Gravador Lecture: Super condensed edition. Part I.Legal forms of special proceedings: Probate of wills , change of name (rule 103) , correction of entries in the civil registry (108) , Habeas Corpus (102) .

1. Probate of wills a. Note this applies only if the decedent left a will . b. Your are required to file 2 types of legal forms : ( Petitions for probate of will and

petition for letters testamentary)c. Petition for probate of a will

The important elements are: You must include the name of the decedent Include the name of the executor Attach a copy of the last will and testament Follow the 3 witness rule

d. Petition for letter testamentary Formally ask the court to appoint the executor of the will once it has been

probated. 2. Habeas Corpus

a. Note this applies for cases of illegal confinement: b. The purpose is to question the legality of the detention . It also has been validly

used to seek and ask for the custody of one’s children (i.e. enforcement of visitation rights of a husband.

c. Your are required to file a petition for Habeas Corpus in a court of competent jurisdiction

d. There is a standard legal form for this petition which can be found in your book (copy paste and fill in the blanks).

e. Just make sure that you must never file a petition for habeas corpus when there already is an information filed or when the detainee has executed a valid waiver of detention.

3. Change of name rule 103 and change of entry in the civil registry rule 108a. Rule 103: applies for a change of name: this means that you have to file your

petition for change name in the RTCb. There is a standard form in your book , which you just have to copy and fill in the

blanks c. The notable feature is that it contains the all the known aliases of the person and

his proposed new name. d. Order of the hearing must be published and made known to the publice. Rule 108 : Change of Entry in the civil registrarf. This requires that you file a petition for cancellation or correction of entries in the

civil registry. But the petition must be filed in the RTC where the local civil registry is located.

g. Don’t confuse this with Change of name under RA 9048: under this special law , when all you want to do is change a typo , or a wrong spelling , you don’t need to go to the RTC. Just file your petition with the local civil registry. Although publication is still necessary.

Part II: Legal Forms in Criminal Actions1. To initiate a criminal complaint you need to submit the following to the prosecutor:

a. A cover letter b. An affidavit of complaintc. Cover Letter

It is a formal letter to the prosecutor to inform him that you are filing a criminal complaint .

Include who is the respondent , what is the crime, what law was violated , and inform him that the facts and circumstances of the case are narrated by you in the affidavit of complaint that you have attached and submitted together with your cover letter.

It is in the cover letter that you formally request that the prosecutor will conduct a preliminary investigation.

d. Affidavit of complaint

It is a personal narration of the victim of the facts and circumstances of the case

It is verified and is therefore notarizede. Counter affidavit :

This is an optional act of the RESPONDENT. It is allowed during the preliminary investigation and it is submitted to the

Prosecutor.

Feb. 11, 2011

When you file a memorandum of appeal, you appeal the decision from MTC to RTC.Eg. Unlawful detainer

Memorandum of appeal in labor cases—when you appeal decision of the LA to the NLRC—you have to file based on the NLRC Rules.

But how about in ordinary civil actions?What will be required is an appellant’s brief. It’s the same format. Statement of facts, issues, and arguments.

I think there’s a specific provision in the Rules on what the contents of a MOA are supposed to be.

Rule 40, Sec. 7. Procedure in the Regional Trial Court (from MTC)

You will be notified with the clerk of court. After the filing of the notice of appeal, the clerk of court of the MTC is supposed to transmit all records to the RTC. After receipt, the clerk of court of the RTC will notify the parties that they are now in possession of the records of the case. It is now the duty of the appellant, within 15 days from receipt of the notice, to file his memorandum of appeal which shall discuss the errors imputed.

Naa’y assignment of errors sa memorandum.

Format for appellant’s brief:1. Assignment of errors – Errors not assigned will not be resolved with the appellate court. (“With all due respect, blah blah blah...”)2. Statement of the case/facts.

What’s the difference bet. statement of the case and statement of the facts?Statement of the case: Story sa kaso ba! A complaint was filed, an answer was also filed, pre-trial was conducted, trial was conducted on this day, on this day a decision was rendered, blah blah blah. Reiteration of what happened in the case.

Mga Kasaba ni Sir sa Room 403:1. Example, extrajudicial settlement, deed of sale, SPA... These are just documents. Dili ka muingon ug “We blah blah blah, hereby depose and state...” That only applies if you’re drafting an affidavit! You can “depose and state” if you are narrating statements of facts, and its proper place is in an affidavit.2. If it’s a document of conveyance, except kung acknowledgement, wala na’y ‘Republic of the Philippines’ diri! Naa rana sa affidavit or in an acknowledgment!3. ‘Subscribed and sworn to’, do not attach that in a deed of conveyance. It can only be attached in an affidavit or a sworn statement, not in a deed of sale!4. Tanawa sa ang pangutana before you answer! If you’re asked to draft a clause, don’t draft a deed of sale!5. Demand letter, you don’t put that under oath!

à Although, there are some letters that need to be notarized. Notarial rescission (rescind a contract), notarial prohibition (negative easement, easement of light and view, you want to prohibit your neighbor from building something that blocks your light and view, etc.).

PleadingsThese are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

Strictly speaking, the pleadings allowed in court are:1. Complaint2. Counterclaim

3. Cross-claim4. Third (fourth, etc.) party complaint5. Complaint-in-intervention6. Answer7. Reply

Some would consider motions and memoranda as pleadings, but strictly speaking, they are not.

What must you allege in the complaint?The ultimate conclusions of law.

Do you have to cite the specific provisions of the law violated in the complaint?No, only the allegations of facts.

Where will you file a complaint?With the office of the clerk of court so he will include it in the raffling. The branch clerk of court (the “winning court”) will prepare the summons and it will be served to the defendant to require him to file his answer within 15 days.

How do you deny an allegation?That’s why we have specific denials. In your answer, you may also include affirmative allegations and affirmative defenses (See ‘Rule 16’). You may also incorporate a counterclaim, either permissive or compulsory.

What’s next, after filing an answer?The reply. It’s supposed to be the last pleading.

After filing of the reply, what’s the duty of the plaintiff?He must move ex parte to set the case for pre-trial. (See ‘Rule 18’)

Before going to pre-trial, what must you do?File your pre-trial brief. You must ensure receipt of the court within 3 days before the conduct of the pre-trial. Failure to file is equivalent to failure to appear in the pre-trial. Not a ground for declaration of default ha. That will be a cause for the plaintiff to present his evidence ex parte.

(Trial, presentation of evidence, formal offer, etc. Review lang mo sa Evidence balik! J)

The case is now submitted for resolution. This is now the time to file your legal memorandum! After that, decision of the court. Katong masuko, will file a notice of appeal with the court that rendered the decision. The clerk of that court will forward the records to the appellate court and that appellate court will notify the parties.

MTC to RTC: Memorandum of Appeal (15 days)RTC to CA: Appellant’s brief (45 days); Appellee’s brief

After the decision, MFR. When will these motions come into play? After the decision or during the progress of the case. Eg, certiorari for grave abuse.

Pag-abot SC, final and executory na. The records will be remanded to the lower court for execution. You will file a motion for execution under Rule 39. After you execute, that’s the end of the case. Yay!

February 12, 2011

Last night I remember I gave you a run thru of the stages of a case

From the complaintTo the several motionsNotice of appealAppellate processCulminate in a writ of execution

Even if a writ of execution has been issued, what are the remedies?We have third party claim;writ of injunction (to stop the enforcement of the writ of execution);motion to quash writ of execution.

Preparation of a Complaint

CAPTION

Rule 7. Sec. 1. Caption.—The caption sets forth the name of the court, the title of the action, and the docket number if assigned.

The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties.

In any pleading or motion for that matter, you must make sure that there is a heading. Now, the last bar exam or in the previous bar exams, you are asked to draft a complaint for ejectment. You must make sure that the court indicated in the caption of the pleading must be the correct court. You must relate it on the law on jurisdiction. Which court has jurisdiction over ejectment cases? MTC right?

In specific performance? RTC.Declaratory relief? RTC.Application for registration of title? It depends on the assessed value. P20K below, MTC.

The rule is the same with regard to criminal cases.

Now, if it’s adversarial, there must be a “versus”

Civil case number, initially when you file a complaint you will not indicate the specific docket number because you can only determine this after the case has been raffled.

When you prepare your demand letter, there should be no caption.

Anything you file in court, there should be a caption.

What if there are several parties? Will you indicate everyone? If it’s an initiatory pleading, you must indicate everyone or named, plaintiffs and defendants. If it’s already an answer or reply, you simply indicate there, “et al.”

When you go to the allegation portion of your pleading, all of them must be named and their personal circumstances. So when you are representing the families of the victims of the sinking of the MV Princess of the Stars, will you name all of them as plaintiffs? By the way can you file a class action suit in behalf of the victims? No, it is not proper as class action suit. So all of them must be named. In fact, if you sue in your capacity as an heir, you represent heirs of pedro dela cruz, you say: “heirs of pedro dela cruz namely…” if you’re talking here of initiatory pleadings. But later, when you file pleading subsequent to complaint or petition, you can simply say “et al.” et al is a sign that there are parties other than the one named in the caption portion.

Note: you must properly correct the records. Better still, it would be highly desirable if you file an amended pleading to properly reflect the change, not just a manifestation.

BODY

Rule 7. Sec.. 2. The body.—The body of the pleading sets forth its designation, the allegations of the party’s claims or defenses, the relief prayed for, and the date of the pleading. (n)

(a) Paragraphs.—The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a)(b) Headings.—When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action,” and so on for the others.

When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4)

(c) Relief.—The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6)

(d) Date.—Every pleading shall be dated. (n)

The body of the pleading sets forth the designation, allegation, defenses, relief, and date of the pleading. All of these are provisions of the rules of court.

Allegations

Allegations of the body of the pleading must be divided into paragraphs.

Example: Complaint, it’s by numbers. It’s not like writing a demand letter. You divide your allegations into paragraphs.

Headings

You may find a need of a heading when there are two or more causes of actions. When draft your complaint and you have several causes of action, you can incorporate these causes of action in one complaint. We have the rule on joinder of causes of action.

“First cause of action…x x x x x x x x xSecond cause of action.”

Usually when there are several causes of action, you will introduce your allegations with this phrase: “Plaintiff reiterates former? allegations and further states that…” meaning that previous allegations are also part of the allegations in your allegations in your first cause of action.

In the second cause of action: “all the forgoing allegations are hereby… plaintiff further states…”

Prayer

Don’t forget that your pleading has a prayer. The prayer is the relief sought. Enumerate all specific reliefs sought.

Ejectment for instance, the first or the fundamental relief that you will ask will be “to vacate.”

Demand letter for ejectment

You should demand to pay and vacate. You need not use the word “vacate.” You can say: pay accrued rentals and surrender possession. But your demand to vacate must be categorical. You should not say: “pay accrued rentals or demand to vacate.” Remember, demand letter for purposes of ejectment, it is very significant, especially in unlawful detainer because it is a jurisdictional requirement. If there is no allegation in your complaint that you made a demand to vacate in unlawful detainer, you have no cause of action. Although in forcible entry, a demand letter is not required.

Other reliefs:DamagesAttorney feesGeneral reliefs (“such other reliefs, just and equitable under the premises are likewise prayed for”) – to be granted relief not otherwise prayed for

Date

Every pleading must be dated.

Take note: verification must be signed after the plaintiff has read the pleading.

Ruling: “Justice Carpio said: that is not necessarily fatal.” The complaint may have been transmitted through e-mail. The plaintiff may have read the complaint later.SIGNATURE

Rule 7. Sec. 3. Signature and address.—Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.

The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (5a)

Pleadings must be signed. Unsigned pleadings lose its legal effects.

Indicate also your law office, address, telephone number, e-mail. Never mind the facebook account. Also indicate IBP no., PTR, Roll no., MCLE compliance certificate no.

IBP – from IBP receipt after paying annual duesPTR – from the Provincial/City TreasurerRoll – from the SC after passing the Bar and after taking your oath. You will sign the roll of attorney, then you will be given a certificate of membership in the Philippine Bar where you can find your Roll number.MCLE – …

If you have no MCLE compliance certificate, you can be objected to. If you just passed the bar, indicate their exempted.

VERIFICATION

Take note: the verification, this will be attached to the complaint as well as the certification.

Rule 7. Sec. 4. Verification.—Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on “information and belief,” or upon “knowledge, information and belief,” or lacks a proper verification, shall be treated as an unsigned pleading. (4a)

If in doubt, just verify, bahala ni dili kinahanglan. If not required, nothing will happen.

“In cases covered by the rules on summary procedure, like ejectment, all civil actions other than testate proceedings where the value or damages claimed does not exceed P100,000, violations of ordinances and other offenses where the penalty does not exceed arresto mayor or 6 months…” must be verified.

In summary procedure – no need to present witnesses. Judgment will be based on position papers. Under the rules, all pleadings must be verified.

Under Rule 30, if you seek for postponement of trial on grounds of absence of evidence or illness or party, your motion must be supported with an affidavit.

Sec. 3. Requisites of motion to postpone trial for absence of evidence.—A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to their admissibility, the trial shall not be postponed. (4a, R22)

Sec. 4. Requisites of motion to postpone trial for illness of party or counsel.—A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22)

Can the counsel himself verify? Yes, if duly authorized. But counsel himself cannot execute a certificate of non-forum shopping.

If there are two or more plaintiffs in a case, will all of them sign the verification? Yes, but the rule was later relaxed and the Court allowed only some to verify and that was treated as substantial compliance already especially if the cause of action is common to all the plaintiffs.

Remember also the rule in property, that any co-owner may file an ejectment action even without impleading the other co-owners.

CERTIFICATION AGAINST FORUM SHOPPING

Rule 7. Sec. 5. Certification against forum shopping. —The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission, of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)

Certification against non-forum shopping is required in all initiatory pleading.

Can you attach a certification against non-forum shopping in your answer? No, except when in your answer you interpose a permissive counter-claim.

ALLEGATIONS

Start with stating the personal circumstances and their respective addresses.

State the alleged facts. If there are documents that would establish that the defendant that loaned a sum of money or a copy of a promissory note, you attach them.

“Annex A, B, C…; AA, BB, CC…; AAA, BBB, CCC…” – applied by the initiating party.“Annex 1,2,3…” – applied by answering party.

Assuming that you want to specifically mark a portion of a document, how will you do it? For example, you want to pre-mark the signature in a promissory note…

Exhibit A-1-A (for initiating party)Exhibit A (promissory note) – 1 (the signature) – A (sub mark in the signature)

orExhibit 1-A-1 (for answering party)

Legal formsFebruary 18, 2011Final Exam – drafting of opinion, I’ll give you the facts and I’ll give you a library, laws and jurisprudenceI have already discussed how to draft a memorandum. It depends upon your style. Your guidelines however, one of which being you have to minimize sounding like a lawyer, because remember, the object of legal writing is to be understood. Let your wife, your girlfriend, boyfriend, relative who has no background in law read what you wrote and ask them whether they understood your writing, if they cannot understand, it means that you have a bad legal writing, if they can understand, it means what you are doing is correct. Remember, the object of legal writing is to be understood.COMPLAINT

You have to contend with the rules. What is your basis. Its rule on writing simply still applies especially when you write your allegations. When you draft your complaint you are narrating your story there. Those are your allegations. You still have to prove what you alleged in your complaint. You prove it through presenting a witness. You present with your rules in evidence in mind, asking her the proper question, etc. The complaint has table of parties, plaintiff and defendant, title of the case, allegations, relief, then your signature plus your verification and certification of non-forum shopping. After the complaint, summons, then if a summon is served o the defendant. Then, of course the defendant would procure the services of a lawyer. The defendant has 15 days to answer. Then, the lawyer, will file a motion for extension or entry of appearance.ENTRY OF APPEARANCEMerely informing the court that you are entering your appearance as counsel for defendant and your requesting that as such you will be furnished with all processes and notices from the court. This is also a paper or a pleading that you will file in court. Once you file this, you are entitled to be furnished with all legal notices. Not to the party, but to his counsel.ANSWERThis is where specific denials come out. Specific denial goes like this: par. 1 is denied, the truth of the matter is this.. If you admit: par. 2 is admitted. If you have no knowledge: par. 3 is denied, the defendant having no knowledge sufficient to form a belief as to the truth or falsity of the allegation. Remember, if you will not properly deny an allegation, received because that evidence is judicial. If the defendant does not specifically deny, it becomes judicial admission, as counsel for the plaintiff, the procedural remedy available is you can either file a judgement on the pleadings. If you write only SPECIFICALLY DENY, NO SUBSTANCE of the matters, THAT’S WRONG! THAT’S GENERAL DENIAL. Be careful on that no knowledge because remember your personal circumstances.

AFFIRMATIVE DEFENSES

You incorporate that in your Answer. Examples of which are those grounds found in Rule 16, Rules of Court in Motion to Dismiss such as no jurisdiction. There’s Supreme Court circular discouraging lawyers in filing Motion to Dismiss instead an Answer. There’s an IBP and Office of the Court Administrator wherein lawyers, actually not prohibited but discouraged to file a Motion to Dismiss and instead encourages lawyers to file an Answer and invoke the grounds under Rule 16 as Affirmative Defenses. It is better because when you file an Answer, the plaintiff cannot amend her complaint as a matter of right because answer is a responsive pleading. The rule states that if a responsive pleading is filed in court, you need leave of court before you can amend your complaint. But if it is a Motion to Dismiss that is filed, the plaintiff can amend even without asking without prior leave of court. In most cases, the judge but allow the amendment of the complaint. But there are instances wherein a Motion to Dismiss is proper to be filed: when you invoke lack of jurisdiction. Because when you file an answer, you subject yourself voluntarily to the jurisdiction of the court unless you file an answer ex abudante ad cotelar (with abundance of caution) meaning you file an answer without necessarily waiving your right to question the jurisdiction of the court.

RULE 16MOTION TO DISMISS

 Section 1. Grounds.  

Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:   (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with.

But there are affirmative defences where necessarily, the court has to assert its jurisdiction before it can pass judgment upon them such as prescription, over the subject matter, over the person of the defendant, non-compliance of conditions precedent, Rule 16.

OMNIBUS MOTION RULE

At the first opportunity, invoke all the grounds, if you fail, you waive. If you invoke jurisdiction at the same time estoppels or statute of frauds, you’re not being inconsistent.

PRAYER

If you are the defendant, you ask for the dismissal. If you have a counterclaim, you ask to rule on your counterclaim

How to contest documents? If it is actionable documents – deny specifically under oath. But generally if you file an answer attach a verification. Even if it’s not required to be under oath, attach a verification to be safe. Though not all pleadings need to be verified.

REPLY

Reply is different from Answer to the Counterclaim. If there is an Answer with Counterclaim, what should you do as a plaintiff would depend to the kind of Counterclaim. If it is compulsory, you don’t need to answer because its just compulsory. If it is permissive, your duty as the plaintiff is to see if the defendant paid the docket fee for the counterclaim because if not, then move for the dismissal of the counterclaim. Sunflower case. Because as far as counterclaim is concerned, the defendant is the plaintiff. If it is permissive counterclaim, make sure that you file an Answer or else you can be declared in default with regards to the permissive counterclaim. The point is Reply is different to the Answer to Counterclaim.

If you do not file a Reply, the effect is new allegations in the answer deemed controverted.

THIRD PARTY COMPLAINTBefore you file a third party complaint, make sure that you file a Motion for Leave. You are basically asking permission of the court because the court has to determine the nature of your third party complaint. This is the procedure:

In the Motion for Leave, you attach already your third party complaint (Rule 15).

RULE 15MOTIONS

Sec. 9. Motion for leave.  

A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

Third party complaint different from terceria

COMPLAINT

If you mention a document in your complaint, you have to attach the document. Photocopy first but when you present, prepare photocopy and original and let the witness identify the photocopy and make a manifestation requesting the counsel of the other party to compare and admit whether the photocopy is a true and faithful reproduction of the original and mark it as exhibit. But in the preliminary conference, you are already asked to compare now.

ANSWER

When you prepare your answer, just a suggestion, make headings. Classify them as admissions or denials so that you will not be confused in making subsequent pleadings. Admissions, denials, affirmative allegations, affirmative defences, counterclaim such as damages, expenses.

PRE-TRIAL BRIEF

In Rule 18, it is stated what must be the contents of the pre-trial brief such as statement of facts, admissions, and propose stipulation of facts based on your denials.

RULE 18PRE-TRIAL

Sec. 6. Pre-trial brief.  

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall contain, among others:   (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted facts and proposed stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or exhibits to be presented, stating the purpose thereof; (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

Reply is not mandatory because all new matters are deemed controverted.

How do you make amendments? You either underline or bold the font. But before you amend, you have to file a motion for leave when you amend your answer if there is already a reply. With regards to complaint, when there is already an answer. You again attach with the Motion for Leave the necessary pleading already amended. You amend because you committed a mistake or you want to include a plaintiff or clarify your allegations, to vest jurisdiction when in the outset it has no jurisdiction.

Example: Unlawful detainer filed before the RTC with an allegation for SPECIFIC PERFORMANCE to vacate.

Before a court can render affirmative relief, it must have jurisdiction. If there is still a pending Motion for Leave to Amend, the case is not yet ripe for Pre-Trial. You can only have Pre-Trial when the issues are joined. Issues are joined meaning there is already answer, reply, etc. Parameters for legal battle have been set. You cannot change your theory during the pre-trial (proceedings). If you want to change your theory, amend your pleading. There is also Amendment to Conform with Evidence. This happens when there is no objection. There is deemed an amendment. When you introduce evidence which does not traverse in the complaint, or in the answer, or in the pleadings, you must object.

After the last pleading has been served and filed, it shall be the duty of the plaintiff to set the case for pre-trial. You file a motion to set the case for pre-trial ex parte. Generally, motions has to be set for hearing but for non-litiguous motions, such as this motion, you do not have to set the case for hearing. You merely state please submit the foregoing motion for the consideration and immediate approval of the court addressed to the clerk of court. For litigious motions, please submit the foregoing motion for the approval and consideration of the court on ___. Make sure you comply with the 3-day notice address to the other party’s counsel.

What are required to be filed? Pre-trial brief. Contents in Section 6.

LEGAL FORMS (February 26, 2011)

Legal Opinion:

e.g. Matoy is engaged in the transportation business and engages Larry as the driver of one of the busses that he owns. Larry hit a pedestrian which resulted in the latter’s death. Matoy wants to know the possible sources of his liability. Liability under the civil code, RPC if there is any. Discuss all the possible sources. Possible legal defenses.

The tendency is to discuss and discuss. Never mind the format, basically in a letter format. It should be more extensive than an essay. Common format would be you narrate the facts, then the issue then your discussion. Failure to cite specific provision of the law will not be taken against you as long as you are citing the correct legal principle. In an ideal set-up you have to cite the case and specific provision.

RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT

SECTION 1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari.  The petition shall raise only questions of law which must be distinctly set forth. (1a, 2a)

SEC. 2. Time for filing; extension.—The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment.  On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a, 5a)

SEC. 3. Docket and other lawful fees; proof of service of petition.—Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (1a)

SEC. 4. Contents of petition—The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (2a)

SEC. 5. Dismissal or denial of petition.—The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (3a)

SEC. 6. Review discretionary.—A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:

(a)            When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or

(b)            When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (4a)

SEC. 7. Pleadings and documents that may be required; sanctions.—For purposes of determining whether the petition should be dismissed or denied pursuant to section 5 of this Rule, or where the petition is given due course under section 8 hereof, the Supreme Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non compliance with the conditions thereof. (n)

SEC. 8. Due course; elevation of records.—If the petition is given due course, the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. (2a)

SEC. 9. Rule applicable to both civil and criminal cases.—The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n)

Petition for Review (Rule 45) is a mode of appeal.When you appeal to the SC, don’t commit the mistake of simply filing a notice of appeal before the CA. it must be in a Petition for Review form. Under the rule you are just given 15 days so is it enough? It would take several pages. So you file a motion for extension to be safe. When you file a motion for extension, usually it is given due course. File within the 15 day period and at the same time make sure that you pay the docket fee.

After making use of the extension, you now have to file a Petition for Review, you start with the parties, etc. What’s important is the statement of material dates. In any petition you will file don’t forget this.

Statement of material dates is simply in reason of when did you receive decision. It is very important to determine WON you filed the petition within time provided for in the rules. Failure to state material dates in the petition is fatal to your petition and will lead to its dismissal. 3 important things you must include in your statement of material dates.1. when you received the decision2. if you filed a motion for reconsideration, when did you file MR and 3. when you received order denying MR

Statement of the case: narration of what legal moves you did. You filed a complaint, and answer was filed, pre-trial then trial was held, the decision rendered etc.

Statement of facts: you don’t state the filing of complaint etc. it is merely the story telling part of the pleading

Errors committed: here you are bringing to the attention to the court what are the relevant issues. {Issues not properly raised cannot be passed upon by the court}(e.g. CA gravely erred…) and the GROUNDS for the allowance of the petition. In the discussion of the grounds, you include here the discussion of jurisprudence and the law. Don’t discuss the law and jurisprudence in the statement of facts portion.

When you draft statement of facts, make it as unbiased as possible. Cite only those which are really facts. If it’s only an allegation or a fact not proven, you’ll be in hot waters. In fact it is better if you make a footnote citing the specific portion in the TSN (transcript of stenographic notes) where that fact appears.

In the TSN, sometimes judge will say off the record, if you’re a lawyer and your manifestation is very important you should put that on record. Because if the records will be elevated upon appeal, they will see WON the judge was biased.

Can you omit unfavorable facts in your statement of facts?

According to the book you should not because it is easily verifiable. But there is a way to neutralize unfavorable facts. My advice in legal writing is to make a statement in the active sense (e.g. accused rapes so and so). If unfavorable facts, you make it in the passive sense, you are not lying, you are simply arranging the truth. ;) as lawyers we are advocates. But don’t misquote or misrepresent duly established facts even if it’s unfavorable.

RULE 44 ORDINARY APPEALED CASES

SECTION 1. Title of cases.—In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee. (1a, R46)

SEC. 2. Counsel and guardians.—The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court. (2a, R46)

SEC. 3. Order of transmittal of record.—If the original record or the record on appeal is not transmitted to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46)

SEC. 4. Docketing of case.—Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. (4a, R46)

Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with the proof of service of two (2) copies thereof upon the appellee. Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground for dismissal of the appeal. (n)

SEC. 5. Completion of record.—Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform said court and recommended to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. (n)

SEC. 6. Dispensing with complete record.—Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration. (n)

SEC. 7. Appellant’s brief.—It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral anddocumentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee. (10a, R46)

SEC. 8. Appellee’s brief—Within forty-five (45) days from receipt of the appellant’s brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellant. (11a, R46)

SEC. 9. Appellant’s reply brief.—Within twenty (20) days from receipt of the appellee’s brief, the appellant may file a reply brief answering points in the appellee’s brief not covered in his main brief. (12, R46)

SEC. 10. Time of filing memoranda in special cases.—In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. (13a, R46) The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. (n)

SEC. 11. Several appellants or appellees or several counsel for each party.—Where there are several appellants or appellees, each counsel representing one or more but notall of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them. (14a, R46)

SEC. 12. Extension of time for filing briefs.—Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (15, R46)

SEC. 13. Contents of appellant’s brief.—The appellant’s brief shall contain, in the order herein indicated, the following:

(a)            A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b)            An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively;

(c)            Under the heading “Statement of the Case,” a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record;

(d)            Under the heading “Statement of Facts,” a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;

(e)            A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment;

(f)             Under the heading “Argument,” the appellant’s arguments on each assignment of error with page references to the record.  The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found:

(g)            Under the heading “Relief,” a specification of the order or judgment which the appellant seeks; and

(h)            In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from. (16a, R46)

SEC. 14. Contents of appellee’s brief.—The appellee’s brief shall contain, in the order herein indicated, the following:

(a)            A subject index of the matter in the brief with a digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b)            Under the heading “Statement of Facts,” the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading “Counter-Statement of Facts,” he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and

(c)            Under the heading “Argument,” the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. (17a, R46)

SEC. 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. (18, R46)

Apellant’s brief. Especially when you draft an apellant’s brief. Format is provided under Rule 44 of the rules of civil procedure. Sec 13 provides contents and you must comply with this strictly. Table of contents, Subject index, assignment of errors, statement of the case, prayer, cases cited authorities cited. Filed within 45 days to CA.

If you appeal decision of the RTC to the CA, mode of appeal is notice of appeal (within 15 days) – only one page. In the appellate procedure, lower court renders a decision, you file MR, then notice of appeal. After receipt of notice of appeal by the lower court, judge will order to prepare records for transmission to the CA. After transmission, case will be raffled to a specific division. There is a procedure in CA where there’s a division for the completion of records meaning, case will be initially assigned to a certain division for completion of the records. If records are completed it will be raffled again for adjudication. The purpose is to prevent irregularities. The division to which it is assigned will issue a notice in a resolution form directing the appellant to submit appellant’s brief within 45 days.

Appellant’s brief is different from a pleading. It begins with assignment of errors (e.g. Lower court erred in…). Make sure that all questionable portions of the decision must be raised as an assignment of error, otherwise you cannot raise that later in the SC.

Appellee’s brief filed within 45 days from receipt of the copy of the appellant’s brief.

Do you have to implead lower court in ordinary appeal? NO. You implead the lower court in Certiorari under Rule 65 as a nominal party.

PP v. MateoProviding for an intermediate review with the CA before the case is elevated to the SC. The penalty imposed is reclusion perpetua, life imprisonment or death, there is automatic review if death. In case of reclusion perpetua, you file notice of appeal to RTC then to the SC. In PP v. Efren Mateo, it was remanded to CA. Is the filing of Appellant’s brief required in the SC? NO. (sir did not state the reason)

Criminal Cases:

Pleadings not much in criminal cases.

How do you commence criminal action? No summons. You go to fiscal if it requires preliminary investigation (PI). What are the offenses which require PI? Penalty is 4 yrs, 2 mos. & 1 day PI required. Are all cases within the jurisdiction of MTC do not require PI? NO. Jurisdiction of MTC covers cases with penalty up to 6 years but for purposes of PI, if it only exceeds 4 years and 2 months. So there are cases cognizable under the MTC and yet require PI.

What happens in PI?

1. Starts with filing of affidavit-complaint and affidavit of the witnesses. So dili na ka atong “plaintiff respectfully allege that…”. It requires a different format. If you file it with the prosecutor, attach a covering letter to your affidavit. Just a letter saying “I am respectfully filing a criminal complaint for falsification of public document against so and so, the facts and circumstances in support thereof are narrated in the attached affidavit complaint. With its filing I respectfully request for the conduct of preliminary investigation.” And you attach your affidavit. If its an affidavit, attach a jurat. This is different from a judicial affidavit.

Make sure in your narration all the elements of the crime are present. Signature of affiant and the subscribed and sworn to. By the way this oath and certification, this is a peculiar requirement when you file an affidavit-complaint with the prosecutor. It’s a requirement under Rule 112.

Who will subscribe?Rule provides it’s the prosecutor and the notary public can only notarize in case of unavailability of the prosecutor.

2. Next step would be for the fiscal to prepare a subpoena requiring respondent to file his counter-affidavit (this is a different kind of subpoena from that requiring the witness to appear). He must file a counter-affidavit, NOT an answer nor an appellant’s brief.

3. After counter-affidavit, reply-affidavit which is the last pleading filed. After reply-affidavit is filed, it is now submitted for resolution.

4. The Resolution is only for the prosecutor to determine WON there is sufficient cause to engender a well-founded belief that a crime is probably committed, not proof beyond reasonable doubt.

After a finding of probable cause, the records are now elevated to the court. The case is raffled and after determination of the specific branch, such branch will determine probable cause sufficient to issue a warrant of arrest.