K3. Pre-Trial (Pre-Trial Brief)

Question 1

When filed

Answer 1

The parties shall file their respective pre-trial briefs in such a manner as shall ensure their receipt thereof at least three (3) calendar days before the date of the pre-trial. (Sec. 6, Rule 18, ROC, as amended)

Question 2

Effect of Failure to file a Pre-trial Brief

Answer 2

It shall have the same effect as failure to appear at the pre-trial. (Sec. 6, Rule 18, ROC, as amended)

1. If plaintiff fails to file a pre-trial brief- such failure shall be a cause for dismissal of the action;
2. If defendant fails to do so- such failure shall be a cause to allow the plaintiff to present his evidence ex parte.

NOTE: The dismissal of the complaint for failure to file pre-trial brief is discretionary on the part of the trial court. (Ramos v. Sps. Lavendia, G.R. No. 176706, 08 Oct. 2008)

Question 3

Pre-trial Order

Answer 3

An order issued by the court upon termination of the pre-trial. It shall be issued within 10 calendar days after termination of the pre-trial. (Sec. 3, Rule 18, ROC, as amended

Question 4

Postponement of presentation of the parties’ witnesses

Answer 4

GR: Prohibited

XPNs:

1. Acts of God;
2. Force majeure; or
3. Physical inability of the witness to appear and testify.

The party who caused the postponement is warned that the presentation of its evidence must still be terminated within the remaining dates previously agreed upon. (Ibid.)

Should the opposing party fail to appear without valid cause, the presentation of the scheduled witness will proceed with the absent party being deemed to have waived the right to interpose objection and conduct cross-examination. (Ibid.)

Question 5

Q: Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence of the parties and their counsel, reciting what had transpired and defining three (3) issues to be tried.: a. If, immediately upon receipt of his copy of the pre-trial order, plaintiff’s counsel should move for its amendment to include a fourth (4th) triable issue which he allegedly inadvertently failed to mention when the judge dictated the order. Should the motion to amend be granted? b. Suppose trial had already commenced and after the plaintiff’s second witness had testified, the defendant’s counsel moves for the amendment of the pre-trial order to include a fifth (5th) triable issue vital to his client’s defense. Should the motion be granted over the objection of plaintiff’s counsel? (2009 BAR)

Answer 5

a. YES. The motion to amend the pre-trial order should be granted. The contents of the pre-trial order may be modified before trial to prevent manifest in justice. For the court to refuse consideration of a triable issue would result in a manifest injustice.

b. NO. The motion should not be granted. The contents of the pre-trial order shall control the subsequent course of action unless modified before trial to prevent manifest injustice. Here trial was already on-going. Hence the amendment of the pre-trial order to add an issue may no longer be made.

Question 6

DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL
CASE AND PRE-TRIAL IN A CRIMINAL CASE

Answer 6

Civil Case1: The branch clerk of court shall issue a notice of pre-trial after the last responsive pleading has been served and filed. (Sec. 1, Rule 18, ROC, as amended)

Crim Case1: It is ordered by the court and no motion to set the case for pretrial is required from either the prosecution or the defense. (Sec. 1, Rule 118, ROC, as amended)

Civil Case2: The notice of pre-trial shall be issued within 5 calendar days from the filing of the last responsive pleading. (Ibid.)

Crim Case 2:The pre-trial is ordered by the court after arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused. (Ibid.)

Civil Case 3:It considers the possibility of an amicable settlement as an important objective. (Sec 2(a), Rule 18)

Crim Case 3:It does not include the possibility of amicable settlement of criminal liability as one of its purposes. (Ibid.)

Civil Case 4:Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes. (A.M. No. 03-1-09-SC)

Crim Case 4: All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused. (Sec. 2, Rule 118, ROC, as amended)

Civil Case 5: Sanctions for nonappearance in a pretrial are imposed upon the plaintiff and the defendant in a civil case. (Sec. 4, Rule 18, ROC, as amended)

Crim Case 5: The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor. (Sec. 3, Rule 118, ROC, as amended

Civil Case 6:It is specifically required to be submitted in a civil case. (Sec. 6, Rule 18, ROC, as amended)

Crim Case 6: It is not specifically required in a criminal case

Question 7

Pursuant to the Judicial Affidavit Rule under A.M. No. 12-8-8-SC

Answer 7

Parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following:

1. Judicial affidavits of their witnesses, which shall take the place of such witnesses’ direct testimonies; and
2. The parties’ documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or defendant. (Sec. 2, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule)