CAPÍTULO II: ANTECEDENTES Y MARCO TEÓRICO MARCO TEÓRICO
2 ANTECEDENTES Y MARCO TEÓRICO
2.6 EL PAPEL DEL CREATIVO EN EL PROCESO AUDIOVISUAL AUDIOVISUAL
After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.
• What does last pleading mean?
o The answer, or the reply, depending on the case
• When must the plaintiff move for pre-trial?
o 2004 Guidelines say that it must be set within 5 days after the last pleading has been filed.45
o If the plaintiff fails to move for pre-trial, it is the duty of the clerk of court to issue a notice of pre-trial.
Sec. 2. Nature and purpose.
The pre-trial is mandatory. The court shall consider:
(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.
• What’re the purposes of pre-trial?
o Amicable settlement
45 Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a motion to dismiss and instead allege the grounds thereof as defenses in the Answer, in conformity with IBP-OCA Memorandum on Policy Guidelines dated March 12, 2002. A copy of the summons is hereto attached as Annex "A;" and
1.2 The court shall issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five days from the filing of the answer.1 A copy of the order shall be served upon the defendant together with the summons and upon the plaintiff.
Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference.If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.
o Expedite proceedings
• Before actual pre-trial, the judge will refer the parties to the PMC mediation unit for mediation if available.46
o The parties will pay the fees for the mediator.
o The pre-trial proceedings are suspended for 30-60 days.
• If mediation fails, preliminary conference will be set with the branch COC.47 o The preliminary conference is like a mini pre-trial.
o In the preliminary conference, the branch COC shall explore the possibility of compromise, ascertain admission of facts and due execution & genuineness of the documents, etc.
Segue: is there preliminary conference in the CA and in SC?
• Yes. See Rule 48 and Rule 56, both for cases on appeal and original cases.
Take note that in ejectment cases, there is preliminary conference, instead of pre-trial. But pre-trial rules apply suppletorily.
• So in Macasaet v Macasaet (2004), the SC allowed the party to be represented by his counsel via a SPA even if the rules on ejectment cases were silent about it.
• After the preliminary conference, the judge will study all the pleadings and try to reduce and limit the issues.
o The judge, with all tact, patience, impartiality and with due regard to the rights of the parties, shall try to persuade them to settle.48
o He talks to counsel and parties first. If it fails, he will talk to the parties only.
• If there is still no settlement, the judge shall among others:
o Adopt the minutes of the preliminary conference o Scrutinize every single allegation of the complaint
o Define and simplify the factual and legal issues from the pleadings.
o Ask parties to agree on specific trial dates, keeping in mind two rules:
One-day examination of witness rule – witness has to be fully examined in 1 day only, if possible
Most important witness rule – judge will determine the most important witnesses to be heard and limit the number of witnesses
o Pre-mark the evidence (if not done during preliminary conference)
Important: if evidence is not pre-marked during pre-trial, then it can no longer be presented.
Same rule with witnesses: witnesses not named during pre-trial will not be allowed to testify
• Exception to evidence and witnesses: if the court allows in the interest of justice or if newly discovered
Sec. 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.
• Notice is served:
o On the counsel,
o If no counsel, on the party
• It is incumbent on the lawyer to advise his client about a scheduled pre-trial, and the former’s failure to do so constitutes negligence which binds the latter. (Diaz v CA, 2006)
46 At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the PMC mediation unit for purposes of mediation if available. If mediation fails, the judge will schedule the continuance of the pre-trial conference.
47 Before the continuance, the Judge may refer the case to the Branch COC for a preliminary conference to assist the parties in reaching a settlement, to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider such other matters as may aid in its prompt disposition
48 Before the continuation of the pre-trial conference, the judge must study all the pleadings of the case, and determine the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues. The judge should not allow the termination of pre-trial simply because of the manifestation of the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial. He must also be mindful that there are other important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.
7
The Judge with all tact, patience, impartiality and with due regard to the rights of the parties shall endeavor to persuade them to arrive at a settlement of the dispute
• There are two dates in the notice:
o Date of preliminary conference o Date of pre-trial itself
Sec. 4. Appearance of parties.
It shall 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 therefor 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.
• Who has to go to the pre-trial?
o The parties, and o Their counsel
• A representative can go but he needs a written SPA authorizing him to:
o Enter into an amicable settlement,
o Submit to alternative modes of dispute resolution
o Enter into stipulations or admissions of facts and documents Sec. 5. Effect of failure to appear.
The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.
• What if the plaintiff doesn’t show up?
o Case dismissed with prejudice, unless otherwise ordered by the court.
• What if the defendant doesn’t show up?
o Plaintiff may be allowed to present his evidence ex parte.
o The defendant is not in default as he already filed an answer.
o Seen in Alcaraz v CA (2006), where the defendant and his lawyer did not appear during pre-trial. Court said that even if they were sick, it was not an excuse because there was no medical certificate (so it wasn’t justified) and the lawyer could have been replaced by other lawyers in his firm.
o Inasmuch as the defendant has filed an answer, the plaintiff may utilize admissions made by the defendant in his answer.
Compare: In ejectment cases (rule 70), failure of defendant to show up in the preliminary conference will allow judgment to be rendered immediately.49
• What if the client is present, but the lawyer isn’t there?
o No adverse effect.
o Lawyer to be reprimanded.
• What if the lawyer is the attorney-at-fact of the plaintiff also, and he didn’t attend pre-trial?
o Dismissed with prejudice..
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
49 Sec. 8. Preliminary conference; appearance of parties.
Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant.
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.
• What is the effect of failure to file the pre-trial brief?
o Same as failure to appear at the pre-trial.
Sec. 7. Record of pre-trial.
The proceedings 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, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. 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.
• The pre-trial order is the bible of the trial. It:
o Binds the parties
o Limits the trial to matters not disposed of o Controls the course of action during trial
• The judge will issue it within 10 days from the end of pre-trial.
o Or, the judge can dictate the pre-trial order in open court in the presence of the parties and their counsel. It will be printed and given to them afterward.50
• Difference between criminal and civil pre-trial:
o If prosecution is absent, pre-trial will be re-scheduled.
o If accused is absent, prosecution cannot present evidence ex-parte because it will violate the accused person’s right to confront witness.
Accused will either be arrested to compel him to appear or bail will be forfeited.
o If private complainant absent, no dismissal of case since he is merely a complaining witness UNLESS there is repeated absence on his/her part.
o The only similarity is that when the counsel is absent, he will be sanctioned.
o For admissions of the accused to be taken against him, it must be in writing and signed, by both the accused and his counsel.51
No similar provision in civil cases.
• Judicial dispute resolution (AM 04-01-12-SC) o There is now JDR in Makati and in Manila.
o Who is a JDR judge?
He is the one who acts as a mediator, conciliator, and independent evaluator in the stage between the filing of the complaint and before pre-trial.
Unless the parties consent to continue with the JDR judge, it is mandatory that there will be a new raffle – and the new judge who will hear, try, and decide the case is the trial judge.
RULE 19 INTERVENTION