Pre-Trial

1. Concept of pre-trial

2. Nature and purpose

a. Nature

A pre-trial mandatory in any action and when a party fails to appear he may be non-suited or considered as in default. (Phil. Pryce Assurance Corp. Vs. CA, 48 SCAD 366, 230 SCRA 164 (1994).

Under the new rule, a similar failure of the defendant shall be cause to allow plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof; no need to declare the defendant in default.

b. purpose – the court shall consider

1. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

2. The simplification of issues;

3. The necessity or desirability of amendments to the pleadings;

4. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

5. The limitation of the number of witnesses;

6. The advisability of a preliminary reference of issues to a commissioner;

7. 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;

8. The advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action.

3. Notice of Pre-trial

The Notice of Pre-Trial shall be served on counsel or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him.

1. The previous rule that notice of the pre-trial must be served separately upon the party affected thereby and his counsel on record (Golden Flame Sawmill vs. CA, 60 SCAD 336, 243 SCRA 272 [1995]) is now modified by the new rules which adopts the doctrine in Taroma vs. Sayo, 67 SCRA 508 [1975], that notice to the lawyer alone is enough, provided he is directed to serve the notice to the client, and to warn him that he or a special agent must be present during the pre-trial, otherwise, he may be non-suited (if plaintiff) or declared as in default (if defendant).

(Taroma vs. Sayo, 67 SCRA 508 [1975]).

2. The rule now charges the counsel with the duty of notifying the part represented by him.

4. Appearance of parties; effect of failure to appear

a. Appearance of parties

It is the duty of the parties and their counsel to appear at the pre-trial, unless the party constitutes a representative fully authorized in writing to (1) enter into an amicable settlement, (2) to submit to alternative modes of dispute resolution, and (3) to enter into stipulations or admissions of facts and of documents.

1. Amicable settlement (Sec. 1 [a]) cannot be made by the lawyer without a special power of attorney from his client giving him the authority. (Section 23, Rule 138, Rules of Court).

2. If the party is a corporation, the special agency must be made by Resolution of the Board of Directors.

b. Effect of failure to appear

It is the duty of the parties and their counsel to appear at the pre-trial, unless the party constitutes a representative fully authorized in writing to (1) enter into an amicable settlement, (2) to submit to alternative modes of dispute resolution, and (3) to enter into stipulations or admissions of facts and of documents.

1. Amicable settlement (Sec. 1 [a]) cannot be made by the lawyer without a special power of attorney from his client giving him the authority. (Section 23, Rule 138, Rules of Court).

2. If the party is a corporation, the special agency must be made by Resolution of the Board of Directors.

5. Pre-trial brief; effect of failure to appear

1. to be filed at least three (3) days before the date of pre-trial which shall contain the following:

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.

The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec. 6, Rule 18, Rules of Court). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte.

The dismissal of a complaint for failure to file a pre-trial brief is discretionary on the part of the trial court (Ramos vs. Sps. Lavendia, GR No. 176706, October 8, 2008).

6. Distinction between pre-trial in civil case and pre-trial in criminal case

1. The pre-trial in a civil case is set when the plaintiff moves ex-parte to set the case for pre-trial (Sec. 1, Rule 18, rules of Court). The pre-trial in a criminal case is ordered by the court and no

motion to set the case for pre-trial is required from either the prosecution of the defense (Sec.

1, Rule 118, Rules of Court).

2. The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). In a criminal case, the pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. (Sec. 1, Rule 118, Rules of Court).

3. The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective (Sec. 2[a], Rule 118, Rules of Court). The pre-trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118, Rules of Court).

4. In a civil case, the agreements and admissions made in pretrial are not required to be signed by both the parties and their counsels. Under the Rules of Court, they are instead to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18, Rules of Court).

However, AM No. 03-1-09-SC dated July 13, 2004 now requires the proceedings 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.

In a criminal case, there is a stricter procedure required. All agreements or admissions made or entered during the pretrial 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, Rules of Court).

5. The sanctions for non-appearance in a pretrial are imposed upon the plaintiff and the defendant in a civil case (Sec. 4, Rule 18, rules of Court). The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118, Rules of Court).

6. A pre-trial brief is specifically required to be submitted in a civil case (Sec. 6, Rule 18, Rules of Court). A pretrial brief is not specifically required in a criminal case.

7. Alternative Dispute Resolution

At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu, Davao City and other places where Philippine Mediation Center Units may be further organized and designated (Administrative Circular No. 20 -2002, March 24, 2002; Administrative Circular No. 50-2005, April 26, 2005).

J. Intervention

1. Requisites for intervention

1. There must be a motion for intervention filed before rendition of judgment by the trial court. A motion is necessary because leave of court is required before a person may be allowed to intervene.

2. The movant must show in his motion that he has a (1) legal interest in (a) the matter in litigation, (b) the success of either of the parties in the action, or (c) against both parties;

3. That the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof (Sec. 1, Rule 19); and

4. That the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. v. CA, GR No. 140058, 1 August 2002; Acenas II v. CA, 247 SCRA 773).

2. Time to intervene

“x x x at any time before the rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.”

1. After judgment by the trial court, it is too late to intervene. So, intervenor is not an indispensable party. Indispensible party can be joined at anytime even on appeal.

2. After decision or levy on execution, it is much too late to intervene. Hence, a third party claimant of property levied on execution cannot intervene. (Bayer Phil. Vs. Agana, 63 SCRA 355 [1975]). His remedy is separate action to vindicate his right. (Rule 39, Sec. 16).

3. Remedy for the denial of Motion to intervene

K. Subpoena

1. Subpoena duces tecum

A process directed to a person requiring him to bring with him books, documents, or other things under his control at a scheduled hearing.

2. Subpoena ad testificandum

A process directed to a person, requiring him to attend and to testify at a hearing or trial of an action, or at any investigation conducted by a competent authority, or for the taking of his deposition.

3. Service of subpoena

1. the subpoena may be issued by:

a. the court before whom the witness is required to attend;

b. the court of the place where the deposition is to be taken;

c. the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or

d. any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines.

2. Under Section 38(2) of BP 129, a subpoena issued by inferior court (MTC) may be served throughout the Philippines, even without certification from the RTC judges.

3. Only a judicial officer and a quasi-judicial officer specifically authorized by law can exercise the power of contempt in relation to subpoena. Other quasi-judicial officers must apply in court to enforce the subpoena issued (Nazareno vs. Barnes, 136 SCRA 57 [1985]).

4. Compelling attendance of witnesses; Contempt

 Indirect Contempt

A person guilty of any of the following acts may be punished for indirect contempt:

1. Xxx

2. Disobedience of or resistance to lawful writ, process, order or judgment of a court, including the act of the person who, after being dispossessed or ejected from any real property b y the judgment or process of any court of competent jurisdiction, enters or attempts or includes another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturb the possession given to the person adjudged to be entitled thereto;

a. For disobedience or resistance to lawful order to be I ndirect contempt:

1) It must appear that such order disobeyed was in fact made by the court;

2) The act forbidden or required to be done must be clearly and precisely defined to leave no doubt as to what is forbidden or required to be done;

3) The order disobeyed or resisted must be lawful;

4) Disobedience must be willful (Ferrer v. Rodriguez, 5 SCRA 854).

5. Quashing subpoena

1. Duces tecum, if it is:

a. Unreasonably oppressive (as when no specific description, in violation of the prohibition against a fishing expedition); or

b. The relevancy of the books, documents or things does not appear; or c. No advance of reasonable cost of production thereof; or

d. Witness fees and kilometrage allowed by the rules where not tendered when the subpoena was served.

2. Ad testificandum – if witness is not bound thereby or if the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served.

3. Deposition – if no proof of service to take deposition.