Introduction:

A. Definition of terms:

1. Counseling-is the art of giving advice and information on a particular problem or

hypothesis including the adoption of a course of action to be taken for the solution thereof.
2. Legal Counseling-is the art of giving advice and information concerning the solution of a
legal problem arising from a given state of facts and the adoption of appropriate reliefs or
remedies under the law for the satisfaction and enforcement of a legal obligation before a
judicial or quasi-judicial body.
3. Court of Justice-is a judicial body or tribunal created by law vested with jurisdiction of
power to hear and adjudicate litigious conflicts and to award proper reliefs and render
judgments based upon the evidence presented.
4. Quasi Judicial Body-is an administrative body or agency belonging to the executive
branch of the government vested with jurisdiction to hear and adjudicate non0litigious cases
brought before it by disputed parties and empowered to enforce its judgments and orders
like a court of law and to punish for contempt
5. Administrative Body or Agency-is an instrumentality of the executive branch of the
government vested by law with jurisdiction to settle and adjudicate controversies arising from
the interpretation, application and enforcement the law or administrative rule or regulation.
6. Arbitration-is the process of the extrajudicial settlement of controversies in the
administrative level before an arbitrator thru the voluntary will of the parties arising from the
violation of law. Administrative rule or regulation.
7. Conciliation-is an extrajudicial process of settling disputes thru the voluntary submission of
the parties before the Barangay Lupon or the other administrative body, usually arriving at a
compromise agreement which serves as basis of a court judgment, or as a condition
precedent to vest jurisdiction to a court of law.
8. Compromise Agreement-is a mutual agreement or understanding usually reduced into
writing entered into and executed by parties litigants whether judicially or extrajudicially
which serves as basis for a court judgment.
9. Law Practice-is the act of performing any activity pertaining to a bonafide member of the
bar which carried out on a habitual or continuous process and translated into action by
means of giving legal advice, drafting of documents or appearance in court or other
administrative or quasi-judicial body involving the use of faculty or intelligence of one skilled
in law who is entitled to a legal fee.
B. Importance of Legal Counseling

There is a necessity for the services of a lawyer who is trained to assist people confronted
with legal problems.
But when all avenues for conciliation are exhausted with no certainty of a consensus in sight,
then the parties are left with no recourse in order to protect their interests, but to go to court.
C. Importance of Lawyers in Society

In ancient times, lawyers have already played an important roe in the conduct of human
relations.
The necessities of civilized men, their human rights, all the complicated relations of life
render the legal profession honorable and indispensible.
As such, there ought to be norms of conduct intended to regulate the practice of the
profession, otherwise, there will be no stopgap to abuses and the human tendency to heed
the influence of evil. These norms of conduct or moral standards are referred to as Legal
Ethics.
Under a kind of governance where everybody is equal before the eyes of the law, the
services of a lawyer are second to none. The complexity of his functions places him in
peculiar situations of influence in his continuous contact with a great variety of people and
interests.
A lawyers advice and assistance is sought by the wealthy and the poor; strong and the
weak; honest and dishonest; men and women of all professions and persuasions; and every
class in society.
D. Legal Ethics Essential Component of Law Practice

Legal Ethics is defined as that branch of moral science which treats of the duties which as
attorney-at0law owes to his client, to the court, to the bar and to the public.
Sources of Legal ethics
o Constitution
o Rules of Court
o Decisions of the SC and CA
o Decisions of the United States Supreme Court
o Art. 1491 of the NCC
o Art. 209 of the RPC
o Art. 2208 of the NCC
E. What is considered Practice of Law?

There is no exact definition of the phrase “practice of law”

The SC, however had in many cases held, that “law practice is more than an isolated
appearance, for it consists of frequent or customary actions, a succession of acts of the
same kind.”
Preparing documents and rendering legal services are within the term practice of law.
The appearance of counsel on one occasion is not conclusively determinate of engagement
in the practice of law.
An ordinary preparation and drafting of legal instruments which involves determination by a
trained legal mind of the legal effects of facts and conditions, or whenever such acts involve
the use of still and intellect by a legal mind trained and schooled in a legal school of learning
F. What is not Considered Practice of Law?

Gratuitous furnishing of legal aid to the poor and unfortunate who are in pursuit of any civil
remedy as a matter of charity
The mere search for records of realty to ascertain what they may disclose without giving
opinion or advice as to the legal effects of what may be found
If work involves only clerical labor of filing in the blanks on stereotyped form or a mere
mechanical act of copying from a file copy or finished document that involves no legal thing
is not considered legal practice.
*What is important is whether the act establishes a lawyer-client relationship, and then it is
considered as a practice of law
G. Professional Responsibility

In the conduct of lawyering, an officer of the court must be always be guided by a sense of
professional responsibility
An advocate of law must be:
o A man of integrity whose word commands respect and authority
When not to accept a case:
o “Don’t accept a case unless you believe in it”
o if the client has no cause of action or defense at all, but merely seeks your legal services
to delay or buy time, to obstruct justice and to harass the court or the adverse party
Scope of lawyer’s advice and control
o A lawyer has control with respect to the procedural aspect of the case. The final decision
whether to litigate or not, or to enter into a compromise or not, or whether or not to take an
appeal or not should come from the client.
o He must be frank with his client in explaining that his case will not prosper in court and be
ready to substantiate his opinion on this matter based on his legal knowledge and
experience
H. Extent of lawyer’s authority

The lawyer has the authority to choose the proceedings he will institute and the witnesses he
will present in court.
He can make admissions of fact but not of law
The mistakes of the lawyer cannot be utilized as grounds for a new trial unless it is shown
that the incompetency of the counsel is so serious that his client is prejudiced and was
prevented from fairly presenting his case.
An attorney cannot bind his client by entering into an agreement compromising and settling
the rights of the client without special authorization.
Chapter I Beginning a Law Practice
o Well equipped with a vast knowledge in Psychology
o An expert on human relations
o A skillful arbitrator on the bargaining table
o An actor
A. Prefatory statement

Solo Private Practice

Often a new lawyer often encounters difficulty in going into solo practice.
A solo practitioner starts from scratch, will most likely be unable to meet the souring cost of
office rentals, equipment, travel and representation.
While a solo practitioner enjoys the advantage of being his own boss and is not accountable
to anyone except himself, yet not being able to establish a name for himself in his initial
practice, oftentimes finds difficulty in attracting good paying clients.
Assistant or associate in a private law firm

It offers better opportunities

This could be attained by organizing a law firm among your classmates or by joining into a
partnership with some familiar friend lawyers who are well-to-do and financially capable of
satisfying the overhead expenses of maintaining a law office.
It is advisable that the partnership agreement be reduced to writing as the partnership
expands and progresses to avoid future misunderstanding.
Joining a corporate law department
Offers higher salary and doles out generous pecuniary and fringe benefits not usually
enjoyed from a private law firm
The disadvantage lies in the fact that once a lawyer has stuck up with a corporate legal
position, he finds it difficult to go into private practice later on for fear of losing a higher
paying job
How a corporate law department operates

Salaried layers in these departments do legal work for their respective employers, and this is
generally permissible in this in this jurisdiction.
Some companies permit their salaried lawyers to engage in private practice their salaried
lawyers to engage in private practice during off-hours, others do not.
The demands of their regular jobs are so great and their local connections so limited that
even when permitted, few corporate counsels do much in the way of private practice.
The usual basic sectioning in law department structure is either by legal subject matter – for
instance tax, corporate affairs, real estate, litigation, patents, labor, immigration and
insurance.
Others are done by administrative segments – such as tax, sales research, traffic
departments, individual corporate subsidiaries, civil law, criminal law, special proceedings
under litigation
Government employment
Those who are already in the service before taking the bar, simply utilize their profession for
further promotion to higher positions in the offices and agencies in which they are already
employed.
The disadvantage however of joining government service is that once you get stuck up to
your job with a well paying salary, you find it difficult to leave the same employment which
guarantees your future security like being entitled to a GSIS pension upon retirement.
The better option therefore for those who intend to pursue private law practice, is to seek
government employment for the purpose of acquiring specialization and experience in
specific fields like immigration cases, insurance, tax cases, and labor cases, and after a stint
of say, five years, and you feel adequately prepared already to stand on your own feet, then
it is time to open a private law office
B. Opening a Law Office

Pointers on opening a law office

Located in busy districts to make it more accessible
Near government offices like the Post Office, the Register of Deeds, Office of the Assessor,
or BIR or near courts where you appear
Accessible to transportation
One man office
It is sufficient to rent an office space to accommodate an office table and a small typing table
for your secretary
It is advisable to reserve a separate room where you can discuss confidential matters with
your client
What should a filing system include
i. Client’s files – this includes pleadings and other court records, documents and decisions,
which comprise the bulk of the cases of the different clients who have hired the services of
your law office
ii. Collection files – these files need a separate filing cabinet and should be given importance
since this determines the income of the law office
iii. Personal files – these refer to the personal activities of the lawyer, his personal
correspondence and communications, personal records, schedule of appointments and
attendance in civil and bar organizations, taxes and finances
iv. General correspondence files – refer to all records of correspondence of the law office
with other persons or entities dealing with the office, personnel equipment, charities etc. not
involving clients
Tips on Billing to clients
i. The nature of the case involved
ii. The difficulty and intricacy of the legal issues as compared to simple cases
iii. The time and effort to be invested from the rafting of the pleadings to the commencement
of the litigation in court, the projected and number of court appearance up to its termination
in the trial court
iv. Other unexpected incidents like filing and arguing a motion, the estimated time and effort
to be spent for argumentation
v. In case of appeal, the expenses incurred in perfecting an appeal, preparation of appeal
briefs, and additional amount of attorney’s fees for the purpose of appeal
C. Pointers in Dealing with the Client

Frankness and tact should be the climate in dealing with the client.
With respect to the fixing of payment of attorney’s fees, a business-like approach should be
the criterion, so that the client should not feel cheated or taken advantage of.
Every delay in the outcome of the case should be explained to the client after the close of
each day of hearing.
It is a normal reaction of the client to become wary every time the case is postponed, hence,
it is the duty of the lawyer to explain to the client the cause of the postponement to avoid
suspicion of connivance with adverse counsel.`
Fixing of Attorney’s Fees

should be fixed preferably in writing

also called as retainership contract which marks the birth of the attorney and client
relationship
Factors for fixing Attorney’s Fees:

1. Value of the litigation involved

2. The professional standing of the lawyer in the community
3. The difficulty of the issues involved
How to sustain a law practice

the lawyer must attend workshops, seminars and conventions that conduct lectures on legal
education especially those sponsored by the UP Law Center
must also read IBP Journal and the Lawyer’s Journal
must have membership in different law associations and lawyer’s organizations in order to
familiarize himself with the recent developments in the legal and judicial system
Some Tips on Specialization
 it must be really your favorite so as to show your skill and expertise in order to be
considered a specialist
must have the ability to develop public relations with government officials in charge with the
processing and approval of papers in their respective agencies
How to satisfy a client (really now?)

-the new lawyer should endeavor to protect and take good care of his relationship with his
client -treat the client with:

1. Cordiality and compassion

2. Sincerity and honest intentions
3. Spirit of not giving when all the odds seem to shatter the brightest hopes
How to make the client happy and comfortable:

1. Remember who you are working for – the real boss is the client
2. Define the relationship – make sure the client understands everything
3. Keep in touch – give them updates
4. Keep at least two docketing systems – one you manage and the one your staff manages
5. Accept phone calls – be accessible and be of service
6. Promptly return your phone calls – tell your staff that you call clients back
7. Spend time with your staff – update each other
8. Paper the worlds – give client copy of everything
9. Do not procrastinate – “handle it today”
10. Send out an evaluation sheet – ask the client to evaluate your performance after the
case
How to obtain clients:

1. Reputation for capability as a lawyer

2. Reputation for trustworthiness
3. Personal acquaintance with the lawyer
4. Referral by neighbor or friend
5. Participation in civic, religious and community activities
6. Referral by another lawyer
7. Lawyer’s political activity
8. Lawyer’s appearance and conduct in court
9. Other reasons
-in sum reputation plus conduct compromise 85% for client’s reason in selecting his lawyer -
Warning: Do not make every conversation into a
sales talk or law lecture on your legal ability -Keep your name in public not by advertising but
by printing professional cards, it is more prudent to simply print your name, office address,
and telephone number Characteristics that clients look from lawyers:
1. Friendliness
2. Promptness
3. Courtesy
4. Respect for clients
5. Business like attitude
6. Consideration in keeping clients informed
What lawyer’s think clients should expect:
1. Prompt and thorough communications
2. Prompt handling of the client’s work
3. Honest and straightforward dealing with the client
4. A courteous and sympathetic attitude
5. Competence and diligence
-Keep an interview with a client in private and outline your proposed course of action How to
keep your clients happy:

1. Avoid unnecessary delay

2. Keep your client informed
3. Be there when your client wants you
4. Look out for your client’s interests
5. Look as effective as you are
Changing from solo practice to partnership (advantages)

1. Greater earnings – lawyers in partnership earn over 100% than solo practitioners
2. Greater efficiency – can do a job effectively and more quickly
3. Lower overhead – there will be reduction in overhead costs
4. More clients – one lawyer may act as the outside man
Factors involved in changing to a partnership:

1. Know the right kind of partner

2. Finding him
3. Drawing up the partnership agreement
-take plenty of time to get to know him, watch him in action and exchange full information. -in
any event don’t rush into it

Chapter II Work tasks of Lawyers

(AND – LF – PAS)

A. Advice
B. Negotiation
C. Drafting
D. Litigation
E. Financing
F. Property Management
G. Acting as Executor or Administrator
H. Specialization
A. ADVICE
Lawyer’s advice consists of recommendations as to what course of action should be
followed, and the reasons and data supporting these recommendations. The advice may
also center on information’s and probable results based on the following additional
considerations:
1. anticipated reactions of courts and other administrative agencies or quasi-judicial bodies;
2. probative value of evidence;
3. desires and resources of clients and affected parties; and
4. Alternative courses of action.
 The lawyer merely restricts his role to illuminating choices, not recommending or deciding
among them.
B. Negotiation and Conciliation
Negotiation – dealing with another in an effort to reach an accord between the client and this
other person.
Essential elements of negotiation:
1. proposals to the other side
2. counter-proposals
3. reconsiderations
4. compromise
5. advice to clients
6. client instructions to counsel
Maybe through telephone, correspondence or face to face conferences.
The lawyer must be equipped with a special power of attorney because a lawyer and a client
relationship are likened to that of agent and principal in a contract of agency forging out of a
compromise agreement. Otherwise, the judgment of the court based on the compromise
agreement cannot be enforced it being null and void, unless, ratified thereafter.
Judgment – null and void
Compromise agreement – voidable until ratified by the client
the things which are under administration;
(8) To lease any real property to another person for more than one year;
(9) To bind the principal to render some service without compensation;
(10) To bind the principal in a contract of partnership;
(11) To obligate the principal as a guarantor or surety;
(12) To create or convey real rights over immovable property;
(13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted before the agency;
(15) Any other act of strict dominion.
Most common subject of negotiations are: closings, coverage of title, insurance policies,
eminent domain awards, conflicts between real estate brokers over sales commissions,
mortgages, real estate tax adjustments, lease terminations, tenant relocations and
settlement of litigation.
Out of court settlements are most desirable because:
Clients – fearful of becoming emotionally distressed by the uncertainties of trial and the
expense of litigation.
Lawyers – to save time and effort
Effective negotiation techniques:
1. Speeding up litigation process (Delay)
2. Concealment of Facts
Special Power of Attorney – Article 1878 of the Civil Code

Art. 1878. Special powers of attorney are necessary in the following cases:
(1) To make such payments as are not usually considered as acts of administration;
(2) To effect novation which put an end to obligations already in existence at the time the
agency was constituted;
(3) To compromise, to submit questions to arbitration, to renounce the right to appeal from a
judgment, to waive objections to the venue of an action or to abandon a prescription already
acquired;
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the ownership of an immovable is transmitted or
acquired either gratuitously or for a valuable consideration;
(6) To make gifts, except customary ones for charity or those made to employees in the
business managed by the agent;
(7) To loan or borrow money, unless the latter act be urgent and indispensable for the
preservation of
Conceal from the other side the least favorable terms that their clients are willing to accept.
3. Shifting negotiation technique
C. Drafting
Drafting – is the writing and revision of written instruments which includes not only the
complete preparation of an instrument by one person, but its review and modification by
others.
Typical legal documents:
1. usual contracts and deeds;
2. sales;
3. leases;
4. mortgages
5. wills;
6. partnership agreement;
7. articles of incorporation;
8. pleadings, compromise agreement;
9. decisions, and resolutions;
10. press releases;
11. letters;
12. staff memoranda; and
13. advertisements
One does not need to be a gifted writer to be able to draft a nearly perfect document, it is
sufficient that the document contains the essential requisites and formalities provided by law,
D. Litigation
Litigation -proceedings before any tribunal whether judicial or quasi-judicial or administrative
body vested with Jurisdiction to decide issues involving parties who are entitled to appear
before the decision maker and prosecute their cause. In addition to matters heard by courts,
this includes many of the proceedings before government administrative agencies and even
those before such private adjudicative bodies as arbitration boards and member disciplinary
committees of trade and professional associations.
Essential difference between negotiation and litigation:
1. In litigation a third party decides issues involving others;
2. In negotiation parties with conflicting interests seek resolve or accommodate to them by
mutual agreement among themselves.
How to proceed effectively in uncontested annulment suits.
If a lawyer wants to end the litigation very quickly in an annulment of marriage suit, all that
the parties have got to do is to arrange thru their counsels for an uncontested litigation (non-
contendere). This is achieved by an out of court understanding that the defendant should not
answer the complaint, from which the court may proceed to calendar the case for hearing
during which the defendant does not appear. Upon proof of service of notice to the
defendant, complainant can then move for reception of his or her evidence ex-parte which
will serve as basis for the court’s decision granting annulment.
E. Financing
Financing – the lawyer’s participation as a principal in business deals with clients where he
receives a share in the venture in return for cash or legal services.
F. Property Management
These tasks include the following:
1. Leasing
2. Eviction
3. Contract for repairs
4. Rent collection
5. Arranging for maintenance services and insurance
6. Payment of taxes and other expenses
7. Acting as executors and trustees
In a lease, some Lease contracts expressly provide that the moment the collection case
reaches the hands of the lawyer, the tenant becomes liable for the payment of attorney’s
fees. Since most of these tenants are afraid to face court litigation, they would rather
sacrifice paying the lawyer’s fees, than go to court with the risk of being evicted and incur
unnecessary expenses of litigation.
In rents, there is more than meets the eye in the demand letter signed by the lawyer
accompanied by threats of eviction. A demand letter giving the lessee a specific period
within which to comply at the risk of being dragged into an unlawful detainer suit for failure to
comply creates a feeling of insecurity and mental torture that compel the delinquent tenant to
comply and comply speedily.
Eviction -corollary to rent collection process is the remedy of eviction when all avenues for
settlement have collapsed.
A certain gray area in ejectment cases relates to the procedure of appeal. While the right to
appeal a final judgment of the court is granted by law to a losing party in an unlawful detainer
case, the same judgment is immediately executory unless the defendant has perfected an
appeal to the Regional Trial Court.
Under Rule 70 of the Rules of Court, the appeals not deemed perfected to stay the
execution of the judgment unless the defendant comply with the following requisites:

1. Posting of supersedeas bond in the amount to be fixed by the court conditioned to answer
for all losses and damages that plaintiff may suffer should the judgment be affirmed on
appeal:
2. Payment of periodic deposits to answer for the reasonable use and occupation of the
premises down to the final judgment by the appellate court and during the pendency of the
appeal.
A problem area however may arise from the delayed filing of supersedeas bond. There is
difficulty sometimes in securing the supersedeas bond from bonding companies, hence,
delay in the filing thereof often result in the immediate execution of the decision of the lower
court, unless the matter is elevated to the higher court purposely to determine whether there
is delay in the posting of supersedeas bond. This is a matter of technicality which lawyers
usually avail of, so that the center of controversy where the case is elevated will devolve
more on whether or not there is delay in the submission of the supersedeas bond rather than
the merits of the case.

G. Acting as Executor or Trustee

Having acquired sufficient knowledge and identification of the testator’s properties, the
executor who drafts the will is the logical person to act as trustee in the management of real
and personal properties of the decedent in his fiduciary capacity. Except with respect to
large estates management of which is better left to the care of banks that specialize in
trusteeship tasks.
H. Specialization
The term specialist is usually used to refer to what a worker does, to wit:
1. The task performs;
2. The goods or services he produces;
3. The person he works for or with;
4. The place where he works.
A specialist refers to someone who specializes or is highly competent at performing a
specified kind of work or practice.
A general practitioner is one who is willing to represent almost any kind of client in almost
any kind of matter if the client will pay the practitioners going rate.
By the test of acceptability, a general practitioner may also be a specialist providing that
remains willing to take a sufficiently broad range of matters and clients in addition to those in
his specialty.
Chapter 3 Clinical Legal Education Program

a. Interview of Client
b. Investigation
c. Preparation of Demand Letter
d. Negotiation
e. Filing of the complaint
f. Trial
g. Provisional Remedies
h. Memorandum
i. Appeals and Special Civil Actions
j. Comments and Briefs
A. Interview of Client

(1) Establish items of attorney-client relationship

-Best proof: written contract of lease of services or retainership contract.
The client should be made aware of his responsibilities towards the lawyer:

a. Lawyer is entitled to attorney’s fees.

b. Client cannot dismiss lawyer at will.
Lawyer may withdraw his services under any of ff. services:

a. When client pursues an illegal or immoral course of action in connection with the matter
he is handling
b. When the client insists that the lawyer pursue a conduct violative of these canons and
rules
c. When his inability to work with co-counsel will not promote the best interest of the client
d. When the mental or physical condition of the lawyer renders it difficult for him to carry out
the employment effectively
e. When the client deliberately fails to pay the fees for the services or fails to comply with
retainer agreement
f. Other similar cases
Lawyer’s authority to control trial is limited to matters of procedure.

(2) Determine Facts (narration by client)

(3) Be frank to client (ascertain truthness of narration thru warnings)
(4) Avoid frequent interruptions (unless absolutely necessary to prove a point)
(5) Conduct interview with language the witness speaks
(6) Reduce to writing narration of witnesses
(7) Interview all available witnesses
(8) Trial brief preparation (for more effective and systematic presentation of evidence)
(9) Determine client’s needs ands and priorities (scope should cover questions regarding
client’s priorities and needs that produce immediate results)
(10) Amicable settlements – still the best policy
(11) Determine the elements of potential claims, defenses, remedies and counterclaims
(12) Analysis and development of theory
-Research pertinent legal provisions applicable of both substantial and procedural aspect.
In development of theory, the one that could be proved successfully in court should be
adopted.
Theory adopted must be consistent with remedies and reliefs to be availed of under Rules
of Court.
B. Investigation

A. Ocular Inspection (a kind of mode of discovery, also known as view of an object)

Rules of Court, Rule 27, Section 1, Motion for production or inspection; order: Upon motion
of any party showing good cause therefor, the court in which an action is pending may:

1. order any party to produce and permit the inspection and copying or photographing, by or
on behalf of the moving party, of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, not privileged, which constitute or contain
evidence material to any matter involved in the action and which are in his possession,
custody or control, or
2. Order any party to permit entry upon designated land or other property in his possession
or control for the purpose of inspecting, measuring, surveying, or photographing the property
or any designated relevant object or operation thereon. The order shall specify the time,
place and manner of making the inspection and taking copies and photographs, and may
prescribe such terms and conditions as are just.
Resorted to in:

Suggested reference in research area:

a. SC decisions
b. Phil Reports
c. SCRA
d. Corpus Juris Secudum
e. Treatises and legal writings
f. Law textbooks
g. Rules of Court; Interim Rules of Court
h. NCC, RPC
i. Opinions of Justice Secretary
j. CA decisions
1. Actions for recovery of possession and ownership of real property
2. Annulment of title
3. Eminent domain
4. Ejectment proceedings
5. Land registration cases
6. Criminal prosecutions for usurpation of real rights over real property
7. Murder or homicide where place of incident is in issue
8. Theft or robbery in order to appraise the court whether or not the crime was committed in
an enclosed premises
9. Arson
10. Crimes of trespass to private property or dwelling
a. in order to determine the probability or improbability of the accused to commit trespass
considering the physical condition of the dwelling, or
b. whether or not the place intended for entrance is restricted to the public
11. Vehicular incidents
a. to determine the point of impact,
b. to find traces of tiremarks,
c. to determine the relative distance of one vehicle to another from the time of impact and
thereafter for the purpose of finding whether the erring vehicle was running at the speed
faster than that allowed by law, or
d. the distance where the body of the victim was thrown from the point of impact
B. Determine the evidence or the lack of it Before the drafting of any pleading or filing of a
criminal complaint, the lawyer should know as a result of ocular inspection whether he could
build a case from his findings and be able to sustain them in court
C. Extra-judicial confession (its probative value) For an extra-judicial confession to sustain a
judgment of conviction to sustain a judgment of conviction it must be corroborated by
evidence of corpus delicti. Tests of admissibility:
1. Whether or not it could pass the test of voluntariness and the requirements set down by
the Supreme Court in the case of People vs. Galit
2. Whether evidence of corpus delicti is sufficient to corroborate such confession
3. Whether or not sufficient warnings to the accused were made before the taking of his
confession of his right to counsel
D. Doctrines on extra-judicial confession
“… The right of a person under custodial interrogation to be informed of his right to remain
silent and to counsel implies a
correlative obligation on the part of the police investigator to explain and contemplate an
effective communication that results in an understanding of what is conveyed. Short of this,
there is a denial of the right, as it cannot truly be said that the accused has been “informed”
of his right.” (People vs. Newman)
“When the Constitution requires a person under investigation to be informed of his right to
remain silent and to counsel, it must be presumed to contemplate the transmission of
meaningful information rather than just the ceremonial and perfunctory recitation of an
abstract constitutional principle.” (People vs. Nicandro)
“…for waiver of right to counsel to be valid, it must be in writing and in the presence of
counsel. Extra-judicial confessions taken without the assistance of counsel is inadmissible in
evidence.” (People vs. Albofera)
“…while the right to counsel may be waived, such waiver must be done voluntarily,
knowingly and intelligently, and made in the presence of the accused’s lawyer. If the records
do not show that the accused was assisted by counsel in making his waiver, this defect
nullifies and renders inadmissible in evidence his confession.” (People vs. Nolasco)
E. Basic steps in taking valid extra-judicial confession
1. At the time of the arrest, the arresting officer shall inform the person arrested of the
reason for the arrest;
2. He must be shown the warrant of arrest, if any;
3. He shall be informed of his constitutional right to remain silent and to counsel;
4. He must be informed that any statement that he might make could be used against him;
5. The person arrested shall have the right and be given sufficient opportunity to
communicate with his lawyer of his own choice, a relative, or anyone he chooses by the
most expedient means, by telephone if possible, or by letter or messenger;
6. If such person arrested cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the investigating officer;
7. The extrajudicial confession shall then be reduced to writing and signed by the person
arrested, detained or under custodial investigation in the presence of his own counsel or one
provided by the investigating officer;
8. In case the person arrested, detained or under custodial investigation has no counsel or in
the absence of one provided by the investigating officer, no custodial investigation shall be
conducted and the suspected person can only be detained in accordance with Article 125 of
the Revised Penal Code;
9. Should the person arrested, detained or under custodial investigation waive his right to
counsel, such waiver which is in writing shall not be valid unless made with the assistance of
counsel;
10. Should the person arrested, detained or under custodial investigation choose to sign the
extra-judicial confession upon a valid waiver after its contents have been explained to him
and understood by him in the language of his own tongue, he may sign the same in the
presence of any of his parents, elder brothers and sisters, his spouse, the municipal mayor,
the municipal judge, district supervisor, or priest r minister of the gospel as chosen by him,
otherwise, such extra-judicial confession shall be inadmissible as evidence in any
proceeding;
11. Any waiver by a person arrested or detained under the provisions of Article 125 of the
Revised Penal Code, or under custodial investigation, shall be in writing and signed by such
person in the presence of his counsel; otherwise the waiver shall be null and void and of no
effect (RA 7438); and
12. After the person arrested or detained or under custodial investigation has signed the
extrajudicial confession in the presence of his counsel or upon a valid waiver, the same shall
be attested and signed by the investigating officer and any of the parents, or elder brother or
sister, or his spouse or municipal mayor, municipal judge, district supervisor, or priest or
minister of the gospel chosen by him
F. Police Report, Medical Report, Autopsy Report, etc.
G. Interview of witnesses
The end in view would be to evaluate whether you have a sufficient cause of action or
defense, or a case to build from the gathered evidence, the primary source of which is the
complainant or plaintiff himself and his witnesses.
H. Plans and Photographs Photographs may be presented as evidence to prove the
following:
1. To show the scene of the crime (picture need not show the complete premises)
sometimes with the body of the victim still at the scene;
2. To show the victim of an assault or homicide;
3. To show the identity of the persons alive or dead, including the defendant, the victim or his
remains;
4. To show wound or other physical injuries, or that the child or animal has been ill-treated or
not properly fed;
5. To show the fruits of the crime, contraband and the weapons used;
6. To supply facsimiles of public records;
7. To illustrate handwriting testimony and finger-print testimony;
8. To rebut testimony of the other side.
C. Preparation of Demand

Time to prepare a letter of demand: When (1) all material evidence has been gathered after
an extensive interview of your client and witnesses, and (2) having conductive objective
evaluation of such evidence, and (3) you are convinced that there exists a valid cause of
action.

Advantage of settlement: Once extrajudicial settlement is forged, the compromise agreement

shall be subject to the approval of the court and violation thereof can be a ground for
contempt proceedings against the rebellious litigant.

Reminders:

The letter of demand should be couched in the language of a lawyer with a brief reminder in
the opening statement of defendant’s violation of plaintiff’s right.
The violation may be premised on defendant’s failure to live up to his presentation under a
contract, or to observe with his obligation created by law.
If there is any amount involved, then the demand letter should specify the proper amount of
which defendant is liable with interest payable up to the date of actual payment, otherwise,
defendant should be charged for payment of attorney’s fees and the costs of the litigation
should the matter eventually reach the court.
Your letter should be closed with a reasonable time allowance to comply within a period of
not less than 5 to 10 days from receipt.
1. Characteristics
-conciliatory in nature participated in by two or more parties usually with the assistance of
their respective counsels
-a key to judicial action that precedes a compromise agreement usually perfected during pre-
trial conferences developing into a guideline for the court’s final judgment
-informal talks start between counsels of both or multiple interested parties-clients, or even
by the parties themselves, developing into formal conferences in the presence of the parties
or on prior consultation with them
Factors influencing negotiation:
a. Fear of litigation

To all potential litigants, the nightmare of court litigation possible of wrecking their family
lives and future of their children is simply uncontrollable and real.

Sample:

Place and Date

Mrs. Consuelo de Bobo Navotas, Metro Manila

Madam:

My client Jose Purgatorio came to me complaining about your failure to make good your
promissory note, despite repeated phone reminders, in the sum of P50,000.00, on or before
April 30, 1994 (photo copy of which is hereto attached).

While the court action appears to be convenient under the circumstances, however, in order
to preserve our cordial relations, and to avoid unnecessary expenses of litigation, which will
entail payment of attorney’s fees and costs of the suit, we have decided to give you this last
chance to honor your commitment.

In view thereof, please reach us thru our telephone number which you already have, if you
are ready with the amount, or simply send payment by mail or any mode of payment most
expedient for you within 10 days from receipt hereof. Otherwise, much to our regret, we shall
be constrained to bring this matter to court for the protection of our client’s rights and
interests.

D. Negotiation

b. Fear of incurring unnecessary expenses of litigation

Almost every potential litigant is hounded by the prospect of incurring unnecessary expenses
of litigation. Many litigants who before being dragged into litigation were wealthy and
financially stable, have become destitute and mentally unbalanced after a harrowing in court
battles.

c.Fear of suffering mental torture, anxiety, social humiliation, character assassination and
family ruin

When the pressure amounts everyday and the clients is being attacked by nervous tick and
gripped by the feeling of insecurity, the urge to negotiate becomes irresistible.

d. Desire on the part of the lawyers to rake fat incentives without undergoing tedious court
hearings
It is the desire of every practicing lawyer to rake handsome fees that is the source of his
inspiration to serve the interest of his client. However, there is a limit to the right of the
lawyer to charge professional fee that is due to him, and that it must not be unconscionable
and champertous. And provided further, that it does not violate the provisions of Article 1491,
New Civil Code. Moreover, it is the desire of every lawyer that if he could realize much the
same if not more lucre thru negotiation, than undergoing a tedious court trial, he would prefer
to pursue the former option.

e. Impelling force exerted by interested parties to gain unusual advantage from out of court
settlement

There are persons who not being lawyers, act as brokers or agents who are interested in
realizing fat commissions. They are the aggressive breed of unscrupulous money makers
and mercenary workers who volunteer their services to lawyers and prospective litigants by
making proposals to the adverse party in the hope of receiving part of the bargain.

f. Psychological pressure induced by court warnings and active participation

There is no forceful factor more effective in influencing negotiation than the warnings made
by the court and its active participation in bringing the parties to the negotiation table.

When the case has been placed at the trial calendar, the first task of the court is to call the
parties to a pre-trial conference.

Under the Rules of Court, pre-trial is mandatory in the Regional Trial Court.

The judge is likened to a conductor in a concert who leads the orchestra with his baton, and
a master of ceremonies in a program or stage show. As floor manager who controls the
show and tells the parties to start and stop talking.

4. Advance opinion of Presiding Judge not pre-judgment

Justice Antonio Barredo – In a pre-trial, the Judge has to prejudge in order to lead and
influence the parties to come to an agreement. Pre-judgment means the Judge forms his
own opinion before he reads the pleadings. But when the Judge can tell from the pleadings
what the law is, that is advanced judgment.

Do not stop negotiating unless and until you are of the honest belief that all avenues and
your talent as an effective negotiator have been applied but failed.

2. Presiding judge as effective negotiator

Judges play an active role of a chief negotiator and master of ceremonies by shuttling from
one party to another inside the courtroom and supplying feedbacks from one party to
another regarding the terms and conditions they would propose, and going out of his way
convincing the parties that this or that term will redound to their mutual welfare and benefit.
One cardinal virtue considered so vital to an effective negotiator is a reputation for integrity
and sincerity. For once suspicion of self-interest on the part of the negotiator-Judge creeps
into the head of the parties, no amount of hard bargaining and power of persuasion can
sway their stubborn minds.

3. Pre-Trial negotiation techniques

The role of the Judge as a leader in the negotiation process becomes more dominant at the
pre-trial stage.

5. Preliminary Conference pursuant to Rule 48 precedes pre-trial

A.M. No. 03-1-09-SC

RE: GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF

COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY
MEASURES.

The "use of pre-trial and the deposition-discovery measures are undeniably important and
vital components of case management in trial courts." To abbreviate court proceedings,
ensure prompt disposition of cases and decongest court dockets, and to further implement
the pretrial guidelines laid down in Administrative Circular No. 3-99 dated January 15, 1999
and except as otherwise specifically provided for in other special rules, the following
guidelines are issued for the observance and guidance of trail judges and clerks of court.

I. PRE-TRIAL
A. Civil Cases
1. Within one day from receipt of the complaint:
1.1. Summons shall be prepared and shall contain a reminder to defendant to observe
restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in
the Answer, in conformity with IBP-OCA Memorandum on Policy Guidelines dated March 12,
2002. A copy of the summons is hereto attached as Annex "A;" and
1.2. The court shall issue an order requiring the parties to avail of interrogatories to parties
under Rule 25 and request for admission by adverse party under Rule 26 or at their
discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28
within 5 days from the filing of the answer. A copy of the order shall be served upon the
defendant together with the summons and upon the plaintiff.
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, the substance of their testimonies, and the
approximate number of hours that will be required by the parties for the presentation of their
respective witnesses.
A copy of the Notice of Pre-trial Conference is hereto attached as Annex "B."

The rule on the contents of the pre-trial brief must strictly be complied with.

The parties are bound by the representations and statements in their respective pre-trial
briefs.
Mandatory mediation

Within 5 days from date of filing of the reply, the plaintiff must promptly move ex parte that
the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given
period, the Branch COC shall issue a notice of pre-trial.

2. The parties shall submit, at least 3 days before the pre-trial, pre-trial briefs containing the
following:
a. A statement of their willingness to enter into an amicable settlement indicating the desired
terms thereof or to submit the case to any of the alternative modes of dispute resolution;
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. (No evidence
shall be allowed to be presented and offered during the trial in support of a party's evidence-
in-chief other than those that had been earlier identified and pre-marked during the pre-trial,
except if allowed by the court for good cause shown);
3. At the start of the pre-trial conference, the judge shall immediately refer the parties and/or
their counsel if authorized by their clients to the PMC mediation unit for purposes of
mediation if available. If mediation fails, the judge will schedule the continuance of the
pretrial conference. Before the continuance, the Judge may refer the case to the Branch
COC for a preliminary conference to assist the parties in reaching a settlement, to mark the
documents or exhibits to be presented by the parties and copies thereof to be attached to
the records after comparison and to consider such other matters as may aid in its prompt
disposition.
During the preliminary conference, the Branch COC shall also ascertain from the parties the
undisputed facts and admissions on the genuineness and due execution of the documents
marked as exhibits. The proceedings during .the preliminary conference shall be recorded in
the "Minutes of Preliminary Conference" to be signed by both parties and/or counsel, the
form of which is hereto attached as Annex. "C".

The minutes of preliminary conference and 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 conference, the judge must study all the pleadings
of the case, and determine the issues thereof and the respective positions of the parties
thereon to enable him to intelligently steer the parties toward a possible amicable settlement
of the case, or, at the very least, to help reduce and limit the issues. The judge should not
allow the termination of pretrial simply because of the manifestation of the parties that they
cannot settle the case. He should expose the parties to the advantages of pre-trial. He must
also be mindful that there are other important aspects of the pre-trial that ought to be taken
up to expedite the disposition of the case.
The Judge with all tact, patience, impartiality and with due regard to the rights of the parties
shall endeavor to persuade them to arrive at a settlement of the dispute. The court shall
initially ask the parties and their lawyers if an amicable settlement of the case is possible. If
not, the judge may confer with the parties with the opposing counsel to consider the
following:
a. Given the evidence of the plaintiff presented in his pre-trial brief to support his claim, what
manner of compromise is considered acceptable to the defendant at the present stage?
b. Given the evidence of the defendant described in his pre-trial brief to support his defense,
what manner of compromise is considered acceptable to the plaintiff at the present stage?
1. If not successful, the court shall confer with the party and his counsel separately.
2. If the manner of compromise is not acceptable, the judge shall confer with the parties
without their counsel for the same purpose of settlement.
5. If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings and
confirm markings of exhibits or substituted photocopies and admissions on the genuineness
and due execution of documents;
b. Inquire if there are cases arising out of the same facts pending before other courts and
order its consolidation if warranted;
c. Inquire if the pleadings are in order. If not, order the amendments if necessary;
d. Inquire if interlocutory issues are involved and resolve the same;
e. Consider the adding or dropping of parties;
f. Scrutinize every single allegation of the complaint, answer and other pleadings and
attachments thereto and the contents of documents and all other evidence identified and
pre-marked during pre-trial in determining further admissions of facts and documents. To
obtain admissions, the Court shall ask the parties to submit the depositions taken under Rule
23, the answers to written interrogatories under Rule 25 and the answers to request for
admissions by the adverse party under Rule 26. It may also require the production of
documents or things requested by a party under Rule 27 and the results of the physical and
mental examination of persons under Rule 28;
g. Define and simplify the factual and legal issues arising from the pleadings. Uncontroverted
issues and frivolous claims or defenses should be eliminated. For each factual issue, the
parties/counsel shall state all the evidence to support their positions thereon. For each legal
issue, parties/counsel shall state the applicable law and jurisprudence supporting their
respective positions thereon. If only legal issues are presented, the judge shall require the
parties to submit their respective memoranda and the court can proceed to render judgment;
h. Determine the propriety of rendering a summary judgment dismissing the case based on
the disclosures made at the pre-trial or a judgment based on the pleadings, evidence
identified and admissions made during pre-trial;
i. Ask parties to agree on the specific trial dates for continuous trial in accordance
with Circular No. 1-89 dated January 19, 1989; adhere to the case flow chart determined by
the court, which shall contain the different stages of the proceedings up to the promulgation
of the decision and use the time frame for each stage in setting the trial dates. The One-Day
Examination of Witness Rule, that is, a witness has to be fully examined in 1 day only, shall
be strictly adhered to subject to the courts' discretion during trial on whether or not to extend
the direct and/or cross-examination for justifiable reasons. On the last hearing day allotted
for each party, he is required to make his formal offer of evidence after the presentation of
his last witness and the opposing party is required to immediately interpose his objection
thereto. Thereafter, the Judge shall make the ruling on the offer of evidence in open court.
However the judge has the discretion to allow the offer of evidence in writing in conformity
with Section 35, Rule 132;
j. Determine the most important witnesses to be heard and limit the number of witnesses
(Most Important Witness Rule). The facts to be proven by each witness and the approximate
number of hours per witness shall be fixed;
k. At his discretion, order the parties to use the affidavits of witnesses as direct testimonies
subject to the right to object to inadmissible portions thereof and to the right of cross-
examination by the other party. The affidavits shall be based on personal knowledge, shall
set forth facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. The affidavits shall be in question
and answer form, and shall comply with the rules on admissibility of evidence;
l. Require the parties and/or counsel to submit to the Branch COC the names, addresses
and contact numbers of the witnesses to be summoned by subpoena;
m. Order the delegation of the reception of evidence to the Branch COC under Rule 30; and
n. Refer the case to a trial by commissioner under Rule 32.
2. During the pre-trial, the judge shall be the one to ask questions on issues raised therein
and all questions or comments by counsel or parties must be directed to the judge to avoid
hostilities between the parties.
6. The trial judge shall schedule the pretrial in the afternoon sessions and set as many pre-
trial conferences as may be necessary.
7. All proceedings during the pre-trial shall be recorded. The minutes of each pre-trial
conference shall contain matters taken up therein more particularly admissions of facts and
exhibits and shall be signed by the parties and their counsel.
8. The judge shall issue the required Pre-Trial Order within 10 days after the termination of
the pre-trial. Said Order shall bind the parties, limit the trial to matters not disposed of and
control the course of the action during the trial. A sample Pre-Trial Order is hereto attached
as Annex "D."
However, the Court may opt to dictate the Pre-Trial Order in open court in the presence of
the parties and their counsel and with the use of a computer, shall have the same
immediately finalized and printed. Once finished, the parties and/or their counsel shall sign
the same to manifest their conformity thereto.

9. The court shall endeavor to make the parties agree to an equitable compromise or
settlement at any stage of the proceedings before rendition of judgment.
B. Criminal Cases
1. Before arraignment, the Court shall issue an order directing the public prosecutor to
submit the record of the preliminary investigation to the Branch COC for the latter to attach
the same to the record of the criminal case.
Where the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom 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 the
raffle. The pre-trial of his case shall be held within ten days after arraignment unless a
shorter period is provided for by law.

2. After the arraignment, the court shall forthwith set the pre-trial conference within thirty
days from the date of arraignment, and issue an order: (a) requiring the private offended
party to appear thereat for purposes of plea-bargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence;
(b) referring the case to the Branch COC, if warranted, for a preliminary conference to be set
at least three days prior to the pre-trial to mark the documents or exhibits to be presented by
the parties and copies thereof to be attached to the records after comparison and to
consider other matters as may aid in its prompt disposition; and (c) informing the parties that
no evidence shall be allowed to be presented and offered during the trial other than those
identified and marked during the pre-trial except when allowed by the court for good cause
shown. A copy of the order is hereto attached as Annex "E". In mediatable cases, the judge
shall refer the parties and their counsel to the PMC unit for purposes of mediation if
available.
3. During the preliminary conference, the Branch COC shall assist the parties in reaching a
settlement of the civil aspect of the case, mark the documents to be presented as exhibits
and copies thereof attached to the records after comparison, ascertain from the parties the
undisputed facts and admissions on the genuineness and due execution of documents
marked as exhibits and consider such other matters as may aid in the prompt disposition of
the case. The proceedings during the preliminary conference shall be recorded in the
Minutes of Preliminary Conference to be signed by both parties and counsel. (Please see
Annex "B")
The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.

4. Before the pre-trial conference the judge must study the allegations of the information, the
statements in the affidavits of witnesses and other documentary evidence which form part of
the record of the preliminary investigation.
5. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of
2002, the trial judge shall consider plea-bargaining arrangements. Where the prosecution
and the offended party agree to the plea offered by the accused, the court shall:
1. Issue an order which contains the plea bargaining arrived at;
2. Proceed to receive evidence on the civil aspect of the case; and
3. Render and promulgate judgment of conviction, including the civil liability or damages duly
established by the evidence.
6. When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings, confirm
markings of exhibits or substituted photocopies and admissions on the genuineness and due
execution of documents and list object and testimonial evidence;
b. Scrutinize every allegation of the information and the statements in the affidavits and other
documents which form part of the record of the preliminary investigation and other
documents identified and marked as exhibits in determining farther admissions of facts,
documents and in particular as to the following:
1. The identity of the accused;
2. court's territorial jurisdiction relative to the offense/s charged;
3. qualification of expert witness/es;
4. amount of damages;
5. genuineness and due execution of documents;
6. the cause of death or injury, in proper cases;
7. adoption of any evidence presented during the preliminary investigation;
8. disclosure of defenses of alibi, insanity, self-defense, exercise of public authority and
justifying or exempting circumstances; and
9. such other matters that would limit the facts in issue.
Annex "C" -Minutes of Preliminary Conference
Annex "D" -Pre-trial Order in Civil Cases
Annex "E" -Notice of Pre-trial Conference in Criminal Cases
c. Define factual and legal issues;
6. S.C. Circular No. 1-89, dated January 19, 1989
d. Ask parties to agree on the specific trial dates and adhere to the flow chart determined by
the court which shall contain the time frames for the different stages of the proceeding up to
promulgation of decision and use the time frame for each stage in setting the trial dates;
e. Require the parties to submit to the Branch COC the names, addresses and contact
numbers of witnesses that need to be summoned by subpoena; and
f. Consider modification of order of trial if the accused admits the charge but interposes a
lawful defense.
7. During the pre-trial, the judge shall be the one to ask questions on issues raised therein
and all questions must be directed to him to avoid hostilities between parties.
8. All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel; otherwise, they cannot be used
against the accused. The agreements covering the matters referred to in Section 1 of Rule
118 shall be approved by the court.
9. All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties and/or their counsels.
10.The trial judge shall issue a Pre-trial Order within 10 days after the termination of the pre-
trial setting forth the actions taken during the pre-trial conference, the facts stipulated, the
admissions made, evidence marked, the number of witnesses to be presented and the
schedule of trial. Said Order shall bind the parties, limit the trial to matters not disposed of
and control the course the action during the trial.
Pre-Trial elements:

a.The parties shall submit at least 3 days before the conference pre-trial briefs containing the
following:
1. Brief statement of the parties' respective claims and defenses;
2. The number of witnesses to be presented;
3. An abstract of the testimonies of witnesses to be presented by the parties, and the
approximate number of hours that will be required by them for the presentation of their
respective evidence;
4. Copies of all documents intended to be presented;
5. Admissions;
6. Applicable laws and jurisprudence;
7. The parties' respective statement of the issues; and
8. The available trial dates of counsel for complete evidence presentation, which must be
within a period of three months from the first day of trial.
Annex "A" -Summons
Annex "B" -Notice of Pre-trial Conference in Civil Cases
b. At the pre-trial conference:
1. The judge with all tact and patience shall endeavor to persuade the parties to arrive at a
settlement of the dispute, or agree to stipulation of facts including the authenticity of
documents to be submitted during the trial.
2. The judge shall then define the factual issues arising from the pleadings and endeavor to
narrow them down to material issues.
3. If only legal issues are presented, the judge shall require the parties to submit their
respective memoranda on the issues, and shall render judgment thereon.
4. If a trial is to be conducted, the judge shall fix the necessary trial dates to complete
presentation of evidence by both parties within 90 days from initial hearing.
c. The pre-trial order shall include the following:
1. A statement of the nature of the case;
2. The stipulations or admissions of the parties including testimonial and documentary
evidence;
3. The issues involved: (1) factual and (2) legal;
4. Number of witnesses;
5. The dates of trial.
d. This is without prejudice to a finding that either judgment on the pleadings or summary
judgment is appropriate.
e. Failure to file pre-trial briefs may be given the same effect as the failure to appear at the
pretrial.
E. Filing of a Complaint

-Filed when all the avenues for negotiation and amicable settlement have failed
Jurisdiction:

-The power of the Court to decide a matter in controversy and presupposes the existence of
a duly constituted court with control over the subject matter and the parties
-Authority of the court to hear and determine a cause or the right to act in a case
3. Jurisdiction over the RES-obtained by seizure of the property under the legal process of
the court, whereby it is held to abide by such order as the court makes
4. TERRITORIAL Jurisdiction-the power of the court to exercise jurisdiction to adjudicate
cases committed or occurred within the territory defined by law or SC.
a. Civil(Venue)-can be subject to the agreement of the parties
b. Criminal-the court must have jurisdiction over
i. The subject matter of the offense
ii. The territory wherein one of the essential ingredients of the offense took place
iii. The parties
c. Exceptions:
i. Meritorious cases where health condition of the accused poses to be a great
consideration-venue may be fixed by SC
ii. Continuing Offense-where any of the essential ingredients of the crime took place. Courts
of those places exercise concurrent Jurisdiction
1. Except when case falls within jurisdiction of SANDIGANBAYAN
iii. Libel Cases
Kinds:
1. Jurisdiction over the SUBJECT MATTER-the power to hear and determine cases of
general class to which the proceeding in question belongs
a. The power to deal with the general subject involved in the action
b. Acquired or conferred by law
c. Objections based on lack of jurisdiction cannot be waived
2. Jurisdiction over the PERSON-the power of the court or Quasi-judicial or administrative
body to subject the person of the defendant and to bind him of all judgments and orders of
the said court or body that it may render with the force of law.
a. Acquired by either voluntary appearance/ submission to the court/body or by coercive
power exerted over the person of the defendant (warrant)
b.
1. Where the libelous material is printed and 1st published
2. Or Where any of the offended party actually resides
3. Or if public officer-where he holds office
4. Jurisdiction vs. Exercise of Jurisdiction

J-the authority to decide a cause

EJ-the decision of all other question arising in the case

Jurisdiction of MTC-(CAMP)

1. EOJ over Civil Actions and Probate proceedings, testate or intestate where the value of
the personal property or estate does not exceed 200,000 or 400,000 if metro manila
2. EOJ over Admiralty and Maritime cases where claim does not exceed 200,000
** The claim is exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses and cost
Cases under Summary Procedure

Civil Cases

1. All Cases of Forcible entry and Unlawful Detainer regardless of amount

2. All other Civil cases except Probate where the total amount of claim does not exceed
10,000
Criminal Cases

1. Violation of Traffic laws and regulations

2. Violation of rental law
3. Violation of municipal and city ordinances
4. All other criminal cases where the penalty of imprisonment does not exceed 6 months or a
fine not exceeding 1,000
5. Damage to property through criminal negligence if the impossible fine does not exceed
10,000
Jurisdiction of RTC ( IRAP-JON)

1. Civil Action Incapable of pecuniary estimation

a. Criteria: if the basic issue is something other than the right to recover a sum of money,
where the money is purely incidental or a consequence of the primary relief sought for
2. Civil Action which involve the title to or possession of Real property or any interest there in
where the assessed value of the property exceeds 20,000 or if in Metro Manila 50,000
3. Actions in Admiralty and Maritime Jurisdiction where the demand exceeds 200,000 or If in
metro manila 400,000
4. Matters of Probate where the gross value of estate exceeds 200,00 or if MM 400,000
5. Cases Not within the exclusive jurisdiction of any court, tribunal or body exercising judicial
or quasi-judicial functions
6. Civil actions and special proceedings falling within the EOJ of Juvenile and Domestic
Relations Court
7. Other cases in which the demand, exclusive of interest exceeds 200,000 or if MM 400,000
Example of actions Incapable of Pecuniary Estimation

1. Partition of Land
2. Expropriation or eminent domain
3. Specific performance
4. Annulment of Judgment
5. Recession of Contract
Examples of Pleadings that must be verified

** must be accompanied by a certification of Non-Forum Shopping pursuant to SC Circular

04-94
1. Petition for Certiorari, prohibition, mandamus, quo warranto, injunction, habeas corpus
2. Petition for change of name
3. Petition for dissolution of corporation
4. Complaint with prayer of attachment
5. Petition for custody of minor
6. Petition for registration of Articles of Incorporation with SEC
7. Complaint for annulment of title with TRO and damages
Pleadings-is a written allegation of the parties of their respective claims and defenses
submitted to the court for trial and judgment

1. Preparation of Pleading (examples)

a. Complaint for forcible entry and unlawful detainer
b. Answer to complaint of usury
c. Complaint for annulment of marriage
d. Petition for adoption
2. Prove only Matters alleged in the pleading
a. Petitioner cannot present evidence on the matter not alleges in the pleading
3. Causes of Action and defenses
a. Cause of Action-is the act or omission by which a party violates a right of another
b. Relief-the award sought for
c. Defenses-all material allegations should be specifically denied and stating the reason of
denial by stating the truth
i. Failure to make specific denial will entitle the plaintiff to move for judgment on the pleading
ii. General Denial
1. If on a material fact-constitute admission
2. If immaterial-allowed provided made in good faith
4. Motions – an application made to a court or judge for the purpose of obtaining rule or
order directing some act to be done in favor of the applicant
a. Ex. Motion to dismiss, motion for bill of particulars, motion for intervention, motion to
quash, motion for attachment
b. May be filed during any stage of the proceeding as the need arises
c. Must be served by the applicant to all parties concerned at least 3 days before the date of
hearing
i. However the court may hear a motion on a shorter period
d. A motion which does not state the time and place for the hearing of the same, does not
comply with the requirement of the rules and IS NO MOTION AT ALL.
5. Methods of Discovery-it is a method used to discover :
a. what evidence the adverse party is going to present at the trial
b. who are the witnesses
c. the details about their testimonies
d. where they live and what they are going to testify about
Purpose-so that before the trial, you already know the evidence of the other party

Kinds:

1. Deposition
2. Request for admission
3. Physical examination of persons and things
4. Production of documents or things
5. Physical and mental examination of persons who are about to depart from the country
Q: Is filing a motion to dismiss for lack of cause of action a GOOD practice?

A: NO, an order to dismiss partakes of a sinperjuico order and merely grants the dismissal of
the complaint and does not state a valid cause of action. But this does not prevent the
plaintiff from amending his complaint or filing a new complaint containing a valid cause of
action.

It is better to file and answer and use all the grounds for a motion as an affirmative defense
because in this case the court will hear the case and decide upon the merit thus constitute
res judicata

F.Trial

Accusatorial Method -trial procedure in our jurisdiction

1. Direct Examination/Examination in chief

-Prosecution is the first to conduct (usually the public prosecutor) and then counsel of the
accused will conduct cross-examination of witness followed by a redirect examination by the
prosecution on matters covered by the cross examination
-Private prosecutor must act with public prosecutor's permission and still subject to latter's
control and supervision; The former's authority may be withdrawn if incompetent and unable
to protect the interest of the State
English system -Fiscal acts as lawyer of the state before inferior courts and RTC; Solicitor
General for SC and CA
GR: Leading questions (not misleading) not allowed in DE, only in Cross Examinations
Exceptions:

1. Witness is a child of tender age

2. Difficulty in getting answers from a witness who is:
1. Ignorant or feeble-minded
2. Deaf-mute
3. Illiterate or dull
4. Stupid
2. Cross Examination
-English rule which is followed in our jurisdiction, allows questions to a witness on matters
not covered by the DE provided, the purpose is to elicit answers that are material and
relevant to the issue
Why? To test a witness' credibility, show bias, motive, interest, lack of memory, religious
following or political color
-Purpose: to impeach the witness regarding self-contradictory statements made by him
3. Cross Examination as a double-edged sword
--if unwisely, and aimlessly utilized; must be utilized for a purpose, else, may rouse
sympathy from the court (widow with respect to the deceased husband's claim) or attest the
witness' credibility
-if a direct testimony of a witness does not hurt your cause, simply say "No cross!"
-Never cross examine an expert in his own field UNLESS you are conversant about the
subject or in case of flagrant error
4. Re-direct and re-cross examination RDE -conducted by plaintiff or prosecution for the
purpose of clarifying matters touched during CE
RCE -follows an RDE; conducted by the adverse party but confined on matters testified
during RDE

*RDE and RCE are subject to the discretion of the court; conducted only when there is a
new witness or new matters have cropped up during the course of RDE and RCE.
Recall of a witness:

-Interest of justice
-After leave of court
-Testimony is limited to new matters not touched during DE or CE due to oversight nor
excusable negligence
-not for the purpose of eliciting forgotten evidence
5. Proof of Facts
-He who alleges must prove
-Better practice to have an arranged pretrial brief
-Documentary evidence and other exhibits placed in a separate envelope, folder, with proper
markings, title and identification number of case, name of parties, and name of court
6. Expert Testimony
-separate trial brief for expert testimonies, witnesses, subject and order of presentation
Examples:
a.Medico-legal expert on autopsy report on crimes against persons
b. Ballistician of NBI on firearm used in the crime, ammunitions and cartridges recovered
c.Handwriting expert on questioned documents
d. Fingerprinting expert on finger prints and foot prints from the crime scene
e.Other experts on forensic and laboratory examinations (hair strands, urine or blood for
alcohol/drug)
7. Objections
-All questions in the course of court hearing (civil, criminal or administrative), must be in the
form of a question and answer method, NOT in an uninterrupted manner or narrative form
EXCEPT:
a. Witness is counsel of a party
b. When allowed by the court to describe a transaction from the beginning as to the time and
place of the action
-Opposing counsel may object to the narration of a witness who states matters that are
irrelevant, immaterial or incompetent to the issue and ask to arrest such narration and strike
off the witness' answer from the record
-Other grounds for objection on questions:
Questions on DE
a. Must not be leading or misleading
b. Must not call for a conclusion except if witness is an expert
c. Must not be incompetent
d. Must not be irrelevant or immaterial
e. Must not be argumentative
f. Must not call for hearsay evidence except for dying declaration or part of res gestae
g. Must not call for a self-incriminating testimony
h. Must not be vague or uncertain
i. Must not assume facts not proved
j. Must not be improper
k. Must be responsive to the question asked, else, answer must be stricken from the record
l. Must not call for an illegal answer
m. Must not be repetitious
n. Must have a basis or foundation except for preliminary matters that the question calls for a
privatized communication
o. Must not violate the best evidence rule
p. Must not be volative of the parole evidence rule
q. That extrajudicial confession must conform to requirements in People v. Galit
r. Question relates to bad moral character of accused except on rebuttal
s. Question calls for an answer which violates the Statute of Frauds
t. Question is harassing the witness
u. Question tends to subject the witness to indignity or is unfair to a woman or xoncerns her
morality and reputation
v. Question is insulting
w. Question had already been answered
On cross examination, the following questions may be objected to:

a. That it is argumentative
b. That it has already been answered
c. That it calls for a conclusion
d. That the question is insulting
e. Question tends to subject the witness to indignity or is unfair to a woman or xoncerns her
morality and reputation
f. Question is harassing the witness
g. Question is misleading
h. That it calls for a hearsay evidence
i. That it is immaterial, irrelevant, or calls for an incompetent answer
j. That it is vague
k. It calls for an illegal answer
l. It is self-incriminating except that:
1. Privilege applies only to a natural person, extraction of testimonial responses
2. Applies only to a penal act of the witness himself not to a third person
3. Applies only to a fact penalized by law of the forum not by a foreign state
4. Applies not merely when the fact is itself a penal act, but also when fact would incriminate
witness
dealing with (e.g. sharpness of a tool or its edge)

-If exhibits cannot be marked, tags are usually attached to them for identification
8. Exceptions to self-incriminating questions
a. Does not extend to civil actions
b. Only extends to inculpatory documents and agents in whose possession the accused has
entrusted the documents
c. Does not extend to an act of identification or comparison
d. Accused cannot refuse:
1. To appear at the scene of the crime
2. To put on a blouse to see if it fits him or her
3. Place a handkerchief over his face
4. Stand up and remove his glasses
5. To permit the court to see scars in his body
6. Exhibit his hands
7. Reveal tattoo marks
8. Discharge prohibited drug from his mouth
9. Submit to a face shaving and hair cut
10. Submit to a test for alcohol examination
11. Remove article that denies opportunity for examination like a hat or article hiding his face
12. Submit to physical examination
13. Exhibit himself in a manner commonly seen by public
14. Allow taking of then portion of substance emitting from his body to determine if suffering
from venereal disease
15. Place his feet on bloody footprints
16. Pregnancy test
-Determination of this question is for the trial judge
-It is not enough that the witness says that the answer will incriminate him
-Danger must appear reasonable and real to the court
9. Quantum of Proof
-Proof beyond reasonable doubt for criminal prosecution
-Does not mean such a degree as to exclude possibility of error; Moral certainty or that
degree of proof which produces conviction in an unprejudiced mind is only required
10. Method of Introducing Evidence
-prove that it is substantially in the same condition as it was at the time you are
G. PROVISIONAL REMEDIES (SRRRAP)

1. Attachment

-ancillary remedy which can be availed of only upon existence of a principal action
-cannot be invoked independently or issued separately of the principal action
-intended to secure the outcome of the trial for the satisfaction of a pecuniary obligation
contracted by the defendant or believed to have been contracted by him by virtue of a civil
obligation or a crime
-directed to all movable properties of the defendant or so much thereof as to satisfy plaintiff’s
claim
-may be filed at the commencement of the action or anytime thereafter before entry of
judgment
How enforced?

-By a writ issued by the Sheriff on order of the court

Movables properties – by attaching and safely keeping Real property – filing a copy of the
writ with the Register of Deeds in the province where property is located

How dissolved?

a. Giving security or filing a counter bond with the Clerk of Court or Judge in an amount
equal to the value of the property to be determined by the Judge at a proper hearing
b. Showing that order of attachment was improperly or irregularly issued
2. Preliminary Injunction

-An order granted at any stage of an action prior to the final judgment requiring a person to
refrain from a particular act OR require the performance of a particular act in which case it
shall be known as preliminary mandatory injunction Classifications of injunction:
1. Prohibitory injunction/Mandatory injunction
2. a. Preliminary injunction – sole object is to preserve status quo until merits of the case
have been determined b. Final or Permanent injunction – embodied in the final judgment on
the merits; no longer a provisional remedy but forms part of the final relief
-Is it necessary that preliminary injunction should first be issued before granting a permanent
injunction is granted? NO
-Preliminary injunction is NOT a proper remedy to stop infrastructure projects, natural
resource development projects of the government, public utility from transport of goods and
commodities, stevedoring and arrastre contracts (Sec. 1, P.D. 1818)
Grounds:

1. That plaintiff is entitled to the relief demanded AND the whole or part of such relief
consists in restraining the commission or continuance of the acts complained of, or in the
performance of an act, either for a limited period or perpetually
2. That the commission or continuance of some act during the litigation or the
nonperformance thereof would probably work injustice to the plaintiff
3. That the defendant is doing, threatens or is about to do some act probably in violation of
the plaintiff’s rights respecting the subject of the action and tending to render the judgment
therefrom ineffectual
Requirements:

1. Verified complaint
2. Applicant’s bond
3. Defendant must be heard (PI cannot be issued ex-parte, there must always be a hearing)
-General averment of irreparable injury is insufficient
-It must specifically describe in detail the facts of how or why the supposed injury would be
irreparable
General Rule: No injunction to restrain criminal prosecution

Why?

Accused has adequate remedies (by establishing as a defense that he did not commit the
act charged, or statute is void, or in case of conviction, appeal)
Public interest requires that criminal acts be immediately investigated and prosecuted for the
protection of society
Exception: (SAMPU)
1. Prevent the use of the Strong arm of the law in an oppressive and vindictive manner
2. For orderly Administration of justice
3. Avoid Multiplicity of actions
4. Afford adequate Protection to constitutional rights
5. Where the statute relied upon is Unconstitutional or was declared void
3. Restraining Order

-Order of the court to maintain status quo until the application for preliminary injunction shall
have been determined
-Generally granted without notice to the opposite party
-Limited lifetime of 20 days within which the court must act on the application of the writ of
preliminary injunction
-The TRO is lifted after 20 days without need of a judicial order and this period is non-
extendible (B.P. Blg. 224)
-No second TRO shall be issued after the first one had lost its efficacy
-If application for preliminary injunction is denied, TRO is automatically vacated
-Application for TRO is usually made as part of the motion for preliminary injunction
4. Receivership

-A receiver is an indifferent person appointed by the court who acts on behalf of all party
litigants, not in favor of one party alone, to preserve the property subject of the litigation, to
hold possession and control of the property, and to exercise such power and authority as
may be granted by the court and dispose of such property in a manner directed by the court
Requirements:

-Petition filed under oath not by mere motion

-Supported by affidavits
-Petitioner must show that he has interest/lien upon the property subject of litigation
►Application may be denied if opposing party files a bond executed to the applicant for the
payment of damages which the applicant may suffer by reason of the appointment of such
receiver
Powers and duties of a receiver:

(BriT & ReCoCo, DO TraP)

1. To bring and defend actions in his own name

2. To take and keep possession of the property in controversy
3. To receive rents
4. To collect debts due to himself as receiver, or to the fund, property, estate, person or
corporation of which he is a receiver
5. To compound for and compromise the same
6. To make transfers
7. To pay outstanding debts
8. To divide the money and other property among persons legally entitled
9. To do such other acts as the court may authorize
-Funds in the hands of the receiver may be invested at interest only by order of the court and
prior consent of all the parties
5. Replevin

-delivery by order of the court, of a personal property by the defendant to the plaintiff to
protect the latter’s right of possession to said property and prevent the defendant from
damaging, destroying or disposing of the same during the pendency of the suit
-plaintiff must give a bond to assure the return of the property or payment of damages to the
defendant should plaintiff’s action to recover possession of the property fails
Plaintiff must show in the complaint:

a. he is the owner or the property or entitled to the possession thereof

b. property is wrongfully detained by defendant
c. property is not taken for a tax assessment or fine pursuant to law, or seized under an
execution or attachment against the plaintiff, or if so seized, that it is exempt
d. actual value of the property
e. plaintiff must execute a bond which is double the value of the property to guarantee
payment to the defendant should the plaintiff be not entitled to the possession of the
property
*Writ of replevin may be issued ex-parte daw (sa civpro namin, hindi pwede)
Requisites so that property may be returned to the defendant: (defendant’s remedy) Within 5
days from the date the sheriff takes possession of the property, defendant must

a. File a counter bond with the clerk of court or judge double the value of the property AND
b. Furnish the plaintiff a copy of the undertaking
6. Support pendente lite
-A relief that may be asked pending litigation like annulment or legal separation
-Application may be made in the original complaint or main action but may likewise be made
in a separate petition
Example of cases where available:

1. Wife is forced to leave marital home due to ill-treatment of husband

2. Serious disagreement between husband and wife where wife is forced to leave the
conjugal home by means of violence *in these cases, wife cannot be compelled to cohabit,
hence, she is entitled to reasonable maintenance allowance
Available defenses:

1. Non-existence of marriage
2. Adultery
3. Lack of good reason to live separately with husband
4. Wife is more affluent than husband
5. Husband is unable to give support
6. Wife is convicted of an attempt against life of the husband/descendants/ascendant
7. Wife accused the husband of a crime punishable with imprisonment of 6 yrs. or more and
accusation is found to be false
H. Memorandum

-Generally not indispensable in trial practice -In appealed cases from the decision of the
inferior courts, the RTC may require a written memorandum and decide a case based on the
records and the memorandum
1. Advantage of filing a written memorandum

-can persuade the court in deciding the case whether in favor or against a party litigant,
whenever the judge has no clear grasp of the issues involved in the applicable law and its
interpretation.
2. Guidelines in drafting a good memorandum

1. Collate all the evidence duly presented during the trial and admitted by the court
2. Keep reminded about your theory of the case and the causes of action alleged in your
pleading
3. See to it that all your arguments are directed towards your prayer for relief
4. Your line of argument must be attuned to the evidence adduced during the trial and the
allegations in the pleading
5. Make a summary of all the issues involved and raised in your pleading
6. Discuss all the issues in their logical sequence making reference to the testimonies of
each witness and other evidence and exhibits according to their markings
7. The contents of the memorandum should include:
a. Statement of the case
b. Statement of the facts
c. Issues involved
d. Arguments
e. Applicable legal provisions
f. Applicable jurisprudence whether American or Philippine cases
g. Conclusion
h. Prayer for relief
I. Appeals and Special Civil Actions

1. Modes of Appeal in criminal case

-Rule 122, ROC and Sec 16-25, SC Interim rules and guidelines
-ONLY FINAL ORDERS/JUDGMENTS ARE SUBJECT TO APPEAL and do not include
interlocutory orders
a. How appeal in a criminal case is taken

-MTC/MCTC/MeTC -->RTC-->CA-->SC
-File a notice of appeal
-Serve a copy to the adverse party prosecutor, or Sol. gen, or the accused
-All other appeals shall be by petition for review
-When death penalty is imposed, automatic review by SC
(Throwback: Di ko sure but from Crimpro, the first appeal is always a matter of right. So you
file a notice of appeal. Notice lang kasi right mo yun. The subsequent appeals, discretion na
ng Court, except of course kung death penalty. So you file a "petition for review")

b. When appeal shall be taken

-15 days from promulgation or notice of judgment

-Judgment of acquittal not appealable -double jeopardy
-An accused who has escaped or refuses to surrender (i.e jumps bail) cannot appeal ---act
of refusal to submit to the jurisdiction is inconsistent with prosecution of appeal
-w/n 5 days from appeal, Clerk of Court transmits record -Court MAY require the parties to
submit Memoranda -Court decides the case on the basis of the entire records
2. Appeal in civil cases

-File a notice of appeal w/n the 15-day reglementary period

-Serve a copy to the adverse party
-Record is transmitted to the appellate court
-Contents of notice of appeal:
-parties,
-judgment/order or part thereof appealed from,
-court to which the appeal was taken
-Notice of appeal on questions of law only is considered a waiver of questions of fact
-In special proceedings and multiple appeals, record on appeal is required -so the period is
longer -30 days--perfected upon approval of the court (w/n 10 days)
-Habeas corpus cases -appeal period is 48 hrs. from notice
3. Certiorari, mandamus, prohibition

a. Certiorari

Writ issued by the superior court and directed to a court, tribunal, board or officer of inferior
jurisdiction and exercising judicial or quasi-judicial functions that has acted without or in
excess of its jurisdiction or with grave abuse of discretion and there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary course of law, commanding the latter to
certify and return to the former the record in the particular case for review and rectification of
its interlocutory order or judgment.

-How: file a verified petition; allege facts with certainty, pray for annulment or modification of
judgment; attach a certified copy of the order or judgment sought to be nullified and other
relevant documents
-Where the proper remedy is appeal, the action for certiorari shall not be entertained
-It is an extraordinary remedy and cannot be invoked except on a clear showing of an
arbitrary and oppressive exercise of jurisdiction or a grave abuse thereof in a manner that is
whimsical, capricious and wanton, amounting to lack of jurisdiction.
-GENERAL RULE: Motion for Reconsideration first. If denied, then certiorari -EXCEPTIONS:
1. Where the order is a patent nullity as where the court a quo had no jurisdiction at all
2. Where the questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the
lower court
3. Where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interest of the Government or the petitioner
4. Where under the circumstances a motion for reconsideration would be useless
5. Where the petitioner was deprived of due process and there is extreme urgency of relief
6. Where in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable
7. Where the proceedings in the lower court are a nullity for lack of due process
8. Where the issue raised is one purely in law or when public interest is involved
matters not within its cognizance, or exceeding its jurisdiction in matters of which it has
cognizance.
-can be availed of only when there is no appeal, nor any plain, speedy and adequate remedy
in the ordinary course of law
-subject to the DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
J. Comments and Briefs

1. COMMENTS

Every now and then in the course of court proceedings, the court will issue an order to a
party to submit his comment on a pending incident, like for instance, on a motion to dismiss
for lack of jurisdiction or on a petition of the accused person to avail of the provisions of the
probation law.
The counsel’s mettle is tested on the strength of his argument in support of his comment and
the validity and propriety of the grounds he has advanced for the grant or denial of the
petition.
Comments should be served to accused’s counsel and should contain every and all
applicable authorities in support of the grounds set forth therein.
Comment partakes of the nature of the party’s stand on the matter raised by the petition, the
strength or weakness of which may spell success or failure of his cause.
b. Mandamus

It is a command issuing from a court of law of competent jurisdiction, in the name of the state
or sovereign directed to some inferior court, tribunal or board, or to some corporation or
persons, requiring the performance of a particular duty therein specified, which duty results
from the official station of the party to whom the writ is directed, or from operation of law.

-will not lie to compel the performance of a contract

-subject to the DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
-will lie to compel the discharge of a discretionary duty itself but not to control the discretion
to be exercised--> can require action only but not specific action
c. Prohibition

A writ issued by a court of law intended to prevent a tribunal possessing judicial or quasi-
judicial powers from exercising jurisdiction over

2. BRIEFS

Not required to perfect an appeal. But where the law requires that a brief should be filed
within a reglementary period, although the same is not mandatory to perfect an appeal,
nevertheless, failure to submit the required briefs and/or memorandum may cause
disastrous to the defeating party.
3. JUDGMENT OR DECISION WRITING

Last step that terminates the adjudication process by a civil court.

Section 14, Article VIII provides “No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based. No
petition for review or motion for reconsideration of a decision of the court shall be refused
due course or denied without starting the legal basis therefor.”
No particular form is required by the Constitution in decision making or writing, except, it
must clearly state the law and the facts on which it is based.
test concerning his competence and qualification as trier of facts and sifter of evidence.
a. In implementing this Constitutional provision, Section 1, Rule 36 of the Rules of Court
provides “A judgment or final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and distinctly the facts and the
law on which it is based, signed by him, and filed with the clerk of court.”
Oral open court decision prohibited –

The Constitution and the Rules of Court definitely proscribes the rendition of a decision orally
in open court, much less a minute decision that merely states the dispositive portion without
findings of facts and the applicable law.
Decisions must be in writing and must be made with clarity and in well-reasoned
presentation that is understandable not only to the person reading the decision, but most
importantly to the parties litigants themselves.
Decisions must state the following:

a. nature of the case

b. issue or issues involved
c. findings of the fact
d. law applicable to the case
e. Dispositive ruling – see to it that this must be declared in no vague terms the rights and
obligations of the parties.
Note: Barte reproduced here the substantial portions of the lecture of Justice Reynato Puno
delivered during one of the Seminar-Orientation workshop conducted by the SC for the
newly appointed RTC-Judges, viz:

“When the Constitution speaks of facts it means material facts or opposed to immaterial
facts. Consequently, it is not enough for a judge to recite the testimonies of witnesses. He
must synthesize them.”

Guidelines:
1. Use words in their liberal sense
Two common sources of imprecision in legal writing:
a. Personification – the giving of human qualities to abstractions or objects, for example,
“coldblooded decision”
b. Metononymy – the substitution of an attributive or suggestive word for the identifying
“stage worker”
In Legal Writing, these imprecision may introduce ambiguity.
2. Omit Archaic Legalisms

Archaic Legalisms – words and phrases, such as

“If there is anything that ought to be clear in the Decision, it must be the dispositive portion
for it is the part that is expected” – Justice Puno
The General Rule is that, where there is a conflict between the dispositive part and the
opinion, the FORMER must prevail over the LATTER on the theory that the dispositive
portion is the final order while the opinion is merely a statement ordering nothing.
b. Doctrine on findings of facts –
As to findings of fact, the trial Judge need only make a brief, definite, and pertinent findings
and conclusions upon controverted matters.
The ultimate test as to the sufficiency of trial court’s findings of facts is whether they are
comprehensive enough and pertinent to the issue raised to provide a basis for decision.
Decision writing is by far considered the apex of legal writing and exposes the judge to the
litmus
a. Hereinafter
b. Heretofore
c. Aforesaid
d. Forthwith
e. Herein
f. Hereby
g. For purposes of
h. Notwithstanding anything to the contrary herein so made
i. By these presents
j. Said
3. Use the Same Words to Refer to the Same Thing; Use different Words to Refer to
Different Things

Never attempt to improve style by introducing synonyms or other word variations that will
create confusion or ambiguity.
4. Use Simple, Familiar Words

When you have a choice between a short, familiar word, such as “call” and a longer, more
elaborate word, such as “communicate,” choose the shorter simple one. Simple words are
understood more quickly, they require less reading and thinking time.
A plain style is usually the best style. If you wish to use figurative language, do so where it
will not interfere with communication of substance.
Simpler Words

Elaborate counterparts

After

Subsequent to

Before

Prior to

Begin, Carry out

Implement, Effectuate
Happen

Eventuate

Inform

Apprise

Make

Render

Send

Transmit

Think

Deem

Think, see, regard

Envisage

Clichés come readily to mind during writing. Thus a standard part of your revision should be
to remove them.
10.Avoid Jargon From Other Fields

11.Lastly, let us watch out for redundancy in legal writing

Examples:

5. Use Concrete Rather than Abstract Words

Concrete words such as “split decision” are easier to understand than abstractions such as
“judicial dichotomy”.
Some common abstractions are simple words that can often be eliminated without loss of
meaning, for example: type, kind, manner, state, area, matter, factor, system and nature.
Example:

The central thrust of plaintiff’s legal position is dependent on matters having to do with three
decisions of the SC.

Revised:

Plaintiff’s argument for summary judgment depends on three SC decisions.

Basic fundamental
telling revelation

Basic starting point

terrible tragedy

False misrepresentation

true facts

Final result

unexpected surprise

If and when

unless and until

Sufficient enough

save and except

c. Consequences where there are no findings of facts

The decision will be considered as UNCONSTITUTIONAL.
d. Findings of Facts
We have two basic types of narration:
a. Reportorial Type – easiest to handle, nothing more than a report of what happened during
the trial. Usually consists in a summation of what the witnesses testified to.
6. Use Words that are Consistent in Tone

All words have connotation (overtones of meaning) as well as denotation (explicit meaning).
Since connotation contributes to tone, the word choices in a particular piece of legal writing
should have compatible connotations.
7. Avoid Equivocations

To protect ourselves or to reflect uncertainty, use either equivocal or qualifying words that
undermines their meaning.
b. Synthesis type – the judge summarizes the factual theory of the plaintiff or prosecution, as
the case may be, and after that the version of the defense. After summarizing both versions,
the judge will state which version he takes as true and correct and then renders the
adjudication.
In addition, the Semi-reportorial type – the Judge summarizes the version that he accepts,
and then reports on the version that he rejects.
Typical words and phrases used in this way are:

it seems to indicate
if practicable
it would seem
it may well be
it might be said that
8. Use unqualified Nouns, Adjectives and Verbs

Many writers add modifiers to intensify or buttress poorly chosen nouns, adjectives, and
verbs. The right word ordinarily needs no bolstering.
9. Use Few Literary Devices

There is a fourth type which is a sub-classification of the synthesized decision. In this last
type, the court just summarizes the version that it accepts and adopts, without at all narrating
or explaining what the other version is.
e. Readymade decision set aside
f. Memorandum Decisions
Sec. 40 of BP Blg. 29 reads: Every decision or final resolution of a court in appealed cases
shall clearly and distinctly state the findings of fact 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 those set forth in the decision, order or resolution appealed from.
Thus, Memorandum Decision to be valid cannot incorporate the findings of fact and the
conclusions of law of the lower court only by remote reference, which is to say that the
challenged decision is not easily and immediately available to the person reading the
memorandum decision.
4. TECHNIQUE IN DECISION MAKING Fact finding technique:

In deciding cases, the judge should not delude themselves in the thought that they are
tasked to discover the ultimate truth. It is impossible and that should not be a thorn on your
throat.
Always Remember. In civil cases, the court decides in favor of the party who is able to
establish his cause of action by mere preponderance of evidence. In criminal cases, the
courts are directed to acquit the accused unless his guilt is shown beyond reasonable doubt.
a. Factors to consider Rule 33 tells us the factors to consider in determining the burden of
proof, which are as follows:
1. All the facts and circumstances of the case
2. The witnesses’ manner of testifying
3. Their intelligence
4. Their means and opportunity of knowing the facts to which they are testifying
5. The probability or improbability of their testimony
6. Their interest or want of interest
7. Their personal credibility so far as the same may legitimately appear upon the trial; and
8. The number of witnesses, though the preponderance is not necessarily with the greatest
number
1. The uncontroverted facts must be separated
2. In interpreting the testimony of a witness, his whole testimony must be considered, i.e. his
direct cross examination, redirect and recross.
3. Self-contradictions by a witness usually happen. In assessing self-contradictions, the
judge should determine whether they are due to innocent mistakes or due to deliberate
falsehood.
4. Contradictions between witnesses also commonly occur, thus, the judge should try to
reconcile them.
5. Contradictions between testimony on the witness stand and prior affidavits are also
common. If they are irreconcilable, affidavits should normally prevail.
6. Testimony that is inherently improbable must be rejected.
7. Demeanor of witness is an important factor to be considered in weighing his testimony.
c. Gestures and Postures as Non-Verbal Clues In addition to clothing and appearance, the
witness’ gestures and movements while testifying are also important factors in the court’s
appreciation of his credibility.
1. The upper face (the reflexive area) It consists of the following:
i. Forehead – indicates nervousness when perspiring
ii. Eyebrows – express concern and worry when moving downward
iii. Eyelids – it disclose an alert mind when wide open and reveal sarcastic attitude when
winking
iv. Nostril – this quiver in anticipation, flares with eagerness, or widen in fear or anger.
v. Lips – located in the non-reflexive area, or the lower face which conveys softness and
warmth when full, and strength when thin.
2. The chest
b. Weighing the evidence
Our rules on evidence do not assign specific truth value to the different kinds of admissible
evidence.
In law, we do not have a table of logarithm for our different kinds of evidence but through
ages, the court developed techniques which can be availed of in weighing evidence, to wit:
When this area is covered by the witness’ arms folded across, such posture signals the
witness’ unwillingness to communicate; while an uncovered chest indicates openness and
readiness to communicate.
3. The posture
This can also affect the witness’ credibility, if he leans forward the examining counsel; this
may indicate his willingness to tell what he believes is the truth; or his eagerness to testify,
for party calling him as witness, to matters that may be truthful. On the other hand, if he
leans backwards, this may signal his hesitance in giving testimony either because what he is
declaring is a fabrication or because he simply does not believe in the cause of the party
calling him.
4. The leg’s movement Constant movement legs indicate tenseness. Crossed legs reflect
confidence and openness to communicate. Foot scuffing however, is indicative of insecurity
and nervousness.
d. Techniques in Interpreting the Law
In most cases, the law is clear and there ought to be no problem in its application to the facts
of a given case. In some instances, however, there will be a need to interpret the law. This is
where you separate the skilled from the unskilled judges.
First step: state the purpose of the offer, the purpose for which the evidence is presented.
Next, the same purpose must be restated during the stage of formal offer of evidence.
The Constitution and RoC, make it mandatory for the judge to dispose of the case which is
deemed submitted for decision, not exceeding the period of 90 days counted from the date
the parties are notified in open court that the case is deemed submitted for decision.
We are often deluded into believing that court litigations are won or lost by an effective
cross-examination. However, in reality especially in the Philippines, a case is won or lost
depending on how well or badly you conduct the direct examination.
 Much of the success in conducting an effective direct examination depends upon your skill
in interviewing first your client and client’s witnesses.
The various techniques on how to interpret a statute, even a constitution, are well discussed
by books on statutory construction. These techniques are universal in character.
CHAPTER 4: PRACTICE COURT REVISITED (PRACTICUM)
A. BASIC ROLE OF A TRIAL LAWYER

Basic Function of a lawyer: to see to it that he wins his case, not by fair or foul means, but to
convince the judge of the validity of client’s cause of action, that client is right and that he
deserves the favorable judgment and reliefs praying the court to grant.
First task as a trial lawyer: present all the evidence that is necessary
A trial lawyer must know when to present particular evidence, how to conduct, how to ask
questions, the right timing and the right order. All of these are Direct Examination.
Cross Examination: The usual method of exposing the weakness of opponent’s case.
B. OFFER OF EVIDENCE-OR PRESENTATION OF EVIDENCE

The offer of evidence starts with direct examination of a witness, otherwise called
examination in chief.
1. INTERVIEW OF CLIENT AND WITNESSES (Guidelines according to Atty. Diokno)

Do not commit the mistake of interviewing a client only a week before trial.
It is wrong for us to look at a problem solely from client’s point of view. After placing yourself
in the client’s shoes, you must get out and look at it from the way a judge might look at it.
Approach adverse witnesses as early as possible or witnesses who tell you that they don’t
know anything.
Get the statements preferably in writing but if not, you can always use a tape recorder in the
course of your interview.
One of the oldest techniques there are for establishing the authenticity and voluntariness of
a statement, is to prepare a statement and make deliberate mistakes, so that he cannot later
claim that he did not read the statement.
Use the same questions, same words, same order of questioning as you will on direct
examination in court. Surprise your adversary’s witness but not your own.
2. CARDINAL RULES ON DIRECT EXAMINATION

Make your questions brief, simple, follow the same order that you prepared and when it
comes to identifying documents, do it in the most natural way.
Don’t make a big production out of our exhibits unless they are really vital exhibits. Try to
present them just as part of the story so that your witness will feel at ease.
Express yourself clearly, briefly and cogently.
Acts of Lasciviousness or Attempted Rape to Unjust Vexation
The plea-bargaining process starts with an overture of negotiation and hard bargaining in a
person to person basis made by the parties thru their counsels highlighted by making
proposals and counter-proposals.

C. GRASSROOTS PLEA-BARGAINING
 In both criminal and civil cases, the use of effective negotiation techniques as a useful
instrument in litigation, is still the name of the game without which a compromise agreement
or plea-bargaining is difficult to achieve.
In any event success or failure in plea-bargaining still depends largely on lawyer’s ability to
put his idea across the bargaining table, the use of his hunches, his inborn talent, his skill,
patience and above all his power of persuasion and determination in getting what he wants.
Extra-legal but not illegal or immoral weapons and a lot of public relations are also
indispensable.
1. SPECIFIC CASES

Some of these charges which may be the subject of plea-bargaining the beneficial results of
which are attained by pleading guilty to a lesser offense:

Murder to Homicide
Frustrated Murder to Attempted Murder or Attempted Homicide or Serious Physical Injuries
(SPI)
Frustrated Homicide to Attempted Homicide or Serious or Less SPI
SPI to Less SPI
Less SPI to Slight Physical Injuries
Robbery with Violence or Intimidation or Force Upon Things to Simple Theft
Violation of PD 532 to Simple Theft
Qualified Trespass to Dwelling to Simple Trespass
Rape to Acts of Lasciviousness
Qualified Seduction to Simple Seduction
Attempted Homicide to Direct Assault
Direct Assault to Simple Resistance or Disobedience to Person in Authority or his Agent
Death Resulting from Tumultuous Affray to Serious or Less Serious Physical Injuries
Robbery to Grave Coercion
Forcible Abduction to Consented Abduction
Grave Oral Defamation to Light Oral Defamation
3. CONSENT OF FISCAL AND OFFENDED PARTY REQUIRED IN PLEA OF GUILTY TO
LESSER OFFENSE
The opportune time considered most ideal to start the plea-bargaining negotiation, is during
the wide gap between the receipt of notice of the arraignment from the court and the date of
arraignment.
In pleas of guilty to a lesser offense, the consent of both the public prosecutor and the
offended party is required.
WHEN CONSENT OF THE FISCAL NOT REQUIRED WHEN TO INVOKE PLEA OF
INCOMPLETE SELF-DEFENSE

Where the accused had decided to plead guilty to the crime as charged in the Information or
Complaint, the prior consent of the Fiscal and the offended party is not required.
No particular form of agreement is prescribed to prove that a meeting of the minds had been
reached in order to enforce the plea-bargaining agreement.
Before the accused is allowed to enter a plea of guilty to a lesser offense, this must be
preceded by a formal motion from accused’s counsel withdrawing his former plea.
Thereafter, the accused shall be rearranged.
4. WHEN TO INVOKE PLEA OF INCOMPLETE SELF-DEFENSE
At least two elements of Self-Defense must be proved:

a. unlawful aggression did not come from the accused

b. that he is not guilty of sufficient provocation
c. that there is reasonable necessity of the means employed to repel or prevent the
aggression
CHAPTER 5: BASIC TECHNIQUES IN BRIEF WRITING
BRIEF – is a written document, a condensed statement or epitome of some larger
document, or of a series of papers, facts and circumstances or propositions.
It is a written statement prepared by the counsel arguing a cases in court; contains a
summary of the facts of the case, the pertinent laws, and the argument of how the law
applies to the facts supporting counsel’s position.
Contents: SSSAC
Statement of issues presented for review
Statement of the case
Statement of facts
An argument [with authorities]
A conclusion stating the precise relief sought
FUNCTION OF BRIEFS

To articulate the pleader’s cause and call the attention of the appellate court regarding the
merits of a litigation, the issue involved, and the grounds why the case should be adjudicated
in favor of appellant or appellee.
To educate the opposing part/counsel with a view of pressuring him to accept the
unassailability of the grounds relied upon and the extents of oral arguments necessary to aid
the appellate court in a just adjudication of the controversy.
To help the appellate court lessen the burden in the examination of the records and
expedite the speedy disposition of the case.
To enable the reviewing court to have a quick grasp of the rights of the parties and in tipping
the scales of justice to the one in whose favor the law leans.
Note: Every argument must be supported by a citation of appropriate authorities. The weight
of the authorities cited for an effective brief, is not determined by quantity but the quality of
the citations.

GR: Only issues or matters that have been raised in the court below involving questions of
fact or law, or mixed questions of fact and law, or purely questions of law only, resecting
appeals from judgments, final orders or resolutions of quasi-judicial bodies or agencies can
be raised on appeal, regardless of whether or not the appellant has filed a motion for new
trial or reconsideration.

Reason: It would be offensive to the basic rules of fair and justice to allow appellant to raise
those questions for the first time on appeal but which have not been passed upon by the trial
court.

Principal rationale: Judicial economy

(1) If the losing side can obtain an appellate reversal because of error not objected to, the
parties and public are put to the expense of retrial that could have been avoided had an
objection been made;
(2) If an issue had been raised in the trial court, it could have been resolved there, and the
parties and public would be spared the expense of an appeal.
A BRIEF MUST BE CONCISE –

Make the brief as concise as possible without sacrificing the clarity and quality.
Brevity should not be equated with the number of pages in the brief.
Brevity should be a flexible standard of conciseness in relation to the complexity of the
case.
Does not necessarily means containing few short sentences or paragraphs, for everything
germane should be included.
Brevity does not mean filing a “sloppy” appeal.
People vs. Lucero – The court castigate the Solicitor General for lack of even the basic
requirement of subject index, nor it does not tolerate the carelessness and haphazard
preparation of a kind of brief containing arguments with “fractured syntax.”
WHAT MATTERS SHOULD BE RAISED ON APPEAL?

“Section 15. Questions that may be raised on appeal. – Whether or not the appellant has
filed a motion for new trial in the court below, he may include in his assignment of errors any
question of law or fact that has been raised in the court below and which is within the issues
framed by the parties.” (Rule 44)

SUMMATION OF ESSENTIAL ELEMENTS OF A STANDARD APPEAL BRIEF –

(1)Subject index –

Should contain a digest of the Statement of the Case describing very briefly and clearly
appellant’s cause of action, and the relief’s sought for, a brief Statement of Facts, and each
and every argument with appropriate proper references,
Should contain the arguments by assignment of errors, specifically pointing to the findings
and conclusions of the lower court that are erroneous, and contrary to the law or evidence.
Should also contain a table of cases, textbooks and statutes relied upon as reference in
support of the arguments and findings contrary to those of the lower court.
With respect to appellee’s brief, should contain digest of the arguments and page
references, textbooks and statutes cited with reference to the page where they were cited.
Under the heading, “Counterstatement of the Case” and “Counterstatement of Facts,” the
appellee shall point out such inaccuracies and inefficiencies that are found in the appellant’s
statement of facts.
STATEMENT OF FACTS –

Shall recite in a narrative form the nature of the action.

The narrative shall include all incidents that transpired in the court below, the facts and
circumstances constituting the pleader’s cause of action, or the rights of the appellant that
were violated that led to the filing of the case in the court below, a restatement by reference
in the record of the appealed rulings and orders of the court of origin, the nature of the
judgment appealed from in favor of the appellee.
 Appellee’s counterstatement of the case – shall state appellee’s own version of facts and
circumstances that are contrary to or different from the Appellant’s brief, the allegations in
the pleadings and such other documentary evidence in support of appellee’s cause, without
sacrificing honesty and accuracy.
Appellee’s brief – shall contain a “Counterstatement of Facts” intended to belie or straighten
the inaccuracies, inefficiencies, mistake, whatever innocuous or intentional distortions on
misstatement of facts, found in appellant’s brief that are contrary to or at variance with the
record.
ARGUMENT –

Appellant’s brief – shall contain Assignment of Errors in their chronological order, which
while assailing and taking exceptions of the trial court’s finding and conclusions, ought to
observe ethical standards of decency and morality in his criticism of the lower court’s
decision.
There should be courtesy and temperate language and style should be the overriding
factors. Never allow scandalous matters to creep into the pages of the brief.
Appellee’s brief – shall articulate his arguments in refutation of each assignment of error
discussed in appellant’s brief, and the reason why the judgment or final order appealed from
should be affirmed. The most effective refutation is selective reproduction and quotation of
trial court’s findings and conclusions supported by the uncontroverted evidence or record
and even by the admission of the appellant.
REFRAIN FROM USING DISREPECTFUL LANGUAGE –

The use of intemperate, disrespectful and excessive language in briefs is proscribed of

every writer.
It is unbecoming and unfortunate of a lawyer who is supposed to be schooled in sobriety
and sound reasoning, to allow himself to be carried by personal prejudices and
emotionalism. A court battle should not reduce lawyers into small children quarreling over a
toy in the streets.
STATEMENT OF FACTS –

Appellant’s brief -Shall contain an abbreviated version of the ultimate facts and events in
such a way that the appellate court will be made to feel that, by deciding in favor of the brief
writer’s client, justice will be done.
Honesty and candor – ultimate criterion
CITATION OF AUTHORITIES –

Before citing a case as authority for a certain proposition, it should be checked or

counterchecked whether it has not been overruled by recent case or doctrines, or it must be
distinguished from the one relied upon by the adverse party.
In the absence of any domestic jurisprudence to be cited as authority in the appealed case,
resort may be made to foreign authorities. However, this has merely persuasive effect and
cannot be considered doctrine in this jurisdiction under the principle of stare decisis.
Our judicial system recognizes the principle of stare decisis or adherence to precedents and
not to unsettle things which are settled.
Doctrine of stare decisis – when a point of law has been settled by a decision, it forms
precedent which is not afterwards to be departed from, and, while it should ordinarily be
strictly adhered to, there are occasions where departure is rendered necessary to vindicate
plain, obvious principles of law and remedy continued injustice.
RELIEF –

Under the heading “Relief” appellant’s brief should contain a prayer specifying the reliefs,
judgments or awards that the appellant or appellee seeks the court to render.
A prayer for relief is the lifeblood of every brief or pleading, because although it is not
considered part of the cause of action, nevertheless it is part of the complaint, and such the
pleader is entitled to as much relief as the facts alleged constituting the cause of action may
warrant.
It is therefore the duty of the brief-writer to make the prayer for relief correspond to the
allegations constituting the cause of action, and to avoid any variance of the relief prayed for
from the allegations in the pleading, for it is from prayer for relief that the court should
necessarily base the awards in the dispositive portion of the its decision.
CHAPTER 6:
Hierarchy in Philippine Courts

SC decisions are final and form part of the law of the land.

A. SUPREME COURT

Sec. 5(1), Art. VIII 1987 Consti. SC is the last arbiter of all questions of law
Chief Justice and 14 Associate Justices
En banc, divisions of 3, 5, or 7
Decision:
o Must be made by majority of members who actually took part in the deliberations.
o Must be with concurrence of at least 3 of such members
o If not obtained, it shall be decided en banc
o Decision shall be reached in consultation before writing of opinion by ponente. Certification
of this effect signed by Chief Justice shall be issued and attached to the records of the case
and served upon the parties.
o Any member who took no part, or dissented, or abstained from a decision or resolution
must state the reasons thereof. (Sec. 13, Art. VIII Consti)
No law increasing the appellate jurisdiction of the SC can be passed without its advice and
consent.
B. COURT OF APPEALS

Statutory court – created by statute (EO 33 July 28, 1986)

Presiding Justice and 68 Associate Justices thru 23 divisions of 3 members each.
Sits en banc – if exercising administrative, ceremonial or other non-adjucatory functions
Same qualifications with SC Justices
Philippine Judicial System – hierarchal organization of courts of justice Basis:

1. Article VIII of 1987 Constitution

2. Judiciary Act of 1948, superseded by BP 129 (Judiciary Organization Act of 1980)
QUORUM:
A. En banc – majority of members to constitute quorum
B. Division – three members to constitute quorum
 Unanimous vote of the 3 members of a division to pronounce final
resolution (must be in consultation before writing)
If no unanimous vote – Raffle Committee of the Court to designate 2 additional members
forming a special division of 5. The decision of majority of such will pronounce the final
resolution.
Trials or hearings in CA must be continuous and completed within 3 months unless
extended by Chief Justice of SC.
Has original and appellate jurisdiction. (see book p. 231 to 233)
E. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL
CIRCUIT TRIAL COURTS

Same procedures as RTC except:

a. Where a particular provision expressly or impliedly applies only to either of said courts
b. In civil cases governed by Summary Procedure
C. SANDIGANBAYAN

Created by PD1606 (Dec. 10, 1978) as special court

To try and decide criminal and civil cases involving graft and corrupt practices by public
officials and employees.
RA 7975 amended PD 1606 classifying Sandiganbayan as a regular court.
Divisions of 3 Justices each
Decisions and final orders here are appealable to SC by petition for review on certiorari for
pure questions of law in accordance with Rule 45.
If penalty imposed here is reclusion perpetua or life imprisonment, or death appealable to
SC by notice of appeal
If death – automatic review by SC
D. REGIONAL TRIAL COURTS

Each branch within the region, is presided by a single judge

Multiple Sala Court – there is an Executive Judge to discharge administrative functions over
all the branches and the MTCs sitting within the territorial area for 2 yrs., unless reappointed.
Single Sala Courts – Presiding Judge acts as Executive Judge exercising administrative
functions over the MTCs sitting within the territorial jurisdiction of the area.
Exercises exclusive original over Civil actions and Criminal actions (see pp. 234 – 235)
F. FAMILY COURTS

Created by RA 8369 (Family Courts Act of 1997)

There shall be a family court for every city and province in the Phil.
If the city is the capital of the province, it shall be established in the municipality which has
the highest population. (sec. 3 RA 8369)
Qualifications: same as RTC Judges
G. SHARI’A COURTS

Code of Muslim Personal Laws of the Philippines (PD 1083)

Two categories:
a. Shari ’a district courts (equivalent to RTC)
b. Shari ‘a Circuit Courts (equivalent to MTCs)
H. COURT OF TAX APPEALS
Created by RA 1125
A court of special appellate jurisdiction
Presiding Judge and 2 Associate Justices
Qualifications same as CIR or SC
Exclusive appellate jurisdiction to review on appeal:
a. Decisions of CIR and others under NIRC
b. Decisions of Commissioner of Customs
Alternative Dispute Resolution System

Means 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 in which a
neutral third party participates to assist in the resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.
Arbitration

o the civil status of persons;

o the validity of a marriage;
o any ground for legal separation;
o the jurisdiction of courts;
o future legitime;
o criminal liability;
o those which by law cannot be compromised
ALTERNATIVE DISPUTE RESOLUTION

Arbitration
Mediation
Conciliation
Early Neutral Evaluation
Mini-trial
And any combination
means a voluntary dispute resolution process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules promulgated pursuant to this Act,
resolve a dispute by rendering an award
Mediation

Means a voluntary process in which a mediator, selected by the disputing parties, facilitates
communication and negotiation, and assist the parties in reaching a voluntary agreement
regarding a dispute.
Forms:

1. Compulsory Arbitration-enforced through statutory provision such as in labor-related

cases;
2. Voluntary Arbitration – proceeds from the mutual consent of both parties usually in
pursuance to an agreement prepared beforehand. Where such arbitration is voluntary, the
disputing parties are the ones who select the arbitrator or members of the arbitration panel
that has the power to render a binding decision.
HOW IT WORKS
1) APPLICABLE LAW-Look for applicable law that governs the current subject of
dispute/arbitration:
Mini-Trial

means a structured dispute resolution method in which the merits of a case are argued
before a panel comprising senior decision makers with or without the presence of a neutral
third person after which the parties seek a negotiated settlement;
Early Neutral Evaluation

means an ADR process wherein parties and their lawyers are brought together early in a
pre-trial phase to present summaries of their 2cases and receive a nonbinding assessment
by an experienced, neutral person, with expertise in the subject in the substance of the
dispute;
Exception to the Application of this Act:

> International Commercial Arbitration – Model Law (Sec. 19) >Domestic arbitration and civil
controversies – RA 876 – Arbitration Law
> Commercial Arbitration – Civil Code and other pertinent laws (Sec. 21)
> Civil and criminal matters in barangay level – Katarungang Pambarangay (LGC of 1991)
> Labor & construction disputes – Labor Code and Executive Order 1008
>Agreed contract between the parties – arbitration agreement or provision pertaining to
arbitration must be stipulated in or part of the contract.
Note: The laws applicable shall govern the settlement/resolution of the dispute.

o labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor
Code of the Philippines, as amended and its Implementing Rules and Regulations;
2) THE CONTRACT-Generally, there are two ways of entering into arbitration: a) arbitration
clause-provides for the arbitration of future disputes; b) submission agreement-provides for
the arbitration of present disputes.
3) PLACE OF ARBITRATION [Sec. 30]
> This depends on the terms agreed upon by the parties.
> Failing in such agreement, the default place shall be in Metro Manila.
> Unless, considering the circumstances of the case, convenience of the parties and
appropriate for consultation of the tribunal members, hearing and inspection of goods,
property or documents, the arbitral tribunal shall decide on the place of arbitration.
Notes:
>The arbitration should be held in a place or setting which provides privacy and
confidentiality. [Sec. 23]
> The arbitration may also be held in a private office of an accredited ADR provider, if the
parties chose one. [Sec. 3(b)]
4) PARTIES IN ARBITRATION
In general:

1) The parties in dispute; and

2) arbitrators/ panel of arbitrators. [Sec. 3(d)]
But depending of the kind of subject of dispute, these persons may be involved:
1) Persons who are duly authorized in writing by the parties involved (i.e. secretary, agent,
authorized representative etc.);
2) lawyers of the parties;
3) Persons having direct interest in the case. [Sec.
12, Arbitration Law]
CUSTOMARY PROCEDURE IN ARBITRATION (for details and technicalities see Arbitration
Law):

A. PREPARATORY MATTERS

1) Selection of the arbitration panel and its chairman

2) Submission of briefs and other pleadings
3) Announcement of ground rules
4) Statement of issues by arbitrators
5) Opening of arbitration hearing
B. ARBITRATION HEARING PROPER

Opening Statements

1) Plaintiff’s Opening Statement

2) Defendant’s Opening Statement
Evidence Presentation

1) Plaintiff proceeds with his case

2) Defendant offers rebuttal evidence
3) Plaintiff presents evidence to counter defendant’s defenses
Closing arguments

1) Defendant presents his closing argument

2) Plaintiff gives his closing argument
3) Defendant proceeds with his final argument
C. FINAL OR POST ARBITRATION MATTERS

1) Setting of due date for post-arbitration briefs (if necessary)

2) Arrangements made for site inspections or visitations (if required)
3) Announcement of due date for the release of the award
4) Completion of hearing record
WHEN MAY JUDICIAL INTERVENTION BE APPLICABLE

1) if the other party needs to be compelled to arbitrate the dispute as provided by the
agreement; [Sec. 4, Arbitration Law]
2) if there is a deadlock on the choice of arbitrators; [Sec. 8, Arbitration Law]
3) if one party wishes to vacate the arbitration award; [Sec. 41, ADR]
4) if one party opts to confirm, modify or correct the arbitration award; [Sec. 23, Arbitration
Law]
5) if one party needs to enforce the arbitration award; [Sec. 27, Arbitration Law]
6) if one party needs to challenge the appointed arbitrators or seek disqualification;[Sec. 11,
Arbitration Law]
7) if one party intend to control discovery proceedings; and 8)if one party decides to have
questions of law of the conduct of arbitrators reviewed.
STAGES IN ARBITRATION

MEDIATION:

Scope of Mediation [Sec. 7]:

>voluntary mediation (whether ad hoc or institutional)

>conciliation

OR OTHER AUTHORITY to make a ruling on the dispute subject to mediation.

EXCEPT when it is terminated or settlement was 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
commercial cases as well.

FOUR PHASES:

1) Setting the ground rules for the guidance of participants

2) Employment of data-gathering methods by the mediator to fully understand the root of
conflict [Sec. 13]
Note: In this phase, 2 things are done: a) issues are defined; and b) an agenda is drawn
between the mediator and parties involved.

3) Alternative solutions are identified and reviewed for purposes of settlement

4) Resolution or an agreement to settle the dispute is reached and implementation is
commenced.
Note: The parties agreeing to the settlement may put it into writing to have a binding effect.

STEPS TO FOLLOW IN MEDIATION

1) The parties must agree to mediate. Mediation is applicable when there is a situation in
which no progress in any kind of communication (impasse) between conflicting parties. If the
opposing party is too difficult to convince to mediate, the other party may go to an ADR
provider to inform him of the benefits of the mediation and persuade him to mediate.
2) The parties must choose a mediator. [Sec. 3 (q)] The law however does not impose
special qualifications of a mediator. [Sec. 13 b3] As long as the parties trust him and has
chosen him as qualified to mediate the dispute, it is already enough.
3) Position papers must be prepared by the parties. Opposing parties must get copies of the
papers coming from both sides.
But the mediator must:
>NOT make a report, assessment, evaluation, recommendation, finding or other
communication regarding the mediation TO A COURT OR AGENCY

4) Lawyers may participate to provide assistance in the mediation. [Sec. 14]

5) Parties must be ready of possible proposals and alternatives to settle the case.
6) Decide on what the sequence of the mediation should be. There is no rule with regard to
this. This is subject to the decision of both parties. The strict rules of court and evidence are
usually not observed in mediation. Sequence may be of 2 stages:
Initial Stage-JOINT MEETING by the disputing parties with the mediator

Second Stage-SEPARATE MEETING/PRIVATE SESSION of each disputing party with the

mediator

However, the sequence may vary. Parties are free to agree if they wish to have mediation in
one seating or series of mediation sessions until parties settle or walk away.

The place of mediation is also decided by the parties. And if no such agreement is present,
any place convenient and appropriate to the parties will suffice. [Sec. 15]

Note: Proceedings or the mediation sessions are confidential. [Sec. 9] However, this may be
waived. [Sec. 10]

7) Parties must enter into a fair compromise. A compromise obtained by the parties is
considered a contract between the parties and is enforceable as such. The compromise
agreement is legally binding on the parties with the force of res judicata and bars re-
litigitation of the same cause in another action. [See sec. 17]
ARBITRATION VS. MEDIATION

ARBITRATION

MEDIATION

A microcosm of a court trial

More like negotiation and bargaining

A little structured and formal out of court settlement (thus favored by law than

Does not have a built-in due process like that in arbitration.

mediation)

Once parties agree to arbitrate, parties are bound by such agreement.

Even if parties agree to mediate, parties are not bound, thus may walk away if one does not
like what is happening

Arbitrator sits as a trier of facts

Mediator assists in the negotiation; attempts to reconcile; educate the parties of a more
realistic perspective that may lead to compromise

Arbitrator has the power to render and impose decision or award on parties and may even
subpoena witnesses to give proper judgment

Mediator does not have the power to render and impose decision or award for the parties; no
power to induce settlements; merely attempts to reconcile contradictions and diverse
positions of the parties

A party may be compelled to arbitrate as provided by the agreement

Generally, you cannot compel the opposing party to participate in mediation

Requires arbitration briefs, pleadings necessary etc. In short, more paper work

Position papers discussing significant facts and supporting documents are sufficient.

Confidential information is subject to discovery; admissible in adversarial proceeding

Confidential information is NOT subject to discovery; inadmissible in an adversarial

proceeding

CONCILIATION – the adjustment and settlement of the dispute in a friendly and

unantagonistic manner.

-is a dispute settlement procedure which uses a neutral third party to clarify issues in a
dispute so that parties concerned may themselves arrive at a mutually acceptable
agreement.
Parties in Conciliation:

1) Opposing parties
2) Neutral 3rd party known as conciliator
Note: since RA 9285 Sec. 7 includes conciliation under mediation, processes adopted for
mediation is made applicable to conciliation.

MEDIATION VS. CONCILIATION

MEDIATION

CONCILIATION

Mediator deals with the parties at the same time

Conciliator does NOT DEAL with the parties at the time

Mediator meets together with the parties and separately

Conciliator meets parties separately

Parties must present evidence/ proof, documents and position papers

None required unless conciliator requests for it. (still subject to decision WON party will allow
that)

Note: The main difference of conciliation to mediation is the 3rd party’s manner of
participation.

EARLY NEUTRAL EVALUATION – is an alternative dispute resolution process wherein

parties and their lawyers are brought together early in a pretrial phase to present summaries
of their cases and receive a non-binding assessment by an experienced, neutral person,
with expertise in the subject in the substance of the dispute. [Sec. 3 (n)]

-is a non-binding process in which a neutral third party (facilitator) manages the discussion
between parties that are attempting to reconcile divergent views and reach agreement on
issues or tasks. Facilitation is used in a wide variety of settings including management
meetings and public consultations.
MINI-TRIAL:

Note: This method is a more sophisticated form of mediation.

HOW IT WORKS

1) Parties become signatories to a mini-trial contract that specifies the conduct of hearings,
the selection of a neutral 3rd party and some discovery matters.
2) After all the preliminaries are done, hearings are conducted.
a) The presiding “judge” will give each party a brief presentation of its position
b) After the parties complete their case presentations, the representatives of the parties will
then meet to discuss settlement prospects with the mini-trial 3rd party acting as mediator
who may be free to give advisory opinions if the parties accede.
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