or
body that it may render with the force of Jurisdiction of MTC- (CAMP)
law. 1. EOJ over Civil Actions and Probate
a. Acquired by either voluntary proceedings, testate or intestate where
appearance/ submission to the the value of the personal property or
court/body or by coercive power estate does not exceed 200,000 or
exerted over the person of the 400,000 if metro manila
defendant (warrant) 2. EOJ over Admiralty and Maritime cases
b. where claim does not exceed 200,000
** The claim is exclusive of interest, damages of 4. Annulment of Judgment
whatever kind, attorneys fees, litigation 5. Recession of Contract
expenses and cost
Examples of Pleadings that must be verified
Cases under Summary Procedure ** must be accompanied by a certification of
Non-Forum Shopping pursuant to SC Circular 04-
Civil Cases 94
1. All Cases of Forcible entry and Unlawful 1. Petition for Certiorari, prohibition,
Detainer regardless of amount mandamus, quo warranto, injunction,
2. All other Civil cases except Probate where habeas corpus
the total amount of claim does not exceed 2. Petition for change of name
10,000 3. Petition for dissolution of corporation
Criminal Cases 4. Complaint with prayer of attachment
1. Violation of Traffic laws and regulations 5. Petition for custody of minor
2. Violation of rental law 6. Petition for registration of Articles of
3. Violation of municipal and city ordinances Incorporation with SEC
4. All other criminal cases where the penalty 7. Complaint for annulment of title with TRO
of imprisonment does not exceed 6 and damages
months or a fine not exceeding 1,000
5. Damage to property through criminal Pleadings- is a written allegation of the parties of
negligence if the impossible fine does not their respective claims and defenses submitted
exceed 10,000 to the court for trial and judgment
1. Preparation of Pleading (examples)
Jurisdiction of RTC ( IRAP-JON) a. Complaint for forcible entry and
1. Civil Action Incapable of pecuniary unlawful detainer
estimation b. Answer to complaint of usury
a. Criteria: if the basic issue is c. Complaint for annulment of
something other than the right to marriage
recover a sum of money, where the d. Petition for adoption
money is purely incidental or a 2. Prove only Matters alleged in the pleading
consequence of the primary relief a. Petitioner cannot present evidence
sought for on the matter not alleges in the
2. Civil Action which involve the title to or pleading
possession of Real property or any 3. Causes of Action and defenses
interest there in where the assessed value a. Cause of Action- is the act or
of the property exceeds 20,000 or if in omission by which a party violates
Metro Manila 50,000 a right of another
3. Actions in Admiralty and Maritime b. Relief- the award sought for
Jurisdiction where the demand exceeds c. Defenses- all material allegations
200,000 or If in metro manila 400,000 should be specifically denied and
4. Matters of Probate where the gross value stating the reason of denial by
of estate exceeds 200,00 or if MM 400,000 stating the truth
5. Cases Not within the exclusive i. Failure to make specific
jurisdiction of any court, tribunal or body denial will entitle the
exercising judicial or quasi-judicial plaintiff to move for
functions judgment on the pleading
6. Civil actions and special proceedings ii. General Denial
falling within the EOJ of Juvenile and 1. If on a material fact-
Domestic Relations Court constitute admission
7. Other cases in which the demand, 2. If immaterial-
exclusive of interest exceeds 200,000 or if allowed provided
MM 400,000 made in good faith
4. Motions an application made to a court
Example of actions Incapable of Pecuniary or judge for the purpose of obtaining rule
Estimation or order directing some act to be done in
1. Partition of Land favor of the applicant
2. Expropriation or eminent domain a. Ex. Motion to dismiss, motion for
3. Specific performance bill of particulars, motion for
intervention, motion to quash, counsel of the accused will conduct cross-
motion for attachment examination of witness followed by a re-
b. May be filed during any stage of direct examination by the prosecution on
the proceeding as the need arises matters covered by the cross examination
c. Must be served by the applicant to -Private prosecutor must act with public
all parties concerned at least 3 prosecutor's permission and still subject
days before the date of hearing to latter's control and supervision; The
i. However the court may former's authority may be withdrawn if
hear a motion on a shorter incompetent and unable to protect the
period interest of the State
d. A motion which does not state the English system - Fiscal acts as lawyer of
time and place for the hearing of the state before inferior courts and RTC;
the same, does not comply with Solicitor General for SC and CA
the requirement of the rules and IS
NO MOTION AT ALL. GR: Leading questions (not misleading) not
5. Methods of Discovery- it is a method used allowed in DE, only in Cross Examinations
to discover : Exceptions:
a. what evidence the adverse party is 1. Witness is a child of tender age
going to present at the trial 2. Difficulty in getting answers from a
b. who are the witnesses witness who is:
c. the details about their testimonies 1. Ignorant or feeble-minded
d. where they live and what they are 2. Deaf-mute
going to testify about 3. Illiterate or dull
Purpose- so that before the trial, you already 4. Stupid
know the evidence of the other party
2. Cross Examination
Kinds: - English rule which is followed in our
1. Deposition jurisdiction, allows questions to a witness
2. Request for admission on matters not covered by the DE
3. Physical examination of persons and provided, the purpose is to elicit answers
things that are material and relevant to the issue
4. Production of documents or things Why? To test a witness' credibility, show
5. Physical and mental examination of bias, motive, interest, lack of memory,
persons who are about to depart from the religious following or political color
country - Purpose: to impeach the witness
regarding self-contradictory statements
Q: Is filing a motion to dismiss for lack of cause of made by him
action a GOOD practice?
A: NO, an order to dismiss partakes of a 3. Cross Examination as a double-edged sword
sinperjuico order and merely grants the - -if unwisely, and aimlessly utilized; must
dismissal of the complaint and does not state a be utilized for a purpose, else, may rouse
valid cause of action. But this does not prevent sympathy from the court (widow with
the plaintiff from amending his complaint or respect to the deceased husband's claim)
filing a new complaint containing a valid cause of or attest the witness' credibility
action. - if a direct testimony of a witness does not
It is better to file and answer and use all hurt your cause, simply say "No cross!"
the grounds for a motion as an affirmative - Never cross examine an expert in his own
defense because in this case the court will hear field UNLESS you are conversant about
the case and decide upon the merit thus the subject or in case of flagrant error
constitute res judicata
4. Re-direct and re-cross examination
F.Trial RDE - conducted by plaintiff or prosecution for
the purpose of clarifying matters touched during
Accusatorial Method - trial procedure in our CE
jurisdiction RCE - follows an RDE; conducted by the adverse
1. Direct Examination/Examination in chief party but confined on matters testified during
-Prosecution is the first to conduct RDE
(usually the public prosecutor) and then
*RDE and RCE are subject to the discretion of the Questions on DE
court; conducted only when there is a new a. Must not be leading or misleading
witness or new matters have cropped up during b. Must not call for a conclusion except if witness
the course of RDE and RCE. is an expert
Recall of a witness: c. Must not be incompetent
- Interest of justice d. Must not be irrelevant or immaterial
- After leave of court e. Must not be argumentative
- Testimony is limited to new matters not f. Must not call for hearsay evidence except for
touched during DE or CE due to oversight nor dying declaration or part of res gestae
excusable negligence g. Must not call for a self-incriminating
- not for the purpose of eliciting forgotten testimony
evidence h. Must not be vague or uncertain
i. Must not assume facts not proved
5. Proof of Facts j. Must not be improper
- He who alleges must prove k. Must be responsive to the question asked,
- Better practice to have an arranged pre- else, answer must be stricken from the record
trial brief l. Must not call for an illegal answer
- Documentary evidence and other exhibits m. Must not be repetitious
placed in a separate envelope, folder, with n. Must have a basis or foundation except for
proper markings, title and identification preliminary matters that the question calls for
number of case, name of parties, and a privatized communication
name of court o. Must not violate the best evidence rule
p. Must not be volative of the parole evidence
6. Expert Testimony rule
- separate trial brief for expert testimonies, q. That extrajudicial confession must conform to
witnesses, subject and order of presentation requirements in People v. Galit
Examples: r. Question relates to bad moral character of
a. Medico-legal expert on autopsy report accused except on rebuttal
on crimes against persons s. Question calls for an answer which violates
b. Ballistician of NBI on firearm used the Statute of Frauds
in the crime, ammunitions and cartridges t. Question is harassing the witness
recovered u. Question tends to subject the witness to
c. Handwriting expert on questioned indignity or is unfair to a woman or xoncerns
documents her morality and reputation
d. Fingerprinting expert on finger v. Question is insulting
prints and foot prints from the crime w. Question had already been answered
scene
e. Other experts on forensic and laboratory On cross examination, the following questions
examinations (hair strands, urine or may be objected to:
blood for alcohol/drug) a. That it is argumentative
b. That it has already been answered
7. Objections c. That it calls for a conclusion
- All questions in the course of court d. That the question is insulting
hearing (civil, criminal or administrative), e. Question tends to subject the witness to
must be in the form of a question and indignity or is unfair to a woman or xoncerns
answer method, NOT in an uninterrupted her morality and reputation
manner or narrative form EXCEPT: f. Question is harassing the witness
a. Witness is counsel of a party g. Question is misleading
b. When allowed by the court to describe a h. That it calls for a hearsay evidence
transaction from the beginning as to the i. That it is immaterial, irrelevant, or calls for an
time and place of the action incompetent answer
- Opposing counsel may object to the j. That it is vague
narration of a witness who states matters k. It calls for an illegal answer
that are irrelevant, immaterial or l. It is self-incriminating except that:
incompetent to the issue and ask to arrest 1. Privilege applies only to a natural person,
such narration and strike off the witness' extraction of testimonial responses
answer from the record 2. Applies only to a penal act of the witness
- Other grounds for objection on questions: himself not to a third person
3. Applies only to a fact penalized by law of dealing with (e.g. sharpness of a tool or its
the forum not by a foreign state edge)
4. Applies not merely when the fact is itself - If exhibits cannot be marked, tags are
a penal act, but also when fact would usually attached to them for identification
incriminate witness
8. Exceptions to self-incriminating questions G. PROVISIONAL REMEDIES (SRRRAP)

a. Does not extend to civil actions 1. Attachment
b. Only extends to inculpatory documents - ancillary remedy which can be availed of
and agents in whose possession the only upon existence of a principal action
accused has entrusted the documents - cannot be invoked independently or
c. Does not extend to an act of identification issued separately of the principal action
or comparison - intended to secure the outcome of the trial
d. Accused cannot refuse: for the satisfaction of a pecuniary
1. To appear at the scene of the crime obligation contracted by the defendant or
2. To put on a blouse to see if it fits him or believed to have been contracted by him
her by virtue of a civil obligation or a crime
3. Place a handkerchief over his face - directed to all movable properties of the
4. Stand up and remove his glasses defendant or so much thereof as to satisfy
5. To permit the court to see scars in his plaintiffs claim
body - may be filed at the commencement of the
6. Exhibit his hands action or anytime thereafter before entry
7. Reveal tattoo marks of judgment
8. Discharge prohibited drug from his How enforced?
mouth - By a writ issued by the Sheriff on order of
9. Submit to a face shaving and hair cut the court
10. Submit to a test for alcohol examination Movables properties by attaching
11. Remove article that denies opportunity and safely keeping
for examination like a hat or article hiding Real property filing a copy of the
his face writ with the Register of Deeds in the
12. Submit to physical examination province where property is located
13. Exhibit himself in a manner commonly How dissolved?
seen by public a. Giving security or filing a counter bond
14. Allow taking of then portion of substance with the Clerk of Court or Judge in an
emitting from his body to determine if amount equal to the value of the property
suffering from venereal disease to be determined by the Judge at a proper
15. Place his feet on bloody footprints hearing
16. Pregnancy test b. Showing that order of attachment was
improperly or irregularly issued
- Determination of this question is for the
trial judge 2. Preliminary Injunction
- It is not enough that the witness says that - An order granted at any stage of an action
the answer will incriminate him prior to the final judgment requiring a
- Danger must appear reasonable and real person to refrain from a particular act OR
to the court require the performance of a particular
act in which case it shall be known as
9. Quantum of Proof preliminary mandatory injunction
- Proof beyond reasonable doubt for Classifications of injunction:
criminal prosecution 1. Prohibitory injunction/Mandatory
- Does not mean such a degree as to injunction
exclude possibility of error; Moral 2. a. Preliminary injunction sole object
certainty or that degree of proof which is to preserve status quo until merits
produces conviction in an unprejudiced of the case have been determined
mind is only required b. Final or Permanent injunction
embodied in the final judgment on the
10. Method of Introducing Evidence merits; no longer a provisional
- prove that it is substantially in the same remedy but forms part of the final
condition as it was at the time you are relief
- Is it necessary that preliminary injunction 2. For orderly Administration of justice
should first be issued before granting a 3. Avoid Multiplicity of actions
permanent injunction is granted? NO 4. Afford adequate Protection to
- Preliminary injunction is NOT a proper constitutional rights
remedy to stop infrastructure projects, 5. Where the statute relied upon is
natural resource development projects of Unconstitutional or was declared void
the government, public utility from
transport of goods and commodities, 3. Restraining Order
stevedoring and arrastre contracts (Sec. - Order of the court to maintain status quo
1, P.D. 1818) until the application for preliminary
injunction shall have been determined
Grounds: - Generally granted without notice to the
1. That plaintiff is entitled to the relief opposite party
demanded AND the whole or part of such - Limited lifetime of 20 days within which
relief consists in restraining the the court must act on the application of
commission or continuance of the acts the writ of preliminary injunction
complained of, or in the performance of - The TRO is lifted after 20 days without
an act, either for a limited period or need of a judicial order and this period is
perpetually non-extendible (B.P. Blg. 224)
2. That the commission or continuance of - No second TRO shall be issued after the
some act during the litigation or the non- first one had lost its efficacy
performance thereof would probably - If application for preliminary injunction is
work injustice to the plaintiff denied, TRO is automatically vacated
3. That the defendant is doing, threatens or - Application for TRO is usually made as
is about to do some act probably in part of the motion for preliminary
violation of the plaintiffs rights injunction
respecting the subject of the action and
tending to render the judgment therefrom 4. Receivership
ineffectual - A receiver is an indifferent person
appointed by the court who acts on behalf
Requirements: of all party litigants, not in favor of one
1. Verified complaint party alone, to preserve the property
2. Applicants bond subject of the litigation, to hold
3. Defendant must be heard (PI cannot be possession and control of the property,
issued ex-parte, there must always be a and to exercise such power and authority
hearing) as may be granted by the court and
- General averment of irreparable injury is dispose of such property in a manner
insufficient directed by the court
- It must specifically describe in detail the
facts of how or why the supposed injury Requirements:
would be irreparable - Petition filed under oath not by mere
motion
General Rule: No injunction to restrain - Supported by affidavits
criminal prosecution - Petitioner must show that he has
Why? interest/lien upon the property subject of
Accused has adequate remedies (by litigation
establishing as a defense that he did Application may be denied if opposing party
not commit the act charged, or statute files a bond executed to the applicant for the
is void, or in case of conviction, payment of damages which the applicant may
appeal) suffer by reason of the appointment of such
Public interest requires that criminal receiver
acts be immediately investigated and
prosecuted for the protection of Powers and duties of a receiver:
society (BriT & ReCoCo, DO TraP)
Exception: (SAMPU) 1. To bring and defend actions in his own
1. Prevent the use of the Strong arm of the name
law in an oppressive and vindictive 2. To take and keep possession of the
manner property in controversy
3. To receive rents
4. To collect debts due to himself as 6. Support pendente lite
receiver, or to the fund, property, estate, - A relief that may be asked pending
person or corporation of which he is a litigation like annulment or legal
receiver separation
5. To compound for and compromise the - Application may be made in the original
same complaint or main action but may
6. To make transfers likewise be made in a separate petition
7. To pay outstanding debts
8. To divide the money and other property Example of cases where available:
among persons legally entitled 1. Wife is forced to leave marital home due
9. To do such other acts as the court may to ill-treatment of husband
authorize 2. Serious disagreement between husband
- Funds in the hands of the receiver may be and wife where wife is forced to leave the
invested at interest only by order of the conjugal home by means of violence
court and prior consent of all the parties *in these cases, wife cannot be compelled
to cohabit, hence, she is entitled to
5. Replevin reasonable maintenance allowance
- delivery by order of the court, of a
personal property by the defendant to the Available defenses:
plaintiff to protect the latters right of 1. Non-existence of marriage
possession to said property and prevent 2. Adultery
the defendant from damaging, destroying 3. Lack of good reason to live separately
or disposing of the same during the with husband
pendency of the suit 4. Wife is more affluent than husband
- plaintiff must give a bond to assure the 5. Husband is unable to give support
return of the property or payment of 6. Wife is convicted of an attempt against
damages to the defendant should life of the
plaintiffs action to recover possession of husband/descendants/ascendant
the property fails 7. Wife accused the husband of a crime
punishable with imprisonment of 6 yrs. or
Plaintiff must show in the complaint: more and accusation is found to be false
a. he is the owner or the property or
entitled to the possession thereof H. Memorandum
b. property is wrongfully detained by
- Generally not indispensable in trial practice - In
defendant
appealed cases from the decision of the inferior
c. property is not taken for a tax assessment
courts, the RTC may require a written
or fine pursuant to law, or seized under
memorandum and decide a case based on the
an execution or attachment against the
records and the memorandum
plaintiff, or if so seized, that it is exempt
d. actual value of the property 1. Advantage of filing a written memorandum
e. plaintiff must execute a bond which is
double the value of the property to -can persuade the court in deciding the case
guarantee payment to the defendant whether in favor or against a party litigant,
should the plaintiff be not entitled to the whenever the judge has no clear grasp of the
possession of the property issues involved in the applicable law and its
*Writ of replevin may be issued ex-parte daw interpretation.
(sa civpro namin, hindi pwede) 2. Guidelines in drafting a good
memorandum
Requisites so that property may be returned
to the defendant: (defendants remedy) 1. Collate all the evidence duly presented during
Within 5 days from the date the sheriff takes the trial and admitted by the court
possession of the property, defendant must 2. Keep reminded about your theory of the case
a. File a counter bond with the clerk of court and the causes of action alleged in your pleading
or judge double the value of the property
AND 3. See to it that all your arguments are directed
b. Furnish the plaintiff a copy of the towards your prayer for relief
undertaking
4. Your line of argument must be attuned to the - 15 days from promulgation or notice of
evidence adduced during the trial and the judgment
allegations in the pleading
- Judgment of acquittal not appealable - double
5. Make a summary of all the issues involved and jeopardy
raised in your pleading
- An accused who has escaped or refuses to
6. Discuss all the issues in their logical sequence surrender (i.e jumps bail) cannot appeal - --act of
making reference to the testimonies of each refusal to submit to the jurisdiction is
witness and other evidence and exhibits inconsistent with prosecution of appeal
according to their markings
- w/n 5 days from appeal, Clerk of Court
7. The contents of the memorandum should transmits record - Court MAY require the parties
include: to submit Memoranda - Court decides the case
on the basis of the entire records
a. Statement of the case
2. Appeal in civil cases
b. Statement of the facts
- File a notice of appeal w/n the 15-day
c. Issues involved reglementary period
- Serve a copy to the adverse party
d. Arguments - Record is transmitted to the appellate court
e. Applicable legal provisions - Contents of notice of appeal:
- parties,
f. Applicable jurisprudence - judgment/order or part thereof
whether American or Philippine appealed from,
cases - court to which the appeal was taken
g. Conclusion - Notice of appeal on questions of law only is
considered a waiver of questions of fact
h. Prayer for relief - In special proceedings and multiple appeals,
record on appeal is required - so the period is
longer - 30 days--perfected upon approval of the
I. Appeals and Special Civil Actions court (w/n 10 days)
1. Modes of Appeal in criminal case - Habeas corpus cases - appeal period is 48 hrs.
from notice
-Rule 122, ROC and Sec 16-25, SC Interim rules
and guidelines 3. Certiorari, mandamus, prohibition
-ONLY FINAL ORDERS/JUDGMENTS ARE a. Certiorari

SUBJECT TO APPEAL and do not include Writ issued by the superior court and directed to
interlocutory orders a court, tribunal, board or officer of inferior
a. How appeal in a criminal case is taken jurisdiction and exercising judicial or quasi-
judicial functions that has acted without or in
- MTC/MCTC/MeTC -->RTC-->CA-->SC excess of its jurisdiction or with grave abuse of
- File a notice of appeal discretion and there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary
- Serve a copy to the adverse party prosecutor, or course of law, commanding the latter to certify
Sol. gen, or the accused and return to the former the record in the
particular case for review and rectification of its
- All other appeals shall be by petition for review
interlocutory order or judgment.
- When death penalty is imposed, automatic
- How: file a verified petition; allege facts with
review by SC
certainty, pray for annulment or modification of
(Throwback: Di ko sure but from Crimpro, the first judgment; attach a certified copy of the order or
appeal is always a matter of right. So you file a judgment sought to be nullified and other
notice of appeal. Notice lang kasi right mo yun. relevant documents
The subsequent appeals, discretion na ng Court,
- Where the proper remedy is appeal, the action
except of course kung death penalty. So you file a
for certiorari shall not be entertained
"petition for review")
- It is an extraordinary remedy and cannot be
b. When appeal shall be taken
invoked except on a clear showing of an
arbitrary and oppressive exercise of jurisdiction matters not within its cognizance, or exceeding
or a grave abuse thereof in a manner that is its jurisdiction in matters of which it has
whimsical, capricious and wanton, amounting to cognizance.
lack of jurisdiction.
- can be availed of only when there is no appeal,
- GENERAL RULE: Motion for Reconsideration nor any plain, speedy and adequate remedy in
first. If denied, then certiorari - EXCEPTIONS: the ordinary course of law
1. Where the order is a patent nullity as where - subject to the DOCTRINE OF EXHAUSTION OF
the court a quo had no jurisdiction at all ADMINISTRATIVE REMEDIES
2. Where the questions raised in the certiorari
J. Comments and Briefs
proceedings have been duly raised and passed
upon by the lower court, or are the same as those
1. COMMENTS
raised and passed upon in the lower court
Every now and then in the course of court
3. Where there is an urgent necessity for the proceedings, the court will issue an order to a
resolution of the question and any further delay party to submit his comment on a pending
would prejudice the interest of the Government incident, like for instance, on a motion to dismiss
or the petitioner for lack of jurisdiction or on a petition of the
accused person to avail of the provisions of the
4. Where under the circumstances a motion for probation law.
reconsideration would be useless The counsels mettle is tested on the strength of
5. Where the petitioner was deprived of due his argument in support of his comment and the
process and there is extreme urgency of relief validity and propriety of the grounds he has
advanced for the grant or denial of the petition.
6. Where in a criminal case, relief from an order Comments should be served to accuseds counsel
of arrest is urgent and the granting of such relief and should contain every and all applicable
by the trial court is improbable authorities in support of the grounds set forth
7. Where the proceedings in the lower court are therein.
a nullity for lack of due process Comment partakes of the nature of the partys
stand on the matter raised by the petition, the
8. Where the issue raised is one purely in law or strength or weakness of which may spell success
when public interest is involved or failure of his cause.
b. Mandamus
2. BRIEFS
It is a command issuing from a court of law of Not required to perfect an appeal. But where the
competent jurisdiction, in the name of the state law requires that a brief should be filed within a
or sovereign directed to some inferior court, reglementary period, although the same is not
tribunal or board, or to some corporation or mandatory to perfect an appeal, nevertheless,
persons, requiring the performance of a failure to submit the required briefs and/or
particular duty therein specified, which duty memorandum may cause disastrous to the
results from the official station of the party to defeating party.
whom the writ is directed, or from operation of
law. 3. JUDGMENT OR DECISION WRITING
- will not lie to compel the performance of a Last step that terminates the adjudication
contract process by a civil court.
- subject to the DOCTRINE OF EXHAUSTION OF Section 14, Article VIII provides No decision
ADMINISTRATIVE REMEDIES shall be rendered by any court without expressing
- will lie to compel the discharge of a therein clearly and distinctly the facts and the law
discretionary duty itself but not to control the on which it is based. No petition for review or
discretion to be exercised--> can require action motion for reconsideration of a decision of the
only but not specific action court shall be refused due course or denied
without starting the legal basis therefor.
c. Prohibition
A writ issued by a court of law intended to No particular form is required by the
prevent a tribunal possessing judicial or quasi- Constitution in decision making or writing,
judicial powers from exercising jurisdiction over
except, it must clearly state the law and the facts test concerning his competence and qualification
on which it is based. as trier of facts and sifter of evidence.
a. In implementing this Constitutional provision, Note: Barte reproduced here the substantial
Section 1, Rule 36 of the Rules of Court provides portions of the lecture of Justice Reynato Puno
A judgment or final order determining the merits delivered during one of the Seminar-Orientation
of the case shall be in writing personally and workshop conducted by the SC for the newly
directly prepared by the judge, stating clearly and appointed RTC-Judges, viz:
distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of When the Constitution speaks of facts it means
court. material facts or opposed to immaterial facts.
Consequently, it is not enough for a judge to recite
Oral open court decision prohibited the testimonies of witnesses. He must synthesize
The Constitution and the Rules of Court them.
definitely proscribes the rendition of a decision
orally in open court, much less a minute decision Guidelines:
that merely states the dispositive portion 1. Use words in their liberal sense
without findings of facts and the applicable law. Two common sources of imprecision in legal
writing:
Decisions must be in writing and must be made
with clarity and in well-reasoned presentation a. Personification the giving of human qualities to
that is understandable not only to the person abstractions or objects, for example, cold-
reading the decision, but most importantly to the blooded decision
parties litigants themselves.
b. Metononymy the substitution of an attributive
Decisions must state the following: or suggestive word for the identifying stage
a. nature of the case worker
b. issue or issues involved
c. findings of the fact In Legal Writing, these imprecision may
d. law applicable to the case introduce ambiguity.
e. Dispositive ruling see to it that this must
be declared in no vague terms the rights 2. Omit Archaic Legalisms
and obligations of the parties. Archaic Legalisms words and phrases, such as
If there is anything that ought to be clear in the a. Hereinafter

Decision, it must be the dispositive portion for it is b. Heretofore
the part that is expected Justice Puno c. Aforesaid
d. Forthwith
The General Rule is that, where there is a e. Herein
conflict between the dispositive part and the f. Hereby
opinion, the FORMER must prevail over the g. For purposes of
LATTER on the theory that the dispositive h. Notwithstanding anything to the contrary herein
portion is the final order while the opinion is so made
merely a statement ordering nothing. i. By these presents
j. Said
b. Doctrine on findings of facts
As to findings of fact, the trial Judge need only 3. Use the Same Words to Refer to the Same
make a brief, definite, and pertinent findings and Thing; Use different Words to Refer to
conclusions upon controverted matters. Different Things
Never attempt to improve style by introducing
The ultimate test as to the sufficiency of trial synonyms or other word variations that will
courts findings of facts is whether they are create confusion or ambiguity.
comprehensive enough and pertinent to the
issue raised to provide a basis for decision. 4. Use Simple, Familiar Words
When you have a choice between a short,
Decision writing is by far considered the apex of familiar word, such as call and a longer, more
legal writing and exposes the judge to the litmus elaborate word, such as communicate, choose
the shorter simple one. Simple words are
understood more quickly, they require less A plain style is usually the best style. If you wish
reading and thinking time. to use figurative language, do so where it will
not interfere with communication of substance.
Simpler Words Elaborate counterparts
After Subsequent to Clichs come readily to mind during writing.
Before Prior to Thus a standard part of your revision should be
Begin, Carry out Implement, Effectuate to remove them.
Happen Eventuate
Inform Apprise 10. Avoid Jargon From Other Fields
Make Render
Send Transmit 11. Lastly, let us watch out for redundancy in
Think Deem legal writing
Think, see, regard Envisage Examples:
5. Use Concrete Rather than Abstract Words Basic fundamental telling revelation
Concrete words such as split decision are Basic starting point terrible tragedy
easier to understand than abstractions such as False misrepresentation true facts
judicial dichotomy. Final result unexpected surprise
If and when unless and until
Some common abstractions are simple words Sufficient enough save and except
that can often be eliminated without loss of
meaning, for example: type, kind, manner, state, c. Consequences where there are no findings of
area, matter, factor, system and nature. facts
The decision will be considered as
Example: UNCONSTITUTIONAL.
The central thrust of plaintiffs legal position is
dependent on matters having to do with three d. Findings of Facts
decisions of the SC. We have two basic types of narration:
a. Reportorial Type easiest to handle,
Revised: nothing more than a report of what happened
Plaintiffs argument for summary judgment during the trial. Usually consists in a summation
depends on three SC decisions. of what the witnesses testified to.
6. Use Words that are Consistent in Tone b. Synthesis type the judge summarizes
All words have connotation (overtones of the factual theory of the plaintiff or prosecution,
meaning) as well as denotation (explicit as the case may be, and after that the version of
meaning). Since connotation contributes to tone, the defense. After summarizing both versions,
the word choices in a particular piece of legal the judge will state which version he takes as
writing should have compatible connotations. true and correct and then renders the
adjudication.
7. Avoid Equivocations
To protect ourselves or to reflect uncertainty, In addition, the Semi-reportorial type the Judge
use either equivocal or qualifying words that summarizes the version that he accepts, and then
undermines their meaning. reports on the version that he rejects.
Typical words and phrases used in this way are: There is a fourth type which is a sub-
it seems to indicate classification of the synthesized decision. In this
if practicable last type, the court just summarizes the version
it would seem that it accepts and adopts, without at all
it may well be narrating or explaining what the other version is.
it might be said that
e. Readymade decision set aside
8. Use unqualified Nouns, Adjectives and Verbs
Many writers add modifiers to intensify or f. Memorandum Decisions
buttress poorly chosen nouns, adjectives, and verbs. Sec. 40 of BP Blg. 29 reads: Every decision or
The right word ordinarily needs no bolstering. final resolution of a court in appealed cases shall
clearly and distinctly state the findings of fact
9. Use Few Literary Devices and the conclusions of law on which it is based
which may be contained in the decision or final
resolution itself, or adopted by reference from 1. The uncontroverted facts must be
those set forth in the decision, order or separated
resolution appealed from. 2. In interpreting the testimony of a
witness, his whole testimony must be
Thus, Memorandum Decision to be valid cannot considered, i.e. his direct cross
incorporate the findings of fact and the examination, redirect and recross.
conclusions of law of the lower court only by 3. Self-contradictions by a witness usually
remote reference, which is to say that the happen. In assessing self-contradictions,
challenged decision is not easily and the judge should determine whether
immediately available to the person reading the they are due to innocent mistakes or due
memorandum decision. to deliberate falsehood.
4. Contradictions between witnesses also
4. TECHNIQUE IN DECISION MAKING commonly occur, thus, the judge should
Fact finding technique: try to reconcile them.
5. Contradictions between testimony on
In deciding cases, the judge should not delude the witness stand and prior affidavits are
themselves in the thought that they are tasked to also common. If they are irreconcilable,
discover the ultimate truth. It is impossible and affidavits should normally prevail.
that should not be a thorn on your throat. 6. Testimony that is inherently improbable
must be rejected.
Always Remember. In civil cases, the court 7. Demeanor of witness is an important
decides in favor of the party who is able to factor to be considered in weighing his
establish his cause of action by mere testimony.
preponderance of evidence. In criminal cases, the
courts are directed to acquit the accused unless c. Gestures and Postures as Non-Verbal Clues
his guilt is shown beyond reasonable doubt. In addition to clothing and appearance, the
witness gestures and movements while
a. Factors to consider testifying are also important factors in the
Rule 33 tells us the factors to consider in courts appreciation of his credibility.
determining the burden of proof, which are as 1. The upper face (the reflexive area)
follows: It consists of the following:
1. All the facts and circumstances of the i. Forehead indicates nervousness when
case perspiring
2. The witnesses manner of testifying ii. Eyebrows express concern and worry
3. Their intelligence when moving downward
4. Their means and opportunity of knowing iii. Eyelids it disclose an alert mind when
the facts to which they are testifying wide open and reveal sarcastic attitude
5. The probability or improbability of their when winking
testimony iv. Nostril this quiver in anticipation,
6. Their interest or want of interest flares with eagerness, or widen in fear
7. Their personal credibility so far as the or anger.
same may legitimately appear upon the v. Lips located in the non-reflexive area,
trial; and or the lower face which conveys
8. The number of witnesses, though the softness and warmth when full, and
preponderance is not necessarily with strength when thin.
the greatest number
2. The chest
b. Weighing the evidence When this area is covered by the witness
Our rules on evidence do not assign specific arms folded across, such posture signals the
truth value to the different kinds of witness unwillingness to communicate;
admissible evidence. while an uncovered chest indicates
openness and readiness to communicate.
In law, we do not have a table of logarithm
for our different kinds of evidence but 3. The posture
through ages, the court developed This can also affect the witness credibility, if
techniques which can be availed of in he leans forward the examining counsel; this
weighing evidence, to wit: may indicate his willingness to tell what he
believes is the truth; or his eagerness to First step: state the purpose of the offer,
testify, for party calling him as witness, to the purpose for which the evidence is
matters that may be truthful. On the other presented. Next, the same purpose must
hand, if he leans backwards, this may signal be restated during the stage of formal
his hesitance in giving testimony either offer of evidence.
because what he is declaring is a fabrication The Constitution and RoC, make it
or because he simply does not believe in the mandatory for the judge to dispose of
cause of the party calling him. the case which is deemed submitted for
decision, not exceeding the period of 90
4. The legs movement days counted from the date the parties
Constant movement legs indicate tenseness. are notified in open court that the case is
Crossed legs reflect confidence and deemed submitted for decision.
openness to communicate. Foot scuffing We are often deluded into believing that
however, is indicative of insecurity and court litigations are won or lost by an
nervousness. effective cross-examination. However, in
reality especially in the Philippines, a
d. Techniques in Interpreting the Law case is won or lost depending on how
In most cases, the law is clear and there well or badly you conduct the direct
ought to be no problem in its application to examination.
the facts of a given case. In some instances, Much of the success in conducting an
however, there will be a need to interpret effective direct examination depends
the law. This is where you separate the upon your skill in interviewing first your
skilled from the unskilled judges. client and clients witnesses.
The various techniques on how to interpret 1. INTERVIEW OF CLIENT AND WITNESSES

a statute, even a constitution, are well (Guidelines according to Atty. Diokno)
discussed by books on statutory Do not commit the mistake of
construction. These techniques are universal interviewing a client only a week before
in character. trial.
It is wrong for us to look at a problem
CHAPTER 4: solely from clients point of view. After
PRACTICE COURT REVISITED placing yourself in the clients shoes, you
(PRACTICUM) must get out and look at it from the way a
judge might look at it.
A. BASIC ROLE OF A TRIAL LAWYER Approach adverse witnesses as early as
Basic Function of a lawyer: to see to it possible or witnesses who tell you that
that he wins his case, not by fair or foul they dont know anything.
means, but to convince the judge of the Get the statements preferably in writing
validity of clients cause of action, that but if not, you can always use a tape
client is right and that he deserves the recorder in the course of your interview.
favorable judgment and reliefs praying One of the oldest techniques there are for
the court to grant. establishing the authenticity and
First task as a trial lawyer: present all voluntariness of a statement, is to prepare
the evidence that is necessary a statement and make deliberate
A trial lawyer must know when to mistakes, so that he cannot later claim
present particular evidence, how to that he did not read the statement.
conduct, how to ask questions, the right Use the same questions, same words,
timing and the right order. All of these same order of questioning as you will on
are Direct Examination. direct examination in court. Surprise your
Cross Examination: The usual method adversarys witness but not your own.
of exposing the weakness of opponents
case. 2. CARDINAL RULES ON DIRECT
B. OFFER OF EVIDENCE-OR EXAMINATION
PRESENTATION OF EVIDENCE Make your questions brief, simple, follow
The offer of evidence starts with direct the same order that you prepared and
examination of a witness, otherwise when it comes to identifying documents,
called examination in chief. do it in the most natural way.
Dont make a big production out of our Acts of Lasciviousness or Attempted Rape
exhibits unless they are really vital to Unjust Vexation
exhibits. Try to present them just as part The plea-bargaining process starts with an
of the story so that your witness will feel overture of negotiation and hard bargaining in a
at ease. person to person basis made by the parties thru
Express yourself clearly, briefly and their counsels highlighted by making proposals
cogently. and counter-proposals.
C. GRASSROOTS PLEA-BARGAINING 3. CONSENT OF FISCAL AND OFFENDED

In both criminal and civil cases, the use of PARTY REQUIRED IN PLEA OF GUILTY TO
effective negotiation techniques as a LESSER OFFENSE
useful instrument in litigation, is still the The opportune time considered most
name of the game without which a ideal to start the plea-bargaining
compromise agreement or plea- negotiation, is during the wide gap
bargaining is difficult to achieve. between the receipt of notice of the
In any event success or failure in plea- arraignment from the court and the date
bargaining still depends largely on of arraignment.
lawyers ability to put his idea across the In pleas of guilty to a lesser offense, the
bargaining table, the use of his hunches, consent of both the public prosecutor and
his inborn talent, his skill, patience and the offended party is required.
above all his power of persuasion and
determination in getting what he wants. WHEN CONSENT OF THE FISCAL NOT
Extra-legal but not illegal or immoral REQUIRED
weapons and a lot of public relations are WHEN TO INVOKE PLEA OF INCOMPLETE
also indispensable. SELF-DEFENSE
1. SPECIFIC CASES Where the accused had decided to plead
Some of these charges which may be the subject guilty to the crime as charged in the
of plea-bargaining the beneficial results of which Information or Complaint, the prior
are attained by pleading guilty to a lesser consent of the Fiscal and the offended
offense: party is not required.
Murder to Homicide No particular form of agreement is
Frustrated Murder to Attempted Murder prescribed to prove that a meeting of the
or Attempted Homicide or Serious minds had been reached in order to
Physical Injuries (SPI) enforce the plea-bargaining agreement.
Frustrated Homicide to Attempted Before the accused is allowed to enter a
Homicide or Serious or Less SPI plea of guilty to a lesser offense, this must
SPI to Less SPI be preceded by a formal motion from
Less SPI to Slight Physical Injuries accuseds counsel withdrawing his former
Robbery with Violence or Intimidation or plea. Thereafter, the accused shall be
Force Upon Things to Simple Theft rearranged.
Violation of PD 532 to Simple Theft
Qualified Trespass to Dwelling to Simple 4. WHEN TO INVOKE PLEA OF INCOMPLETE
Trespass SELF-DEFENSE
Rape to Acts of Lasciviousness At least two elements of Self-Defense must be
Qualified Seduction to Simple Seduction proved:
a. unlawful aggression did not come
Attempted Homicide to Direct Assault
from the accused
Direct Assault to Simple Resistance or
b. that he is not guilty of sufficient
Disobedience to Person in Authority or
provocation
his Agent
c. that there is reasonable necessity
Death Resulting from Tumultuous Affray
of the means employed to repel or
to Serious or Less Serious Physical
prevent the aggression
Injuries
Robbery to Grave Coercion
CHAPTER 5:
Forcible Abduction to Consented
Abduction BASIC TECHNIQUES IN BRIEF WRITING
Grave Oral Defamation to Light Oral
Defamation
BRIEF is a written document, a GR: Only issues or matters that have been raised
condensed statement or epitome of some in the court below involving questions of fact or
larger document, or of a series of papers, law, or mixed questions of fact and law, or purely
facts and circumstances or propositions. questions of law only, resecting appeals from
It is a written statement prepared by the judgments, final orders or resolutions of quasi-
counsel arguing a cases in court; contains judicial bodies or agencies can be raised on
a summary of the facts of the case, the appeal, regardless of whether or not the
pertinent laws, and the argument of how appellant has filed a motion for new trial or
the law applies to the facts supporting reconsideration.
counsels position. Reason: It would be offensive to the basic rules
Contents: SSSAC of fair and justice to allow appellant to raise
Statement of issues presented for those questions for the first time on appeal but
review which have not been passed upon by the trial
Statement of the case court.
Statement of facts Principal rationale: Judicial economy
An argument [with authorities] (1) If the losing side can obtain an appellate
A conclusion stating the precise reversal because of error not objected to,
relief sought the parties and public are put to the
expense of retrial that could have been
FUNCTION OF BRIEFS avoided had an objection been made;
To articulate the pleaders cause and call (2) If an issue had been raised in the trial
the attention of the appellate court court, it could have been resolved there,
regarding the merits of a litigation, the and the parties and public would be
issue involved, and the grounds why the spared the expense of an appeal.
case should be adjudicated in favor of
appellant or appellee. A BRIEF MUST BE CONCISE
To educate the opposing part/counsel Make the brief as concise as possible
with a view of pressuring him to accept without sacrificing the clarity and quality.
the unassailability of the grounds relied Brevity should not be equated with the
upon and the extents of oral arguments number of pages in the brief.
necessary to aid the appellate court in a Brevity should be a flexible standard of
just adjudication of the controversy. conciseness in relation to the complexity
To help the appellate court lessen the of the case.
burden in the examination of the records Does not necessarily means containing
and expedite the speedy disposition of the few short sentences or paragraphs, for
case. everything germane should be included.
To enable the reviewing court to have a Brevity does not mean filing a sloppy
quick grasp of the rights of the parties appeal.
and in tipping the scales of justice to the People vs. Lucero The court castigate
one in whose favor the law leans. the Solicitor General for lack of even the
Note: Every argument must be supported by a basic requirement of subject index, nor it
citation of appropriate authorities. The weight of does not tolerate the carelessness and
the authorities cited for an effective brief, is not haphazard preparation of a kind of brief
determined by quantity but the quality of the containing arguments with fractured
citations. syntax.
WHAT MATTERS SHOULD BE RAISED ON SUMMATION OF ESSENTIAL ELEMENTS OF A

APPEAL? STANDARD APPEAL BRIEF
Section 15. Questions that may be raised on (1) Subject index

appeal. Whether or not the appellant has filed a Should contain a digest of the
motion for new trial in the court below, he may Statement of the Case describing
include in his assignment of errors any question very briefly and clearly appellants
of law or fact that has been raised in the court cause of action, and the reliefs
below and which is within the issues framed by sought for, a brief Statement of
the parties. (Rule 44) Facts, and each and every
argument with appropriate Appellees brief shall contain a
proper references, Counterstatement of Facts intended to
Should contain the arguments by belie or straighten the inaccuracies,
assignment of errors, specifically inefficiencies, mistake, whatever
pointing to the findings and innocuous or intentional distortions on
conclusions of the lower court that misstatement of facts, found in appellants
are erroneous, and contrary to the brief that are contrary to or at variance
law or evidence. with the record.
Should also contain a table of
cases, textbooks and statutes ARGUMENT
relied upon as reference in Appellants brief shall contain
support of the arguments and Assignment of Errors in their
findings contrary to those of the chronological order, which while assailing
lower court. and taking exceptions of the trial courts
With respect to appellees brief, finding and conclusions, ought to observe
should contain digest of the ethical standards of decency and morality
arguments and page references, in his criticism of the lower courts
textbooks and statutes cited with decision.
reference to the page where they There should be courtesy and temperate
were cited. Under the heading, language and style should be the
Counterstatement of the Case overriding factors. Never allow
and Counterstatement of Facts, scandalous matters to creep into the
the appellee shall point out such pages of the brief.
inaccuracies and inefficiencies Appellees brief shall articulate his
that are found in the appellants arguments in refutation of each
statement of facts. assignment of error discussed in
appellants brief, and the reason why the
STATEMENT OF FACTS judgment or final order appealed from
Shall recite in a narrative form the nature should be affirmed. The most effective
of the action. refutation is selective reproduction and
The narrative shall include all incidents quotation of trial courts findings and
that transpired in the court below, the conclusions supported by the
facts and circumstances constituting the uncontroverted evidence or record and
pleaders cause of action, or the rights of even by the admission of the appellant.
the appellant that were violated that led
to the filing of the case in the court below, REFRAIN FROM USING DISREPECTFUL
a restatement by reference in the record LANGUAGE
of the appealed rulings and orders of the The use of intemperate, disrespectful and
court of origin, the nature of the judgment excessive language in briefs is proscribed
appealed from in favor of the appellee. of every writer.
Appellees counterstatement of the case It is unbecoming and unfortunate of a
shall state appellees own version of facts lawyer who is supposed to be schooled in
and circumstances that are contrary to or sobriety and sound reasoning, to allow
different from the Appellants brief, the himself to be carried by personal
allegations in the pleadings and such prejudices and emotionalism. A court
other documentary evidence in support of battle should not reduce lawyers into
appellees cause, without sacrificing small children quarreling over a toy in the
honesty and accuracy. streets.
STATEMENT OF FACTS CITATION OF AUTHORITIES

Appellants brief - Shall contain an Before citing a case as authority for a
abbreviated version of the ultimate facts certain proposition, it should be checked
and events in such a way that the or counterchecked whether it has not
appellate court will be made to feel that, been overruled by recent case or
by deciding in favor of the brief writers doctrines, or it must be distinguished
client, justice will be done. from the one relied upon by the adverse
Honesty and candor ultimate criterion party.
In the absence of any domestic SC decisions are final and form part of the law of
jurisprudence to be cited as authority in the land.
the appealed case, resort may be made to A. SUPREME COURT
foreign authorities. However, this has Sec. 5(1), Art. VIII 1987 Consti. SC is
merely persuasive effect and cannot be the last arbiter of all questions of law
considered doctrine in this jurisdiction
Chief Justice and 14 Associate Justices
under the principle of stare decisis.
Our judicial system recognizes the En banc, divisions of 3, 5, or 7
principle of stare decisis or adherence to Decision:
precedents and not to unsettle things o Must be made by majority of
which are settled. members who actually took
Doctrine of stare decisis when a point of part in the deliberations.
law has been settled by a decision, it o Must be with concurrence of at
forms precedent which is not afterwards
least 3 of such members
to be departed from, and, while it should
ordinarily be strictly adhered to, there are o If not obtained, it shall be
occasions where departure is rendered decided en banc
necessary to vindicate plain, obvious o Decision shall be reached in
principles of law and remedy continued consultation before writing of
injustice. opinion by ponente.
Certification of this effect
RELIEF
signed by Chief Justice shall be
Under the heading Relief appellants
brief should contain a prayer specifying issued and attached to the
the reliefs, judgments or awards that the records of the case and served
appellant or appellee seeks the court to upon the parties.
render. o Any member who took no part,
A prayer for relief is the lifeblood of every or dissented, or abstained from
brief or pleading, because although it is a decision or resolution must
not considered part of the cause of action,
state the reasons thereof. (Sec.
nevertheless it is part of the complaint,
and such the pleader is entitled to as 13, Art. VIII Consti)
much relief as the facts alleged No law increasing the appellate
constituting the cause of action may jurisdiction of the SC can be passed
warrant. without its advice and consent.
It is therefore the duty of the brief-writer
to make the prayer for relief correspond B. COURT OF APPEALS
to the allegations constituting the cause of
Statutory court created by
action, and to avoid any variance of the
relief prayed for from the allegations in statute (EO 33 July 28, 1986)
the pleading, for it is from prayer for Presiding Justice and 68 Associate
relief that the court should necessarily Justices thru 23 divisions of 3
base the awards in the dispositive portion members each.
of the its decision. Sits en banc if exercising
administrative, ceremonial or
CHAPTER 6: other non-adjucatory functions
Hierarchy in Philippine Courts Same qualifications with SC
Justices
Philippine Judicial System hierarchal QUORUM:
organization of courts of justice A. En banc majority of members
Basis: to constitute quorum
1. Article VIII of 1987 Constitution B. Division three members to
2. Judiciary Act of 1948, superseded by BP constitute quorum
129 (Judiciary Organization Act of 1980) Unanimous vote of the 3 members
of a division to pronounce final
resolution (must be in consultation Has original and appellate
before writing) jurisdiction. (see book p. 231 to
If no unanimous vote Raffle 233)
Committee of the Court to
designate 2 additional members E. METROPOLITAN TRIAL COURTS,
forming a special division of 5. The MUNICIPAL TRIAL COURTS AND
decision of majority of such will MUNICIPAL CIRCUIT TRIAL COURTS
pronounce the final resolution. Same procedures as RTC except:
Trials or hearings in CA must be a. Where a particular provision
continuous and completed within expressly or impliedly applies
3 months unless extended by Chief only to either of said courts
Justice of SC. b. In civil cases governed by
Summary Procedure
C. SANDIGANBAYAN Exercises exclusive original over
Created by PD1606 (Dec. 10, Civil actions and Criminal actions
1978) as special court (see pp. 234 235)
To try and decide criminal and
civil cases involving graft and F. FAMILY COURTS
corrupt practices by public Created by RA 8369 (Family
officials and employees. Courts Act of 1997)
RA 7975 amended PD 1606 There shall be a family court for
classifying Sandiganbayan as a every city and province in the Phil.
regular court. If the city is the capital of the
Divisions of 3 Justices each province, it shall be established in
Decisions and final orders here are the municipality which has the
appealable to SC by petition for highest population. (sec. 3 RA
review on certiorari for pure 8369)
questions of law in accordance Qualifications: same as RTC Judges
with Rule 45.
If penalty imposed here is G. SHARIA COURTS
reclusion perpetua or life Code of Muslim Personal Laws of
imprisonment, or death appealable the Philippines (PD 1083)
to SC by notice of appeal Two categories:
If death automatic review by SC a. Shari a district courts
(equivalent to RTC)
D. REGIONAL TRIAL COURTS b. Shari a Circuit Courts
Each branch within the region, is (equivalent to MTCs)
presided by a single judge
Multiple Sala Court there is an H. COURT OF TAX APPEALS
Executive Judge to discharge Created by RA 1125
administrative functions over all A court of special appellate
the branches and the MTCs sitting jurisdiction
within the territorial area for 2 Presiding Judge and 2 Associate
yrs., unless reappointed. Justices
Single Sala Courts Presiding Qualifications same as CIR or SC
Judge acts as Executive Judge Exclusive appellate jurisdiction to
exercising administrative review on appeal:
functions over the MTCs sitting a. Decisions of CIR and others
within the territorial jurisdiction under NIRC
of the area.
b. Decisions of Commissioner of o the civil status of persons;
Customs o the validity of a marriage;
o any ground for legal separation;
Alternative Dispute Resolution System o the jurisdiction of courts;
o future legitime;
Means any process or procedure used to o criminal liability;
resolve a dispute or controversy, other o those which by law cannot be
than by adjudication of a presiding judge compromised
of a court or an officer of a government
agency in which a neutral third party ALTERNATIVE DISPUTE RESOLUTION
participates to assist in the resolution of Arbitration
issues, which includes arbitration, Mediation
mediation, conciliation, early neutral Conciliation
evaluation, mini-trial, or any combination Early Neutral Evaluation
thereof. Mini-trial
And any combination
Arbitration
means a voluntary dispute resolution Forms:
process in which one or more arbitrators, 1. Compulsory Arbitration- enforced through
appointed in accordance with the statutory provision such as in labor-related cases;
agreement of the parties, or rules 2. Voluntary Arbitration proceeds from the
promulgated pursuant to this Act, resolve mutual consent of both parties usually in
a dispute by rendering an award
pursuance to an agreement prepared beforehand.
Where such arbitration is voluntary, the disputing
Mediation
parties are the ones who select the arbitrator or
Means a voluntary process in which a
members of the arbitration panel that has the
mediator, selected by the disputing
parties, facilitates communication and power to render a binding decision.
negotiation, and assist the parties in
reaching a voluntary agreement HOW IT WORKS
regarding a dispute. 1) APPLICABLE LAW- Look for applicable law that
governs the current subject of dispute/arbitration:
Mini-Trial
means a structured dispute resolution > International Commercial Arbitration
method in which the merits of a case are Model Law (Sec. 19)
argued before a panel comprising senior >Domestic arbitration and civil
decision makers with or without the controversies RA 876 Arbitration Law
presence of a neutral third person after > Commercial Arbitration Civil Code and
which the parties seek a negotiated other pertinent laws (Sec. 21)
settlement; > Civil and criminal matters in barangay
level Katarungang Pambarangay (LGC of
Early Neutral Evaluation 1991)
means an ADR process wherein parties > Labor & construction disputes Labor
and their lawyers are brought together Code and Executive Order 1008
early in a pre-trial phase to present >Agreed contract between the parties
summaries of their 2cases and receive a arbitration agreement or provision
nonbinding assessment by an pertaining to arbitration must be stipulated
experienced, neutral person, with in or part of the contract.
expertise in the subject in the substance
of the dispute;
Note: The laws applicable shall govern the
settlement/resolution of the dispute.
Exception to the Application of this Act:
o labor disputes covered by Presidential 2) THE CONTRACT- Generally, there are two ways
Decree No. 442, otherwise known as of entering into arbitration: a) arbitration clause-
the Labor Code of the Philippines, as provides for the arbitration of future disputes; b)
amended and its Implementing Rules submission agreement- provides for the arbitration
and Regulations; of present disputes.
2) Defendant offers rebuttal evidence
3) PLACE OF ARBITRATION [Sec. 30] 3) Plaintiff presents evidence to counter
defendants defenses
> This depends on the terms agreed upon by the
parties. Closing arguments
> Failing in such agreement, the default place shall 1) Defendant presents his closing argument
be in Metro Manila. 2) Plaintiff gives his closing argument
> Unless, considering the circumstances of the 3) Defendant proceeds with his final argument
case, convenience of the parties and appropriate
for consultation of the tribunal members, hearing C. FINAL OR POST ARBITRATION MATTERS
and inspection of goods, property or documents, 1) Setting of due date for post-arbitration briefs (if
the arbitral tribunal shall decide on the place of necessary)
arbitration. 2) Arrangements made for site inspections or
visitations (if required)
Notes: 3) Announcement of due date for the release of
>The arbitration should be held in a place or setting the award
which provides privacy and confidentiality. [Sec. 4) Completion of hearing record
23]
> The arbitration may also be held in a private WHEN MAY JUDICIAL INTERVENTION BE
office of an accredited ADR provider, if the parties APPLICABLE
chose one. [Sec. 3(b)] 1) if the other party needs to be compelled to
arbitrate the dispute as provided by the
4) PARTIES IN ARBITRATION agreement; [Sec. 4, Arbitration Law]
In general: 2) if there is a deadlock on the choice of
1) The parties in dispute; and arbitrators; [Sec. 8, Arbitration Law]
2) arbitrators/ panel of arbitrators. [Sec. 3(d)] 3) if one party wishes to vacate the arbitration
award; [Sec. 41, ADR]
But depending of the kind of subject of dispute, 4) if one party opts to confirm, modify or correct
these persons may be involved: the arbitration award; [Sec. 23, Arbitration Law]
5) if one party needs to enforce the arbitration
1) Persons who are duly authorized in writing by award; [Sec. 27, Arbitration Law]
the parties involved (i.e. secretary, agent, 6) if one party needs to challenge the appointed
authorized representative etc.); arbitrators or seek disqualification;[Sec. 11,
2) lawyers of the parties; Arbitration Law]
3) Persons having direct interest in the case. [Sec. 7) if one party intend to control discovery
12, Arbitration Law] proceedings; and
8)if one party decides to have questions of law of
CUSTOMARY PROCEDURE IN ARBITRATION (for the conduct of arbitrators reviewed.
details and technicalities see Arbitration Law):
A. PREPARATORY MATTERS STAGES IN ARBITRATION
1) Selection of the arbitration panel and its
chairman
2) Submission of briefs and other pleadings Agreement
3) Announcement of ground rules
4) Statement of issues by arbitrators
5) Opening of arbitration hearing Discovery
B. ARBITRATION HEARING PROPER Selection of

Arbitrator Court
Opening Statements
1) Plaintiffs Opening Statement Hearing
2) Defendants Opening Statement
Evidence Presentation Award

1) Plaintiff proceeds with his case
MEDIATION: OR OTHER AUTHORITY to make a ruling on the
Scope of Mediation [Sec. 7]: dispute subject to mediation.
>voluntary mediation (whether ad hoc or
institutional) EXCEPT when it is terminated or settlement was
>conciliation reached or is permitted to be disclosed according
to Sec. 13 of ADR.
Note: Mediation is popular in labor and
construction cases, but it can be used in civil and 4) Lawyers may participate to provide assistance
commercial cases as well. in the mediation. [Sec. 14]
FOUR PHASES: 5) Parties must be ready of possible proposals and

1) Setting the ground rules for the guidance of alternatives to settle the case.
participants 6) Decide on what the sequence of the mediation
2) Employment of data-gathering methods by the should be. There is no rule with regard to this. This
mediator to fully understand the root of conflict is subject to the decision of both parties. The strict
[Sec. 13] rules of court and evidence are usually not
observed in mediation. Sequence may be of 2
Note: In this phase, 2 things are done: a) issues are stages:
defined; and b) an agenda is drawn between the
mediator and parties involved. Initial Stage- JOINT MEETING by the
disputing parties with the mediator
3) Alternative solutions are identified and reviewed Second Stage- SEPARATE MEETING/PRIVATE
for purposes of settlement SESSION of each disputing party with the mediator
4) Resolution or an agreement to settle the dispute
is reached and implementation is commenced. However, the sequence may vary. Parties are free
to agree if they wish to have mediation in one
Note: The parties agreeing to the settlement may seating or series of mediation sessions until parties
put it into writing to have a binding effect. settle or walk away.
STEPS TO FOLLOW IN MEDIATION The place of mediation is also decided by the

1) The parties must agree to mediate. Mediation is parties. And if no such agreement is present, any
applicable when there is a situation in which no place convenient and appropriate to the parties
progress in any kind of communication (impasse) will suffice. [Sec. 15]
between conflicting parties. If the opposing party is
too difficult to convince to mediate, the other party Note: Proceedings or the mediation sessions are
may go to an ADR provider to inform him of the confidential. [Sec. 9] However, this may be waived.
benefits of the mediation and persuade him to [Sec. 10]
mediate.
7) Parties must enter into a fair compromise. A
2) The parties must choose a mediator. [Sec. 3 (q)] compromise obtained by the parties is considered
The law however does not impose special a contract between the parties and is enforceable
qualifications of a mediator. [Sec. 13 b3] As long as as such. The compromise agreement is legally
the parties trust him and has chosen him as binding on the parties with the force of res judicata
qualified to mediate the dispute, it is already and bars re-litigitation of the same cause in
enough. another action. [See sec. 17]
3) Position papers must be prepared by the ARBITRATION VS. MEDIATION

parties. Opposing parties must get copies of the
papers coming from both sides. ARBITRATION MEDIATION
A microcosm of a court More like negotiation
But the mediator must: trial and bargaining
>NOT make a report, assessment, evaluation, A little structured and Does not have a built-in
recommendation, finding or other communication formal out of court due process like that in
regarding the mediation TO A COURT OR AGENCY settlement (thus arbitration.
favored by law than
mediation)
Once parties agree to Even if parties agree to MEDIATION CONCILIATION
arbitrate, parties are mediate, parties are not Mediator deals with Conciliator does NOT
bound by such bound, thus may walk the parties at the same DEAL with the parties at
agreement. away if one does not time the time
like what is happening Mediator meets Conciliator meets parties
Arbitrator sits as a trier Mediator assists in the together with the separately
of facts negotiation; attempts to parties and separately
reconcile; educate the Parties must present None required unless
parties of a more evidence/ proof,
conciliator requests for
realistic perspective that documents and
it. (still subject to
may lead to compromise position papers decision WON party will
Arbitrator has the Mediator does not have allow that)
power to render and the power to render and Note: The main difference of conciliation to
impose decision or impose decision or mediation is the 3rd partys manner of
award on parties and award for the parties; participation.
may even subpoena no power to induce
witnesses to give proper settlements; merely EARLY NEUTRAL EVALUATION is an alternative
judgment attempts to reconcile dispute resolution process wherein parties and
contradictions and their lawyers are brought together early in a pre-
diverse positions of the trial phase to present summaries of their cases and
parties receive a non-binding assessment by an
A party may be Generally, you cannot experienced, neutral person, with expertise in the
compelled to arbitrate compel the opposing subject in the substance of the dispute. [Sec. 3 (n)]
as provided by the party to participate in
agreement mediation - is a non-binding process in which a neutral
Requires arbitration Position papers third party (facilitator) manages the
briefs, pleadings discussing significant discussion between parties that are
necessary etc. In short, facts and supporting attempting to reconcile divergent views and
more paper work documents are reach agreement on issues or tasks.
sufficient. Facilitation is used in a wide variety of
Confidential information Confidential information settings including management meetings
is subject to discovery; is NOT subject to and public consultations.
admissible in adversarial discovery; inadmissible
proceeding in an adversarial MINI-TRIAL:
proceeding Note: This method is a more sophisticated form of
mediation.
CONCILIATION the adjustment and settlement of
the dispute in a friendly and unantagonistic HOW IT WORKS
manner. 1) Parties become signatories to a mini-trial
- is a dispute settlement procedure which contract that specifies the conduct of hearings, the
uses a neutral third party to clarify issues in selection of a neutral 3rd party and some discovery
a dispute so that parties concerned may matters.
themselves arrive at a mutually acceptable 2) After all the preliminaries are done, hearings are
agreement. conducted.
a) The presiding judge will give each party
Parties in Conciliation: a brief presentation of its position
1) Opposing parties b) After the parties complete their case
2) Neutral 3rd party known as conciliator presentations, the representatives of the parties
will then meet to discuss settlement prospects with
Note: since RA 9285 Sec. 7 includes conciliation the mini-trial 3rd party acting as mediator who may
under mediation, processes adopted for mediation be free to give advisory opinions if the parties
is made applicable to conciliation. accede.
MEDIATION VS. CONCILIATION
Note: Usually used to resolve complex commercial
disputes. But not limited to that.
MEDIATION-ARBITRATION a two step dispute

resolution process involving both mediation and
arbitration. [Sec. 3 (t)]
Note: Mediation-Arbitration (Med/Arb) is a

combination of mediation and arbitration that
gives the parties an opportunity to resolve minor
issues through mediation first. If all issues are not
settled during the mediation stage, the parties can
proceed to arbitration to tackle the remaining
issues assuming the process goes that far.
PHASES OF MED/ARB:
FIRST PHASE - Neutral Party assists the parties
forge a compromise agreement.
SECOND PHASE- If after the first phase, agreement
was not reached, arbitration commences and the
arbitrator may now render a binding award
pursuant to the agreement of the parties.
Note: Once mediation fails to resolve the conflict,

the parties then decide if they wish to proceed to
arbitration. If the party does not express any
interest in going further, the dispute is unsettled
and the parties may choose other options including
litigation.
Note: Sec. 20 of Arbitration Law DOES NOT ALLOW

an arbitrator to act as a mediator in any proceeding
in which he is acting as arbitrator; and all
negotiations toward settlement of the dispute
must take place without the presence of the
arbitrator. Thus, with the strict interpretation of
the law, the parties who wish to enter into
Med/Arb must have a prior agreement that once
the mediation fails, another person is to be
appointed as an arbitrator to reach settlement to
avoid any future legal challenges.

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Legal Counseling Revised

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Legal Counseling By: Recaredo P.

e. Impelling force exerted by The judge is likened to a conductor in a

2. Presiding judge as effective negotiator 5. Preliminary Conference pursuant to

d. Ask parties to agree on the specific trial Pre-Trial elements:

8. Exceptions to self-incriminating questions G. PROVISIONAL REMEDIES (SRRRAP)

-ONLY FINAL ORDERS/JUDGMENTS ARE a. Certiorari

If there is anything that ought to be clear in the a. Hereinafter

The various techniques on how to interpret 1. INTERVIEW OF CLIENT AND WITNESSES

C. GRASSROOTS PLEA-BARGAINING 3. CONSENT OF FISCAL AND OFFENDED

WHAT MATTERS SHOULD BE RAISED ON SUMMATION OF ESSENTIAL ELEMENTS OF A

Section 15. Questions that may be raised on (1) Subject index

STATEMENT OF FACTS CITATION OF AUTHORITIES

B. ARBITRATION HEARING PROPER Selection of

Evidence Presentation Award

FOUR PHASES: 5) Parties must be ready of possible proposals and

STEPS TO FOLLOW IN MEDIATION The place of mediation is also decided by the

3) Position papers must be prepared by the ARBITRATION VS. MEDIATION

MEDIATION VS. CONCILIATION

MEDIATION-ARBITRATION a two step dispute

Note: Mediation-Arbitration (Med/Arb) is a

Note: Once mediation fails to resolve the conflict,

Note: Sec. 20 of Arbitration Law DOES NOT ALLOW

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