You are on page 1of 11

1997 Rules on Civil Procedure Rule 18

2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

Rule 18
PRE-TRIAL
Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note
that no case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.

Section 1. When conducted. After the last pleading has been served and
filed, it shall be the duty of the plaintiff to promptly move ex parte that the
case be set for pre-trial. (5a, R20)

In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound
to move ex parte that the case be set for pre-trial. No civil action can reach the trial stage without
passing the pre-trial period.

Pre-trial in criminal cases is only optionalthe accused and his lawyer have to agree. In civil cases,
the pre-trial is MANDATORY no case can reach the trial stage without undergoing Pre-Trial. And it
is the duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pre-
trial can be filed ex parte, an exception to the rule that no motion can be filed ex parte.

Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall
consider:
(a) The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be found to
exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.
(1a, R20)

(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO


ALTERNATIVE MODES OF DISPUTE RESOLUTION

Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you
get something from me and I get something from you. Then we will submit out agreement to the court.
In an amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.

There was an article where it says that one of the best gauge of a good lawyer is not that he has
many cases, but that he knows how to settle a case because he saves his client from a lot of trouble.
While a bad lawyer is one whose cases always end up in trial he has many cases and he does not
have the time anymore to study each cases. So, he ends up inefficient.

As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents
of the United State, gave an advice to lawyers: Discourage litigation. Persuade your neighbors to
compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses
and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man there will still be
business enough. Meaning, if you are a lawyer, you have a strong influence to convince your client to
settle the problem with his opponent. You do not have to worry about losing fees for there are still
cases to come. Even if you will come out the winner in the case, you are still the loser in terms of waste
of time, money and effort.

of a submission to alternative modes of dispute resolution. how to dispose of the case without
passing to court, ba. This is similar to voluntary arbitration in the Labor Code mas mabilis!. Kung sa
court yan, matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng
building. You quarrel with your contractor whether the building is properly constructed or not. That

Property of LAKAS ATENISTA 2


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

kind of dispute has to pass through arbitration like contractors. They will be the one to judge because
they are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang
tinatawag na alternative modes of dispute resolution.

Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre-
trial was a failure? NO, go to [b] to [i] on other ways to hasten the trial.

(b) THE SIMPLIFICATION OF THE ISSUES

Based on the answers filed, issue will be simplified or lessened/reduced to the most important and
relevant ones.

(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;

Take note that there is already a complaint and answer and yet during the pre-trial, the parties can
still amend their complaint or answer. That means that amendments of pleadings are favored even at
this stage. Amendment is necessary which is favored by the liberality principle, to adjudicate the case
upon proper merits.

INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC


21 SCRA 887

BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a
necessity for amending the complaint. It was amended. Is there a need for a new pre-trial
for the amended complaint?
ANS: Where a pre-trial has already been had, the fact that an amended complaint is
filed, does not mean the need for a new pre-trial. Pre-trial is not mandatory. Exception to
this is when the parties agree to conduct another pre-trial.

(d) STIPULATION OF FACTS

Stipulation of facts means we can agree on some facts and there is no need of proving them in court
because we already agreed. Such will hasten the trial because matters validly agreed upon can be
dispensed with (e.g., size of the land, improvements thereon, stipulations, due execution of documents,
etc.)

Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate
facts under the threat of dismissal. In the 1988 case of:

FILOIL MARKETING CORP. vs. DY PAC & CO.


160 SCRA 333

HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on


the facts and issues that may possibly crop up in a particular case, upon pain of dismissal of
such case. The process of securing admissions whether of facts or evidence is essentially
voluntary, since stipulations of facts, like contracts, bind the parties thereto who are not
allowed to controvert statements made therein.

(e) THE LIMITATION OF THE NUMBER OF WITNESSES;

During the pre-trial if there is no settlement, the court will ask, Mr. Plaintiff, how many witnesses
will you present? The plaintiff will say that he will present one hundred witnesses. So the court will
start asking, Why so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10?
Anyway, what one witness will say will just be the same as what the other witness will say.
That is allowed and that is part of the pre-trial because it will be shortened if the number of
witnesses will be reduced in number.
Property of LAKAS ATENISTA 3
1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;

This refer to Rule 32 the title of which is Trial by Commissioners. A commissioner is a person
who may be appointed by a judge to assist the court in determining certain issues.

EXAMPLE: Two people dealing with each other ended up suing each other because according to
plaintiff, You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa.
But defendant said, No, no, no! Based on my record, overpaid pa ako. That can happen where there
has be confusion already on the invoices and receipts. Now, if we will try this case in court it will take
time because you have to present to the judge every receipt, every invoice. And these invoices may
number by hundreds. And what is worse is that the judge is not an accountant so he will have a hard
time reconciling these receipts and invoices.
Suppose the judge will say, Alright, since this is a matter of accounting, I will appoint a CPA to
assist me. You can choose whoever this accountant or he may be appointed by this court. Then you
go to him and present all your documents. And then he will now analyze and then submit to me his
findings. Based on his findings we will find out whether the defendant still owes the plaintiff or there
is no more utang.
That is what you call, reference of issues to a commissioner. That will shorten the proceedings
because if the judge will go over the documents one by one it will take time.

EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, Your fence
has already encroached on my property. Defendant answers, No, no, no. This is the boundary. So
bakbakan na naman kayo. The court will ask, Is it true you encroached on his property? How will
the court know that? I think that is very technical. It is a geodetic engineer surveyor to resolve the
issue. He will plot the measurement and then he will submit a sketch. Then we will find out if there is
an encroachment or not.
As far as the judge is concerned, he does not know anything about description of the land, he is not
a surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be
appointed. What do you call this surveyor? He is a commissioner.

(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY


JUDGMENT, OR OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE
FOUND TO EXIST;

Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But we will not take them up because
they will be taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary
judgment are remedies or procedure devised under the Rules of court for the speedy determination of
a civil case. It is one way of speedily terminating a civil case. Once it is rendered, tapos na ang kaso.

The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary
judgment if there is a ground. In the same manner, the court may order the dismissal of the action
should a valid ground therefor be found to exist because it is possible that based on the complaint,
there is no ground to dismiss but in the course of pre-trial, the plaintiff may admit something which
turns out to be a ground for dismissal.

EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago
and did not pay. But during the pre-trial, defendant said, Actually, judge, hindi man yan three years
ago. That was thirty years ago! Plaintiff answered, Actually, judge, totoo yan. So judge said, My
golly, the action has prescribed so I will order the dismissal. These things can come out in the pre-trial.

(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;

This means that the case will be suspended, nothing will happen in the meantime. Hindi naman
dismissed. The case will just be held in abeyance.

Property of LAKAS ATENISTA 4


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

EXAMPLE: Suppose the parties will say, Judge, so far we cannot settle. But maybe if you will give
us one or two months we will be able to come up with a solution. We will meet once every three days
para mag-istorya. I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige!
Because the law encourages amicable settlement.

Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are
talking about now? What are the possible grounds for suspending the proceedings in a civil case?
A: Rule 20, Section 8 on suspension of actions.

Sec. 8. Suspension of actions. - The suspension of actions shall be governed


by the provisions of the Civil Code. (n)

Actually, Section 8 points to Article 2030 of the New Civil Code:

Art. 2030. Every civil action or proceeding shall be suspended:


1. If willingness to discuss a possible compromise is expressed by one or
both parties; or
2. If it appears that one of the parties, before the commencement of the
action or proceeding, offered to discuss a possible compromise but the other
party refused the offer.
The duration and terms of the suspension of the civil action or proceeding
and similar matters shall be governed by such provisions of the rules of court
as the Supreme Court shall promulgate. Said rules of court shall likewise
provide for the appointment and duties of amicable compounders.

So a civil action may be suspended if at any time one of the parties offered to discuss a possible
compromise because the policy of the law is to have civil cases settled between the parties amicably.
Let the parties talk among themselves to come up with the possibility of amicable settlement even if
one of the parties refuse to accept such an offer.

(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.

That is very broad any other matter which will hasten the case. Anything under the sun can fall
under this.

PURPOSE OF A PRE-TRIAL

A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case
immediately because of amicable settlement. If the parties can settle, then there is no need to proceed
to trial. But if for valid or serious reason they cannot settle, because the court can only encourage and
not force a settlement, then they shall proceed with the pre-trial to find out if we can have the case tried
speedily and decided immediately by talking about other things like amending the pleadings,
stipulation of facts, admission of documents to avoid unnecessary proofs, limitation in the number of
witnesses. So if we cannot settle, we can talk of other things to speedily terminate the case. Instead of
trying the case for two years, we can probably finish in six months.

DEVELOPMENT BANK vs. COURT OF APPEALS


169 SCRA 409

NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is
actually the bible on pre-trial. And this is what exactly Justice Narvasa said:

HELD: Everyone knows that a pre-trial in civil actions is mandatory, and has been so
since January 1, 1964 (effectivity of the Revised Rules of Court). Yet to this day its place in
the scheme of things is not fully appreciated, and it receives but perfunctory treatment in
many courts [Meaning, it is only complied with for the sake of compliance.] Some courts
consider it a mere technicality, serving no useful purpose save perhaps, occasionally to
furnish ground for non-suiting the plaintiff, or declaring a defendant in default, or,
wistfully, to bring about a compromise. The pre-trial device is not thus put to full use.
Property of LAKAS ATENISTA 5
1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

Hence it has failed in the main to accomplish the chief objective for it: the simplification,
abbreviation and expedition of the trial, if not indeed its dispensation. This is a great pity,
because the objective is attainable, and with not much difficulty, if the device were more
intelligently and extensively handled.

The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of
Rule 18.

Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on


counsel, or on the party who has no counsel. The counsel served with such notice
is charged with the duty of notifying the party represented by him. (n)

This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to
comply with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that
the case be set for trial and you will be given a notice of pre-trial from the clerk of court. The notice of
pre-trial shall be served on counsel or on the party who has no counsel.

Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party
dalawang notice notice to the lawyer is not notice to the party, as an exception to the Rule 13. But
NOW, to simplify the job of the court processor, the rule is, notice to the counsel is now notice to the
party.

ARCILLA vs. ARCILLA


138 SCRA 560

FACTS: There was a pre-trial conference on July 29, where all the parties are notified
through their lawyers pursuant to Section 3. They appeared but somehow the pre-trial was
terminated on July 29. The court decided to reset the pre-trial on Oct. 2. The parties agreed.
Normally, the procedure is, when that happens, there will be another written notice. There
should be another written notice sent to the lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the defendant did not appear.
With that, he was declared to have lost his rights to present his side. He was considered in
default. He questioned the order on the ground that he did not receive any notice on the
Oct. 2 pre-trial conference. Therefore, all subsequent proceedings, including the judgment
rendered against the defendant were void. Is he correct?

HELD: At first blush, petitioners aforesaid contention appears very tenable, for indeed
it is settled that a declaration of default, in the absence of a notice of pre-trial constitutes
denial of due process. But a deeper examination of the pleadings and the record of the case
would show that petitioner was present during the pre trial conference on July 29, 1975
when the lower court re-set the pre-trial to October 2, 1975. On the said date, however,
although notified, both petitioner and his counsel did not appear, hence, the declaration of
default.

So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY
earlier, he failed to appear that is why he was penalized under Section 5. When the court reset the pre-
trial, he agreed. He already knew. Notification need not be too technical. Despite the lack of a written
notice, the defendant was penalized in the ARCILLA case.

Sec. 4. Appearance of parties. It shall be the duty of the parties and their
counsel to appear at the pre-trial. The non-appearance of a party may be excused
only if a valid cause is shown therefor or if a representative shall appear in
his behalf fully authorized in writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents. (n)

There must be notice of pre-trial which will be issued after you comply with Section 1. Then there
will be a schedule. The notice will be served upon the counsel or upon a party, assuming that he is not

Property of LAKAS ATENISTA 6


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

represented by a lawyer. The counsel served with such notice is charged with the duty of notifying the
party represented by him.

And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial.
Meaning, the lawyer alone who is there will not suffice. Kailangan dalawa kayo.

Q: Suppose the lawyer will say, Well, your honor, I am here. Anyway, appearance by counsel is
appearance by party. Puwede ba yan?
A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his
counsel because the purpose of a pre-trial is to consider the possibility of an amicable settlement.

Q: Can the lawyer enter into an amicable settlement with the adverse party?
A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter
of bargaining.

EXAMPLE: Defendant says, Yung interest na na-due, hatiin na lang natin. You condone half of it,
and bayaran ko is fifty percent na lang. And give me 24 months to pay. The lawyer says okay. Then
pag sabi mo sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties
and their should both be present. And that is also the reason why a notice of pre-trial should be given
to the party.

Section 3 says a counsel served with such notice is charged with the duty of notifying the party
represented by him. That is new provision. The OLD LAW is, based on decided cases, aside from
notice to the lawyer, there must be another notice to the party. So if you notify the lawyer but you did
not send a separate notice to the party and therefore the party did not appear, you cannot take it
against him. Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is
the old jurisprudence OBSOLETE!

But the PRESENT RULE is: Notice to lawyer is notice to party.

Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in
his behalf duly authorized in writing to enter into an amicable settlement, to submit to alternative
modes of dispute resolution, etc.

EXAMPLE: You tell your client, We will have a pre-trial next week and your presence is
necessary. Client: But I am leaving for America tomorrow. I cannot be there. Lawyer: Is there
anybody whom you can authorize, take your place? Client: Yes, my brother or my manager.
Lawyer: Okay, you write a written authority that you are authorizing your brother to appear in your
behalf with full power to settle. Yan and tinatawag na Power of Attorney. Intiendes?

Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who
is given the Power of Attorney authorizing him to enter into an amicable settlement. Walang Problema
yan. Otherwise, you will see in the next section what is the effect if you fail to appear in a pre-trial
automatic, talo ka sa kaso.

Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear
because it has no physical existence. Who is authorized to appear in a pre-trial in order to enter into an
amicable settlement? Are the managers or vice-president, authorized to appear in a pre-trial in behalf
of the bank which is a party to the case?
A: NO! Even the president or the chairman of the board has no power.

Q: Who can bind a Corporation?


A: Only the Board of Directors has the authority to bind a corporation.

Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao,
am I saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend
the pre-trial and pass a resolution inside the courtroom?

Property of LAKAS ATENISTA 7


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

A: No. The Board can pass a resolution naming the person who will represent the corporation. So,
the manager for example, can appear in the pre-trial provided he is authorized through a board
resolution.

Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first
purpose of pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to
enter into an amicable settlement.
Non-appearance may be EXCUSED only if:

1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA)
2. For a valid cause example, if you are sick.

Q: If it is a corporation, what is that authority?


A: It is a board resolution because only the board of directors has the authority to bind the
corporation.

EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL

Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear


when so required pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice, unless otherwise
ordered by the court. A similar failure on the part of the defendant shall be
cause to allow the plaintiff to present his evidence ex parte and the court to
render judgment on the basis thereof. (2a, R20)

Q: What happens if it is the plaintiff who failed to appear in the pre-trial?


If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the
dismissal is with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17,
Section 3: Failure to appear during the trial for the presentation of his evidence-in-chief. So, if the
plaintiff fails to appear during the trial when it is his turn to present his evidence, under Rule 17, his
case shall be dismissed and generally the dismissal is with prejudice, an adjudication upon the merits.
(Res Adjudicata applies).

The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for
dismissal of the action.

Q: Is there any difference between non-suited and dismissal of action?


A: There is suppose to be a difference based on the case of

BA FINANCE CORP. vs. COURT OF APPEALS


224 SCRA 163 [OBSOLETE!]

HELD: When the defendant moves to dismiss the case, then you are also killing your
counterclaim. If you are, the defendant you should not move for the dismissal. You only
move to declare the as non-suited because when the plaintiff is non-suited, he is bared from
proving his cause of action but the case is not dismissed. Since the case is not dismissed, it is
like the plaintiff who is in default.

Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still
alive. So, the ruling in BA FINANCE CORP. is now OBSOLETE.

Q: What happens if it is the plaintiff who failed to appear in the pre-trial?


A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the
plaintiff to present his evidence ex-parte and the court to render judgment on the basis thereof.

You will notice that if it is the defendant who failed to appear under the old law, he will be
considered as in default. NOW, the word default is avoided it shall be a cause to allow the plaintiff
to present his evidence ex parte and the court to render judgment on the basis thereof. That is the
same effect as the old rule.

Property of LAKAS ATENISTA 8


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

Q: Why is the new rules avoiding the word default?


A: Because, strictly you cannot really have the defendant declared in default when he has filed an
answer. Kaya nga the Rules of Court was very clear in the 64 Rules by saying considered as in
default to distinguish it . But the confusion is still there eh. In other words, to avoid confusion, the
plaintiff will be allowed to present evidence ex parte. Para na ring in default without using the word
default.

Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party.
So parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look
at Rule 9 on default, the proper motion for the defendant in default is to file a motion to lift the order of
default on the ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for
the defendant who failed to appear in the pre-trial?
A: NO, that is the case of

JUNGCO vs. COURT OF APPEALS


179 SCRA 213 [1989]

HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to
lift the order of default and you have to allege that you have a meritorious defense. But in
Rule 18, when you file a motion, it is a simply a motion for reconsideration where you will
state the reason why you failed to appear and ask that the order be reconsidered and that
the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious because you have
already filed an answer. The defense is already there. Unlike in defaulted defendant, the
court has no idea what is your answer kaya nga you must convince the court that you have
a meritorious defense.

So a simple MOTION FOR RECONSIDERATION is sufficient.

Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for
reconsideration. The court reconsidered and recalled the plaintiffs ex-party presentation of evidence.
Do we they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
EXCEPTION: YOUNG vs. CA, 204 SCRA 584

General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS


169 SCRA 409 [1989]

HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the
plaintiff continue and just let the defendant cross-examine the plaintiffs witnesses. As a
general rule a second pre-trial cannot be granted, the remedy instead is to go to trial.

Exception: YOUNG vs. COURT OF APPEALS


204 SCRA 584 [1991]

HELD: The pre-trial stage is completed after a party had been ordered non-suited and
the complaint is dismissed or after the court allows the plaintiff to present his evidence ex-
party. The order lifting it does not revert the action to its pre-trial stage, or authorize, much
less, a second pre-trial UNLESS the parties themselves had voluntarily agreed that the case
be set anew for pre-trial. Neither the Rules nor the doctrine bars the parties from agreeing,
after such lifting, to hold a pre-trial and to effectively accomplish its objectives.

PRE-TRIAL BRIEF

Sec. 6. Pre-trial brief. The parties shall file with the court and serve on
the adverse party, in such manner as shall ensure their receipt thereof at least
three (3) days before the date of the pre-trial, their respective pre-trial
briefs which shall contain, among others:

Property of LAKAS ATENISTA 9


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

(a) A statement of their willingness to enter into amicable settlement or


alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their
respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to
appear at the pre-trial. (n)

This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is
not new because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989.
The submission of pre-trial briefs by lawyers has been required by that Circular. This circular is now
incorporated.

Take note that at least three(3) days before the date of pre-trial the parties lawyers should file pre-
trial briefs to be furnished with each other. In that brief, you summarize everything covered by your
pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and
answer, only the document where you condensed everything will be read. It contains: Cause of action;
defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or
exhibits you would like the present; or who are the witnesses and what are they going to testify, etc.
Thats a summary of everything that is going to happen from the beginning of the trial up to the end.

Q: What happens if a party fails to file a pre-trial brief?


A: Last paragraph, Failure to file the pre-trial brief shall have the same effect as failure to appear a
the pre-trial conference. So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may
be ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that would be a cause
for the court to allow the plaintiff to present his evidence ex-parte.

Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be
penalized by the court with a dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his
cause of action (Rule 17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)

Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be
allowed to present his evidence ex parte and judgment be rendered based purely on such evidence?
A: In the following instances:
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)

Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be


recorded. Upon the termination thereof, the court shall issue an order which
shall recite in detail the matters taken up in the conference, the action taken
thereon, the amendments allowed to the pleadings, and the agreements or
admissions made by the parties as to any of the matters considered. Should the
action proceed to trial, the order shall explicitly define and limit the issues
to be tried. The contents of the order shall control the subsequent course of
the action, unless modified before trial to prevent manifest injustice. (5a,
R20)

A pre-trial conference although it is less formal than a trial, thats why in most cases, pre-trial is not
done in open court but inside the chamber of the judge where the atmosphere is more relaxed because
you are going to talk about settlement, eh. However, do not believe that that is just a decoration. That
is an official proceeding. Everything there is recorded. According to section 7, after a pre-trial
conference is terminated, the court will issue what is known as pre-trial order. That is now expressly
required by the rules.
Property of LAKAS ATENISTA 10
1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial

A pre-trial order should state or should summarize everything what was taken up in a pre-trial
conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the third
sentence: Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the action, unless modified before trial to prevent
manifest injustice. It may be an ordinary sentence but the effect of that is terrible.

Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can
determine the issues based on the admissions and denials in the answer. For instance, there are five
issues, they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject
other issues which are not important with the agreement of the parties. Thus, there may be only one
real issue like whether or not the loan has been paid. The court may then issue a pre-trial order
containing such issue. The defendant may have also several defenses in his answer. After the pre-trial
order is issued, such order should be followed. Forget the complaint and the answer.

In effect, the complaint and the answer has already been superseded by the pre-trial order. This
section in effect says that the pre-trial order supersedes the pleadings.

That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the
importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed
Rule 18 religiously, during the trial the judge will not have a hard time in determining what is the issue
to be resolved. And babasahin lang niya ay ang pre-trial order. Everything is to be based there.
Without the pre-trial order, you will still have to look at the pleadings of both parties. The pre-trial
order is a very important piece of document.

There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the
plaintiff is claiming damages from the defendant. His allegations naturally would point out that all
fault and negligence is caused by the defendant. As usual, when the defendant files his answer, he is
denying that. As a matter of fact, he will claim that the one negligent is the plaintiff. Chances are, since
his vehicle was also damaged, the defendant will file a counterclaim. So, pasahan yan!

What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The
plaintiffs lawyer asked the defendants lawyer to define the issues: (1.) Is the plaintiff liable for actual
damages on defendants counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim
for exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorneys fees
and expenses for the litigation?

So, those were the issues. The plaintiffs lawyer, siguro hindi nakikinig ba. Judge asked, O, do
you agree panyeros? Yes, Okay. When the pre-trial order was issued, those issues were contained.
Wheres the defendants liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is
liable to the defendant. During the trial, the plaintiff presented his evidence to prove the defendants
liability. The defendants lawyer objected on the ground that there was no issue contained in the order
on the liability of the defendant. The only issue is whether plaintiff is liable to the defendant.
Naisahan ang plaintiff akala kasi niya ang pre-trial order is not important.

(Dean did not know how the case ended, but commented: The plaintiff asked for the amendment
of the pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be
held liable. Now, if I were the judge, I will really modify because its unfair no! You are the one suing
and now you end up as a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa
pre-trial! [gago!])

Now, an example of the last sentence of Section 7 UNLESS modified before trial to prevent manifest
injustice is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not
recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a
pre-trial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be
amended to conform with issue/s raised.

Property of LAKAS ATENISTA 11


1997 Rules on Civil Procedure Rule 18
2001 Edition < DRAFT COPY; Please check for errors > Pre-Trial


published by

LAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph
Martin Castillo Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo
Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales Regina Sison
Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty Wong Jude Zamora
Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao
Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina Cabrera
Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude Fuentes Maila Ilao
Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos Paisal Tanjili

LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez Jessamyn Agustin


Judee Uy Janice Joanne Torres Genie Salvania Pches Fernandez Riezl Locsin
Kenneth Lim Charles Concon Roy Acelar Francis Ampig Karen Cacabelos
Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul Ongkingco
Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle Santos Joshua Tan
Thaddeus Tuburan John Vera Cruz Mortmort

Property of LAKAS ATENISTA 12