Conclusions

1. The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him;

2. He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, p. 327).

Q: When is the rule on laying the predicate inapplicable?

A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party. (Regalado, Vol. II, p. 852, 2008 ed.)

Q: What is the purpose of laying the predicate?

A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him an

opportunity to explain the same. Non-compliance with the foundational elements for this mode of impeachment will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible. (ibid)

Is it possible the deposition can be the testimony of the witness?

Yes, if the witness is more than 100 km from the court, and the witness invokes his viatory right, the deposition is allowed to take the deposition and the court can consider the deposition the testimony of the witness.

If a deposition has already been given, is it possible that his deposition will be treated as his testimony in open court?

That is also possible. If the deponent, if called upon by the court to testify, will invoke his Viatory Right.

Where the witness resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, the witness may invoke that he be not allowed to testify (Viatory Right). The witness can ask the court that he be excused from giving his testimony in open court. Even if the court issues a subpoena, the witness may ignore such subpoena. He cannot be cited in contempt for disobedience thereof. The remedy of the court is to allow the taking of the deposition, and the court can then consider the deposition taken as his testimony. In other words, the fact that a deposition has already been taken from a person does not mean that the said person will be excused thereafter from going to court in order to be a witness. That is possible only in exceptional cases mentioned in Rules, one of them being when the witness invokes his Viatory right. Or even if there is no viatory right, if the witness/deponent is physically

incapable of going to court in order to testify, the court can consider the deposition previously given as his testimony in court.

TRIAL

Can a trial court decide a case properly and validly if the court does not conduct a pre-trial or a trial for that matter?

Yes. Although pre-trial is mandatory and though trial must be had due to triable issues, the court can just skip these stages and render judgment. Ex. Judgment by default, judgment on the pleadings.

Judgment by default – it is a judgment on the merits, no trial and pre-trial is conducted. Under Rule 9, if the court declares defendant in default since he did not file an answer, one of the options is to immediately render a judgment without requiring plaintiff to present his evidence ex parte.

Supposedly the defendant filed his answer, can we still do away with the trial?

Yes, we follow the special kinds of judgments whenever an answer is filed as found under the rules.

Special judgments where an answer is filed by defendant

There can be a judgment on the pleadings if the answer does not raise any issue at all, or even admits the allegations in the pleadings. There need to be no pre-trial and trial. The plaintiff can move right away for a judgment on the pleadings.

Judgment based upon a compromise. Parties entered into a compromise agreement during pre-trial, the court concurs the validity of the compromise agreement, the court will render a judgment based upon compromise.

If you will notice that in the deliberation of the Rules on certain special kinds of judgments, like judgment on the pleadings, demurrer to evidence or summary judgment, the core element of these special kinds of judgments is that if there is a trial conducted by the court, it is not a full blown trial.

Summary Judgment– not a full-blown trial

Demurrer to Evidence– not a full-blown trial, only ½ of the trial contemplated under Rule 30. Defendant does not present evidence.

But in instances where there are genuine triable issues, and the parties cannot agreed to the facts that should be given to the court so it can decide the case properly, the court will have to conduct a trial. The parties are then given the

opportunity to make use of evidentiary rules, which is not required before trial. There is no offer of evidence during pre-trial. At most, if there is evidence presented during pre-trial, it is only for marking them as exhibits. In a pre-trial brief, the parties just identify the documental evidence, the real evidence and testimonial evidence in the form of affidavits. What the parties doe in pre-trial is to mark these as exhibits.

The trial of the case shall govern the pre-trial order. Only the issues specified in the pre-trial order will be the order of trial.

But this Rule is not strict as the Rules allow amendment to conform to evidence. If we follow strictly the Rules and we do not allow amendment to conform to evidence, then the only issues specified in the pre-trial order will be tried.

If there are genuine triable issues, can the court do away with the trial?

Yes. The parties can help the court avoid a trial if the parties stipulates on facts that are in dispute. If the parties submit to the court complete stipulation of facts, that the court need only review the law applicable, then the court can render a decision on the case. The court need not conduct a trial. Trial is only a trial of factual issues. It cannot be a trial of legal issues. This is because the court is presumed to know the law applicable to a given state of facts. The trial contemplated under Rule 30 is a trial of facts in dispute. But if the parties decide that these facts are no longer disputed, and they manifested to the court that they agree fully to the existence of these facts, then the trial may be avoided. The next stage will just be the rendition of judgment.

In civil procedure, although there is a section in Rule 30 on written stipulation on facts, the court liberally allows verbal stipulations. Example, during the trial conference, everything stipulated upon may be done verbally.But since the

pre-trial conference is part of the court proceedings, everything is recorded by the court stenographer. The stenographer will transcribe the records and what the court will readily decide that there has been a stipulation of facts between the parties.

The order of trial in Rule 30 is the general rule. The order of trial follows the sequence of argumentation of pleadings. The affirmative side, the plaintiff, will first present his side, and then the negative side, the defendant, will set forth his defenses. Once the defendant is done presenting his evidence, then the court may allow parties to submit rebuttal evidence or even sur-rebuttal evidence. But the court does not allow the presentation of rebuttal evidence or sur-rebuttal evidence, the trial will end after the defendant has rest his case.

Can the court terminate the case after the defendant rests?

Rule 30 gives an option to the judge, to require the parties to submit their respective memoranda to help the court in arriving at a decision.

Does failure to submit memoranda when required to do so result in dismissal of the case?

Yes, under Rule 17, for failure to obey lawful court orders.

The order of trial can be changed. If the court requires defendant to present evidence ahead, then the reversal of the order is had. If the defendant had set up the affirmative defense of, for example payment, then the order is reversed. Why is this only issue to be decided by the court? Should not the court first decide on whether or not the loan has really been

extended by the plaintiff to the defendant? In our Rules, if the defendant sets up only an affirmative defense, that constitutes a hypothetical admission to the allegations contained in the complaint. That is found in Rule 6. So if the defendant hypothetically, for purposes of trial, that the defendant incurred a loan, then there really is no need for the plaintiff to prove the existence of the loan. It is now the duty of the defendant to show that the loan had been paid, so the order of trial is changed. Thus, the defendant is allowed to present his evidence first. Thereafter, the plaintiff does not find it necessary to file rebuttal evidence, the court will consider the case as submitted for decision.

Generally, when a trial is conducted by the court, it is the judge appointed in that sala that should sit in the proceedings.

But, there are certain instances under Rule 30 when the judge may excuse himself from presiding the case. They are all mentioned in the rules.

One is when the parties so agree, when the parties appoints a commissioner for presentation of evidence. Another is, when the branch clerk of court, upon delegation of the judge, may sit when the parties agree to an ex parte presentation of evidence. However, in these instances, it is still the judge who will have to write and sign the decision.

There are 2 rules concerned with how a court in a civil case will conduct a trial.

1. Rule on consolidation and severance of cases 2. Trial by commissioner

Distinguish consolidation from severance.

A:

Consolidation Severance

Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31).

Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

Consolidation:

1. several cases

2. similar issues, common question of fact 3. pending in the same court

What are the requisites for consolidation?

A:

1. Actions involving a common question of law or fact; and

2. There must be at least 2 actions pending before the same court (Sec.1, Rule 31).