PLEADINGS IN CIVIL CASES

1. Complaint

2. Answer

3. Counter-claim

4. Cross-claim

5. Reply

6. Third party

7. Complaint in intervention

PLEADINGS IN CRIMINAL CASES

1. Complaint / Information

Complaint done under oath by the offended party himself in crimes which needs to be initiated by him alone. (adultery, concubinage, crime against chastity seduction, etc) Information an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. If nature of complaint alleges an offense with an imposable penalty of 4 years 2 months and 1 day = preliminary investigation is mandatory. ~ it will be filed by the complainant as an initiatory pleading done under oath.

2. Counter- Affidavit filed by the respondent after the investigating prosecutor to determine if there is a prima facie case.3. Reply

4. Rejoinder

PLEADINGS IN SUMMARY PROCEEDINGS

1. Complaint

2. Answer

MODES OF DISCOVERY

1. Depositions

Purpose:

1. To elicit information in advance

2. To perpetuate the testimony of the witness (but not bound to produce it in court)

3. To impeach a witness

When done?

After the court acquired jurisdiction and before the filing of an answer, with leave of court; OR Without leave AFTER an answer has been served

Deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action

Examination and cross-examination of deponents may proceed as permitted at the trial

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;

The deposition of a party who at the time of taking the deposition was an officer, director, or managing agent which is a party may be used by an adverse party for any purpose;

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(1) that the witness is dead; or

(2) that the witness resides at a distance more than 100 kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or

(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

(4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and

If only part of a deposition is offered in evidence by a party; the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Substitution of parties does not affect the right to use depositions previously taken; and, when another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Aparty shall not be deemed to make a person his own witness for any purpose by taking his deposition.

Theintroduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition

Persons before whom depositions may be taken within the Philippines. judge, notary public, Ifthe parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place.

Persons before whom depositions may be taken in foreign countries.

(a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines;

(b) before such person or officer as may be appointed by commission or under letters rogatory; or

(c) Ifthe parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place.

Nodeposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action.

Theofficer before whom the deposition is to be taken shall put the witness or oath and shall record the testimony of the witness.

All objections made at the time of the examination shall be noted by the officer upon the deposition. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answersverbatim.Theofficer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness.

Effect of errors and irregularities in depositions. As to notice.All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

As to disqualification of officer.Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

As to competency or relevancy of evidence.Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

As to oral examination and other particulars.Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.

As to form of written interrogatories.Objections to the form of written interrogatories submitted under sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized.

As to manner of preparation.Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.Feb 21, 20132. Interrogatories to partiesAny party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

Theinterrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within 15 days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time.Objectionsto any interrogatories may be presented to the court within 10 days after service, with notice as in case of a motion; and answers shall be deferred until the objections are resolved ASAP.Noparty may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

Failure to serve written interrogatories. may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

CLASS NOTES:Other modes of discovery:Written interrogatories-Nature: Purpose: When is it proper? Is it the same with depositions? After the court acquired jurisdiction over the person of the defendant and before the filing (or service?) of an answer, with leave of court; OR Without leave AFTER an answer has been served(Sec. 4) Noparty may, without leave of court, serve more than one set of interrogatories to be answered by the same party. Leave of court is necessary for the succeeding sets of interrogatories.What is the nature/purpose why leave of court must be secured before one may be allowed to furnish the other party a set of written interrogatories? Should the court review the same?The modes of discovery is precisely a form of fishing expedition for evidence. What do you mean by 1 set? How many questions are incorporated to such set? No limit as to the number of questions. Will follow up questions be allowed? YES which can be incorporated in the first set. Why resort to written interrogatories instead of depositions? What is its advantage? The answer in written interrogatories are considered as admission. In depositions there are requirements to be followed which are absent in case of written interrogatories. ADVANTAGE- perpetuating or preservation of the testimony in the event that the witness dies or is out of the country In deposition, failure to answer has no adverse effect In written interrogatories, failure to answer is tantamount to admission as in case of actionable documents. DISADVANTAGE- the adverse party can use it in his favorFailure to give answer-Denial in case of actionable documentGR:Effect of mere denial of knowledge or participation in case of actionable document- it must be denied under oath otherwise, it is tantamount to admission (specifically deny under oath and state why you are denying such)XPN: if it appear that he has no participation or hand in th execution of the document.Can there be oral interrogatories--taken orally? no, there is already written interrogatories. In depositions are allows objections to be raised only that such objections will only be appeared in the records to be resolved later on; written interrogatories- there is effect of failure to make an answer.Can there be written interrogatories during the trial proper?Which one is being tried facts or issues? During pre-trial which one is being subject to stipultion or agreement?Decisions are supposed to be founded on facts as well as in the applicable law. Facts are not supposed to be the one as how the case happened. It is the facts as presented by the parties and submitted by them for decision. Facts are alleged by the parties. No one knows the gospel truth. Before one to be considered credible, one is subjected to cross-examination in consonance with procedural due process. it is because of such contestable facts that the court held trial. Issues are supposed to be subject to the appreciation of the courts. There is no stipulation as to the issue. Issues must be supported by the facts not the other way around. Resolve the facts first.Facts + Law= decisionTrial court tries the facts (not trier of issues) not the appellate court. Notice of appeal- allege that the decision is contrary to the facts and the law3. Admission by Adverse Party

Atany time after issues have been joined, file and serve a written request for the admission of the genuineness of any material and relevant document or of the truth of any material and relevant matter of fact. Implied admission.Eachof the matters of which an admission is requested shall be deemed admitted unless, within not be less than 15 days after service, or within such further time as the court may allow, the party files and serves a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.Objections - submitted to the court by the party requested within the period for and prior to the filing of his sworn statement and his compliance shall be deferred until resolved.Admission is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding.

Thecourt may allow the party making an admission to withdraw or amend it.

Party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts.

4. Production or Inspection of Documents or Things

The court in which an action is pending may for good cause shown:

(a) order any party to produce and permit the inspection and copying or photographing, of any designated documents, papers, books, accounts, etc. not privileged, material to matter involved in the action; or(b) order any party or permit entry upon designated land or other property for inspecting, measuring, surveying, or photographing the property. 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.CLASS NOTES:When do you avail of this mode of discovery? Why resort to it?What is good cause? Is it synonymous with honest cause? Will good cause require proof? Who determines good cause?Documents in possession of public officials are accessible to the public. there need not be good cause. yet, upon filing of case, good cause must be shown. the lmitation as to its extent will depend on the reasonableness. Good cause is subject to the discretion of the court.A party is not prohibited from coming close to the crime scene provided that there is prior consent of the authorities. RATIO: In case of change of counsel taking over the case. The court consider the crime scene as in custodia legis. So as to prevent the tampering of the evidence.5. Physical & Mental Examination of Persons

WHEN:Inan action in which the mental or physical condition of a party is in controversy, upon discretion of the courtOrder for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties.Ifrequested by the party examined - deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made. If the party examined refuses, the court on motion and notice may make an order requiring delivery on such, and if a physician fails or refuses tomakesuch a report the court may exclude his testimony if offered at the trial.Waiver of privilege.Byrequesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.CLASS NOTES:Sep.rule for the examination and inspection of the body or the mental facultiesWhat must be examined must be specified---is the rule the same with application for search warrantXPN: If the manifestation of mental incapacity can be manifested from the physical appearance-- both the mental and physical examination can be had. REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Refusal to answer. deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory.If the application is granted, the court shall require therefusingparty or deponent to answer the question or interrogatory and if it also finds that the refusal toanswerwas without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorneys fees.If the application is denied, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorneys fees.

Contempt ofcourt.If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court.Other consequences.(a) An order that the matters shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose claims or defenses or prohibiting him from introducing in evidence;

(c) An order striking out pleadings or parts thereof, or staying proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party; and

(d) order directing the arrest of any party (except an order to submit to a physical or mental examination)Feb 28, 2013PRE-TRIAL - for the expeditous resolution of the case MODES OF ALTERNATIVE DISPUTE RESOLUTION:1. Mediation2. Arbitration3. Judicial dispute resolution- judge acts as a mediation judge: conciliatior, arbitrator, neutral evaluatorLUPONG TAGA-PAMAYAPA- -compose of P. Barangay as chairman and 10-2o members-Has 15 days to act as conciliator-Pangkat Tagapagkasundo- conciliation panel: chosen by the parties from the list PRE-TRIAL IN CIVIL CASESWhen: After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly moveexpartethat the case be set for pre-trial. (Pre-trial is mandatory, EXPT small claims)SMALL CLAIMS- initiatory pleading: statement of claim followed by the response-Pro-forma-Lawyers are not allowed to appearPurposge.

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.Notice of pre-trial. served on counsel, or on the party if no counsel. The counsel has the duty of notifying his client.Itshall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents.failure to appear Plaintiff - cause for dismissal of the action with prejudice, unless otherwise ordered. Defendant - cause to allow the plaintiff to present his evidenceex parteand the court to render judgment on the basis thereof. Pre-trial brief. file with the court and serve on the adverse party, 3 days before the date of the pre-trial. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.Content:(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 then 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.

Record ofpre-trial.Theproceedings in the pre-trial shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.PRE-TRIAL IN CRIMINAL CASESThe court shall, after arraignment, within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:(a)plea bargaining;

(b)stipulation of facts;

(c)marking for identification of evidence of the parties;

(d)waiver of objections to admissibility of evidence;

(e)modification of the order of trial if the accused admits the charge but interposes a lawful defense; and(f)such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

Pre-trial agreement or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel. The agreements shall be approved by the court.Non-appearanceIf the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties.Pre-trial orderAfter the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.CLASS NOTES:Pre-trial is mandatory in both civil and criminal cases. If it is mandatory, it is something which you cannot dispense with.What is the effect of its absence in criminal cases? Can it proceed notwithstanding its absence? Can there be an instance where criminal case can proceed without undergoing Pre-trial? If a case is set for Pre-trial and the accused failed to appear, can the Pre-trial proceed?In criminal cases, there can be no declaration of default. It is only true in case of civil cases because of the failure of the defendant to appear in civil cases.In criminal cases, the accused need not attend Pre-trial. Presence of the counsel is sufficient. Provided that the accused is represented by his counsel. This rule is not true in civil cases where the presence of the defendant is necessary.The stipulations and agreements do not bind the accused except as to other matters.The Pre-trial agreement must be signed by the accused and his counsel. Why is it that the pre-trial is valid when in fact both the counsel and accused should sign the pre-trial agreement?Is there an instance wherein despite the absence of the accused, still he is bound by the stipulations?Even if the identity of the accused is agreed upon or admitted, it does not mean that he is the one who perpetrated the offense. this is good only in so far as the name of the accused or as the person described in the information. Any agreement in Pre-trial should bear the signature of the accused and his counsel. If the accused is not around in the Pre-trial, can such agreement bind the accused.Subpoena- issued in criminal cases onlySummons- to acquire jurisdiction over the defendant not mandatory for accused to attend Stipulations entered into by the counsel still binding provided that before the first witness is presented, the counsel and accused sign the Pre-trial order. Both signatures must be present before the stipulation can bind the accused. Upon hiring a lawyer, the stipulations entered into by lawyer bind the accused. XPN: anything prejudicial to the accused cannot be construed against him. It will not bind him. What is being avoided is for the counsel to make an improvident admission prejudicial to interest of the accused. Lawyer can bind him as to other matters taken in the Pre-trial but not to those stipulation or agreements wihtout the knowledge or approval of the accused. . They are not prejudicial- marking of documentary evidence, no. of witnesses, trial dates. accused may waive his appearance during trail.Matters(a)plea bargaining;(b)stipulation of facts;(c)marking for identification of evidence of the parties;(d)waiver of objections to admissibility of evidence;(e)modification of the order of trial if the accused admits the charge but interposes a lawful defense; Is this always mandatory? It will depend on the discretion of the courts. It does not automatically warrant the conduct of reverse trial.(f)such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. -Once a criminal action is instituted, there is implied institution of civil aspect of the casePRE-TRIAL in CIVIL CASEPurposge. (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;What is ADR? There are 2 ADR recognized by the SC: mediation under Philippine Mediation Center and Judicial DIspute Reso.PMC- mediators are non-lawyers who undergo training and skills and are duly certified-lawyers can apply Mediation-when a case is initially set for Pre-trial and the court determines that the case is subject to arbitration or mediation. -part of Pre-trail-if parties do not appear all sactions impose during pre-trial can be imposed against them-Paries are encouraged to enter into settleement otherwise, the court will refer the matte to JDRJDR- Presiding judge sitting as a mediator-Find ways for parties to agree on a particular settelement-If JDR fails, the case will be re-raffled: acquisition of confidential decision which will make him partial; so as not to be influenced by the information he acquired during the JDR-acts as neutral evaluator-Illicit information to assess with impartiality the status of the case(b) The simplification of the issues;-define the issues-what are tried are the facts not the issues-when you settle the facts, do you settle the issues and vice versa?-when can there be summary judgement and judgment based on the pleadings? -RULES 34 and 35-when there is no more genuine issue-at what stage will there be summary judgment and judgment based on the pleadings?-if in the answer of the defendant, there are no genuine issue(c) The necessity or desirability of amendments to the pleadings;Civil cases:-Prior to service of answer-without leave of court-After-with leave of courtCriminal cases:form and substance-before pleaSubtance(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;-necessary to both civil and criminal case-matters stipulated by parties need not be proven and are tantamount to admission(e) The limitation of the number of witnesses;-Material in civil cases but not in cases covered by small claims are there are no witnesses thereinJUDICIAL AFFIDAVIT RULE(f) The advisability of a preliminary reference of issues to a commissioner;-effective and material if issue is not within the expertise of judge-technical issues-collection for sum of money-Commissioner can only make a recommendation but it is not binding upon the court; discretion of court to accept, deny (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;(h) The advisability or necessity of suspending the proceedings; andReferral to PMC and JDR-You cannot proceed if the parties are negotiatingMTC-30 daysRTC-30 days but extendible-referral to a commissioner-prejudicial questions-which is to be suspended? Criminal action(i) Such other matters as may aid in the prompt disposition of the action.Assignment:Rules on evidenceTRIAL

ORDER OF TRIAL1. Prosecution

Prove the charge Civil laibility XPN:a) Reservation-reservation must be made before the presentation of evidence XPN to the XPN: BP 22- reservation to file a separate action is not allowedXPN to BP 22 case: you can institute a separate civil aactionable case small claims cases. You can use the check for small claim. But you have to waive the filing of the criminal action. b) Waiverc) Institution of the separate civil action- Arts. 32,33,34,2176 of NCC- notwithstanding the filing of the criminal action, both can proceed simultaneously 2. Defense- Provisional Remedies (SIARR)1. Attachment2. Injunction3. Support pendente lite4. Replevin5. ReceivershipEXAMINATION OF WITNESSES Done in open court under oath or affirmation, done orally. (unless incapacitated to speak)

Order of examination

a.) Direct Examination

The examination in chief of a witness by the party presenting him on the facts relevant to the issue.b.) Cross-Examination

As to any matters stated in the direct examination or connected therewith

Purposes:

1. To discredit the witness himself2. To discredit the testimony of the witness

3. To clarify matters

4. To elicit admissions from the witness

c.) Re-direct examination

Purpose: to explain or supplement his answers given during the cross. Questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.

d.) Re-cross examination

The adverse party may re-cross examine the witness on matters stated in his re-direct, also on such matters as may be allowed by the court. Witness cannot be recalled without leave of court. GR party who offers the testimony of a witness is bound by the testimony of said witness

EXPT

Adverse party; Hostile witness; Unwilling witness;Hostile witness only when declared by the court upon adequate showing of:

Adverse interest

Unjustified reluctance to testify

Having misled the party into calling him and betraying him on the stand.

LEADING and MISLEADING QUESTION

Leading one which suggests to the witness the answer which the examining party desires.

GR not allowed.

EXPT

1. On cross-examination

2. On preliminary matters 3. There is difficulty in getting direct and intelligible answers from witness

4. Unwilling and hostile witness

5. Adverse party

March 7, 2013EVIDENCETRIAL BRIEF v. PRE-TRIAL BRIEF (Rule 18, Sec. 6)-submitted for convenience of the partiesPRE-TRIAL BRIEF (Rule 18, Sec. 6)-filed at least 3 days before the date of the Pre-trial-required by the rules to be submitted, failure to submit has the effect of failure to appear during Pre-trial-for court's consumption-cite laws applicable to the case-anticipate the laws to be used by the other party against you-be ready to present citation that will admit your documentary evidence-name of the witnesses is statedRATIO:the court must be furnished also so that the court may be guided accordingly-date of filing is the date of mailing-make sure that the other party is furnished with such briefIDEAL: simultaneous filing of Pre-trial brief of both parties--so tht parties can be open to discussion...(SEC.6)TRIAL BRIEF -not required-ideally, it should be submitted-to serve as guide: facts, no. of witness to be presented, -list down the witnesses and the nature of their testimony-Lawyers should not be destructed by the questions propounded b the opposing lawyer-For the lawyers' consumption-Determine the facts the other party is going to prove so as to determine who among the witnesses can rebut the same-in both civil and criminal case trial brief is necessary, a counsel has to refer to the trial brief: facts and who to be called-beneficial to both parties: CONTAINS facts you which to prove, list of witness and what is it that you want to achieve, the info.you want to illicit-be consistent in presenting witnesses-in criminal cases, the more it is necessary. It is advantageous, to keep track of the prosecution's progress and to be guided properly. -anticipate what will the prosecution do, nature of its witnesses-not required to give the other party of the trial brief, do not shareForm: no specific form, you can use whateverJUDICIAL AFFIDAVIT RULE-attestation against coaching the witness-holding the q and aEVIDENCE-means, sanctioned by the rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. -it is admissible when it is relevant to the issue and not excluded by the rules-It is relevant when itbis related to the fact in issue What needs to be proven?Facts in issuesJudicial NoticeThere are facts which need not be proven: Facts which the court can take judicial notice.1. Existence and territorial extent of States; 2. Political history, forms of government and symbols of nationality; 3. Law of nations; 4. Admiralty and maritime courts of the world and their seals; 5. Political constitution and history of the Philippines; 6. Official acts of legislative, executive and judicial departments of the Philippines; 7. Laws of nature; 8. Measure of time; and 9. Geographical divisions. (Sec. 1, Rule 129Mandatory judicial notice- mere allegation is necessary-in practice, it is safe that when you allege facts, make a manifestation that the court should take judicial notice of the fact and that the same manifestation be ruled (to be safe)-he who alleges must proveFacts need to be proven-facts in dispute-presumptions: conclusive and desputable (rule 131)CONCLUSIVE-cannot be rebutted or overcome by other evidence Estoppel by deed Estoppel de paisDISPUTABLE-Takers place of an evidence-Sec. 36 of Rule 131 Presumption of innocence-Rule 115, consistent with the existence of human nature; good faith is presumed Consideration in every contractPresentation of witnessesMarch 14, 2013Disputable presumptions-person is innocent -unlawful act done with an unlawful intentNegligence- no intent -law is allegedly based on logic or human experience -Expect the natural consequences of one's own act-management of one's own affair-evidence willfully suppressed is adverse if produced-Thing delivered by another belonged to the latter--misdelivery-obligation delivered up to the DR has been paid-When a thing is sold to a minor--voidable; not of age-contract of sale v. contract to sell--title is retained by the owner (main distinction)-private transactions have been fair and regular-public officers--regular functions or duties in the absence of ill-motive. V. the presumption of innocence (Bill of Rights) ---the presumption of innocence is superior than regularity of performance---the persecution's evidence must stand and fall in the strength or weakness of its evidence -court acted within its jurisdiction --not subject to agreement or acquiescence; conferred by law; even if court of origin has no jurisdiction and SC deems it appropriate to decide on the issue--Rule 40, Sec. 8, par.2 (appeal from MTC to RTC)---the RTC according to its discretion; as if it is originally filed in the RTC-Prior rents have been paid; possession of receipt implies that the obli.has been paid--Possession of latest receipt implies payment of prior obli.HEARSAY RULE-a person can testify only based on his personal knowledge-He cannot testify on facts coming from third party and which does not come from his own perceptionXPNs:1. Dying declarations- under consciousness of an impending death -subject matter: facts and circumstances surrounding his death-Pacqui case--accused; question: Anong nangyari? "Si Pacqui"---not responsive to the question as held by the SCDying declaration v. res gestae--statement made while a startling occurrence is taking place or immediatly subsequent thereto (according to sir--even before the startling occurrence)-the difference lies in the subject matter: startling occurrence and the circumstances surrounding his death----res gestae- "kagulat-gulat"--- e.g. Bus accident--running very fast prior to the accident; "Sabi ko na kasi..."-nature of wound and the circumstance of death must concur: mortal wound v. non-mortal wound; the victim believing that it will cause his death2. declaration against interest--admissible (unlike confession which is favorable--self-serving)3. Act or declaration about pedigree--BEST EVIDENCE RULE-Contents of the document is in question-best evidence to be admitted is the original-Admission of substitutionary evidence XPNs:1. original has been lost2. in the custody of adverse party3. voluminous accounts--fact sought to be est. is only the general result of the whole4. Original is a public record in the custody of the public officerPAROL EVIDENCE-When the terms of agreement have been reduced into writing---no evidence of such terms other than the contents of the written agreement; parties are not allowed to vary the terms of their agreement either by oral or written evidence-limited to parties to the transaction-completeness of contractPRESENTATION OF EVIDENCEOrder of trial1. Prosecution shall present evidence to prove the charge and damages-Filing of criminal action, civil liability is deemed impliedly instituted-defense may present evidence to prove defense and damages as result of the issuance of provisional remediesRATIO: Prosecution must prove the guilt of accused beyond reasonable doubtDemurrer to evidence-tantamount to acquittalCASE: Good land v. Countian 3. Prosecution to present rebuttal evidence4. Sur-rebuttal evidencePRESENTATION OF WITNESS- we are a court of record-witness has to take an oath or affirmation -must testify in open courtProcedure1. Offer before be allowed to proceedDoc.evidence--3 stages: marking, identification and formal offer of evidenceTestimonial-offered the moment called to testify; valid or sufficient grounds to disqualify: incompetent to testify, disqualified by reason of privileges--doctor, priest, lawyer-direct examination- to prove allegations material in the complaint---personal knowledge with use of his 5 senses: possibly perceive and made known to others their perception-cross-examination- best way to get the truth, testing credibility and veracity of statement given in direct, test the possibility or impossibility of testimony, truthfulness of allegations---leeway has to be given to the cross-examinerCross examination1. ordinary witness--other related2. accused-only on matters alleged in the direct-Re-direct--explain the alleged discrepancy or inconsistency in the cross-Re-cross-chance to disprove what the proponent wishes to prove through cross examinationJUDICIAL AFFIDAVIT RULE-Have the witness be educated on what shall transpire, explain the ambiance, how to conduct oneself during cross examination; anticipate possible questions-prohibits lawyers to coach the witness; lawyer must attest that he recorded the q and a and that he never coached the witness how to answer the questions