J. PRE-TRIAL Flashcards
Concept of pre-trial
Pre-trial is a procedural device by which the court is called upon, after the filing of the last pleading, to compel the parties and their lawyers to appear before it, and negotiate an amicable settlement or otherwise make a formal settlement and embody in a single document the issues of fact and law involved in the action, and such other matters as may aid in the prompt disposition in the action
Nature and purpose
Pre-trial is mandatory and should be terminated promptly. [Sec. 2, Rule 18]
Failure without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution
Failure without just cause to bring the evidence required shall be deemed a waiver of the presentation of such evidence. [Sec. 2, Rule 18]
Notice of pre-trial
After the last responsive pleading has been served and filed, the branch clerk of court shall issue a notice of pre-trial within 5 calendar days from filing. [Sec. 1, Rule 18]
The notice of pre-trial shall set pre-trial to be conducted not later than 60 calendar days from the filing of the last responsive pleading. [Sec. 1, Rule 18]
Service of Notice of Pre-Trial
The notice of pre-trial shall be served on counsel, or on the party if he or she has no counsel [Sec. 3, Rule 18]
Appearance of parties, effect of failure to appear
It shall be the duty of the parties and their counsel to appear at:
a. Pre-trial,
b. Court-annexed mediation, and
c. Judicial dispute resolution, if necessary. [Sec. 4, Rule 18]
Note: Both parties and their counsel are required to attend. Appearance of either only the party or his counsel counts as non-appearance, unless:
Excused non-appearance
Appearance of a party and counsel may only be excused for:
a. Acts of god,
b. Force majeure, or
c. Duly substantiated physical inability. [Sec. 4, Rule 18]
Appearance by Representative
A representative may appear on behalf of a party, but must be fully authorized in writing to:
a. Enter into an amicable settlement,
b. To submit to alternative modes of dispute resolution, and
c. To enter into stipulations or admissions of facts and documents. [Sec. 4, Rule 18]
Note: It is not sufficient for the representative to be given the power to enter into one or two of the matters enumerated. An incomplete authority does not satisfy the requirement of the Rules and should be deemed the equivalent of having no authority at all. [1 Riano 429, 2016 Bantam Ed.]
Moreover, only the authorization is required in order for a representative to appear on behalf of a party. A ground for excused non-appearance need not concur with the written authorization in order to allow a representative to appear on behalf of the party.
The written authorization must be in the form of a special power of attorney as authority to enter into amicable settlement must be in such form [Sec. 23, Rule 138; Art. 1878(3), Civil Code]
Pre-trial brief, effect of failure to appear
[Pre-Trial Brief; Effect of Failure to File]
When to file and serve pre-trial brief
The parties shall file with the court and serve on the adverse party to ensure receipt at least 3 calendar days before the date of pre-trial their pre-trial briefs. [Sec. 6, Rule 18]
Legal effect of representations and statements in the pre-trial brief
The parties are bound by the representations and statements in their respective pre-trial briefs. [A.M. 03-1-09-SC (2004)]
Note: Representations and statements in the pre-trial briefs are in the nature of judicial admissions [Sec. 4, Rule 129]
Effect of failure to file:
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. [Sec. 6, Rule 18] Therefore, the following sanctions are meted out to those failing to file their respective pre-trial briefs
[Effect of failure to appear]
Note: The party and counsel must have been duly notified and their failure to appear was without valid cause. It is only then that the following effects occur upon non-appearance of both party and counsel:
i. By the plaintiff and counsel
The action shall be dismissed with prejudice, unless otherwise ordered by the court. [Sec. 5, Rule 18]
Remedy: Motion for reconsideration, then appeal
Note: This would be the proper remedy because dismissal with prejudice amounts to an adjudication on the merits and is thus, final. [1 Riano 426, 2016 Bantam Ed.]
ii. By the defendant and counsel
The plaintiff shall be allowed to present evidence ex parte within 10 calendar days from termination of pre-trial, and judgment shall be rendered based on the evidence offered. [Sec. 5, Rule 18]
Remedy: Motion for reconsideration, and if the denial is tainted with grave abuse of discretion, a petition for certiorari
Note: This is because the order of the court allowing the plaintiff to present evidence ex parte does not dispose of the case with finality and the order is, therefore, interlocutory and not appealable. [1 Riano 428, 2016 Bantam Ed. citing Sec. 1(b), Rule 41]
The non-appearance of the defendant in pre-trial is not a ground to declare him in default. While the effect of the failure of the defendant to appear at the pre-trial is similar to that of default (possible presentation of evidence ex parte), under the Rules, this consequence is not to be called a declaration of default. [1 Riano 302, 2016 Bantam Ed.]
Alternative Dispute Resolution
Any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency.
It is a system in which a neutral 3rd-party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.
[Court-Annexed Mediation (CAM)]
After pre-trial and after the issues are joined, the court shall refer the parties for mandatory CAM.
Period: Not exceeding 30 calendar days without extension.
Effect of failure of mediation:
a. Proceed with trial; or
b. If the judge is convinced that settlement is possible, referral to another court to proceed with JDR.
[RA 876 (The Arbitration Law)]
Domestic arbitration shall continue to be governed by R.A. No. 876 or the “The Arbitration Law” as amended by chapter 5 of R.A. 9285. (Sec. 32, R.A. No. 9285)
[RA 9285 (The Alternative Dispute Resolution Act of 2004)]
R.A. No. 9285 or “The Alternative Dispute Resolution Act of 2004” institutionalized the use of alternative modes of dispute resolution in the Philippines.
Judicial Dispute Resolution
If the judge of the court to which the case is originally raffled is convinced that settlement is still possible, the case may be referred to another court for JDR.
Period: Non-extendible period of 15 calendar days from notice of failure of CAM. Note that the period to conduct JDR is included in the period for the presentation of plaintiff’s evidence. [Sec. 1[a][i], Rule 30]
Effect of failure: Trial before the original court shall proceed on the dates agreed upon.
[Sec. 9, Rule 18]
Confidentiality
All proceedings during CAM and JDR shall be confidential. [Sec. 9, Rule 18]
Effect of non-appearance at CAM or JDR
Note: Non-appearance at CAM or JDR, if necessary, shall be deemed as non-appearance at pre-trial. [Sec. 3, Rule 18]
Pre-trial Order
When issued: WITHIN 10 CALENDAR DAYS from termination of pre-trial
Effects:
Its contents shall control the subsequent course of action unless:
Modified before trial to prevent manifest injustice
Issues impliedly included or may be inferable by necessary implication
Postponement of Presentation of Witnesses
GR: Postponement PROHIBITED
Results in waiver and same as failure to appear
EXC: Allowed IF
1. Act of God
2. Force majeure
3. Duly substantiated inability of witness to appear and testify
Motu proprio order for summary judgment/judgment on the pleadings
Applicable when:
- No more controverted facts
- No more genuine issue as to any material fact
- Absence of any issue
- Answer fails to tender an issue
Postponement of Presentation of Witnesses
GR: Postponement PROHIBITED
Results in waiver and same as failure to appear
EXC: Allowed IF
1. Act of God
2. Force majeure
3. Duly substantiated inability of witness to appear and testify
Judicial Affidavit Rule
The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits. However, even witnesses for the defendant are required to submit judicial affidavits, which likewise take the place of their direct testimony.
After identification of such affidavits, cross-examination shall proceed immediately. [Sec. 7, Rule 18]
