2-procedure in trial courts - atty. lazatin presentation

Preliminary Conference and

Trial on the Issues

Rules 22 and 24

Atty. Victor P. Lazatin

MembersHon. Roberto A. AbadHon. Raul Bautista VillanuevaHon. Selma P. Alaras

• Hon. Caridad Walse-Lutero• Hon. Jose Lorenzo R. Dela

Rosa• Hon. Maria Rowena Modesto

San Pedro• Hon. Marjorie T. Uyengco-

Nolasco• Hon. Barbara-Aleli H. Briones

Consultants:• Atty. Victor P. Lazatin• Atty. Vicente M. Joyas• Atty. Laurence Arroyo• Atty. Roberto Mendoza• Atty. Emily Manuel

Technical Working Group

OUTLINE

I. Preliminary Conference (Rule 22)

II.Trial of Issues(Rule 24)

INITIATORY PLEADING

SUMMONSANSWER/REPLY/

OTHER PLEADINGS

JUDICIAL AFFIDAVITS AND DOCUMENTARY

EVIDENCESec. 22.2

TERMS OF REFERENCE

Sec. 22.4

PRELIMINARY CONFERENCE

Secs. 22.5-22.9

TRIAL OF ISSUES

JUDGMENT

APPEAL EXECUTION

OVERVIEW

`

Rule 22

Rule 24

JDR(Failed)

I. PRELIMINARY CONFERENCE

POLICY OBJECTIVES

1. Require parties to make a full disclosure of known facts and to submit the affidavits and documents that evidence their claims (GOAL: To enable the court to accurately identify the issues)

2. Treat litigations as a collective effort (not adversarial) to search for truth and to render justice to all


POLICY OBJECTIVES

3. Empower the judge to take a direct role in examining the witnesses

4. Efficient use of the court’s time without sacrificing quality—Parties/Counsel to do certain things such as (1) Drafting TOR; and (2) Drafting Decision

5. Raise level of professionalism of court and counsel

I. PRELIMINARY CONFERENCEKEY FEATURES

1. Mandatory disclosure of evidence (Sec. 22.2) Judicial Affidavit Rule (JAR): Judicial Affidavit as Direct

testimony of a witness Documents and object evidence attached and

marked as Exhibits C, C-1, C-2, and so on (Complainant), Exhibits P, P-1, P-2, and so on (Plaintiff or Petitioner), Exhibits R-1, R-2, R-3, and so on (Respondent), Exhibits D, D-1, D-2, and so on (Defendant) in the Judicial Affidavit shall be deemed offered and admitted **

Reply Judicial Affidavits on matters not touched upon by initial Judicial Affidavit within 15 days from receipt of adverse party’s Judicial Affidavits.

** Subject to exclusion / cross-examination


KEY FEATURES

2. Use of discovery procedures (Sec. 22.3)3. Terms of Reference (Sec. 22.4)4. Raffle to a Different Branch/Joint Motion to Retain

JDR Judge (Sec. 22.2)5. Appearance of parties (Sec. 22.6)

Non-appearance excused only for valid cause shown or if represented by another fully authorized to act


KEY FEATURES

4. Decision by default (Secs. 22.7 to 22.8) For failure to appear at the scheduled preliminary

conference, decision on the other party’s claims will be based solely on the evidence already submitted

5. Matters to be taken up (Sec. 22.9)

Terms of Reference

TERMS OF REFERENCE

I. Summary of admitted facts

II.Summary of totality of facts that the evidence (Petitioners’ and Respondents’) appear to have established

III.Statement of factual issue(s)

IV.List of witnesses

V.Statement of actual or potential legal issues that the case presents

CONTROLS SCOPE OF

TRIAL

Terms of Reference (“TOR”)

A. If both parties submit B. If Petitioner does not submit

PROCEDURE

PETITIONER SUBMITS DRAFT TOR

15 DAYS

RESPONDENT SUBMITS Draft

COMMENT

15 DAYS

COURT FINALIZES TOR

COURT TO DIRECT RESPONDENT TO

SUBMIT DRAFT TOR

COURT FINALIZES TOR ON THE BASIS OF

RESPONDENT’S DRAFT

MATTERS TO BE TAKEN UP AT THE PRELIMINARY CONFERENCE

Determine (in consultation with the parties and their counsel) if there is a need to make changes in the contents or wordings of the Terms of Reference. If yes, the court shall enter those changes on the face of the documents.

If a party insists that the court try an excluded issue = included, provided such party makes a deposit of P10,000-50,0000 for court costs.

MATTERS TO BE TAKEN UP AT THE PRELIMINARY CONFERENCE

Final attempt to persuade the parties to settle their disputes amicably.

The court shall summarize the arrangements in the Preliminary Conference and issue an Order of Trial, copy furnished the parties.

May render judgment or cause dismissal of action should a valid ground for the same exists. If evidence is required for adjudicating a ground for dismissal, court shall set case for reception of such evidence.

ORDER OF TRIAL

Fix order in which issues are to be tried

Identify witnesses who need to be present and testify on such issues

Set specific dates for reception of evidence

Determine whether regular or simple trial

Witness exemption from face-to-face examination—

(1) Rule on Examination of Child Witness; and (2)one who is mentally,

psychologically, or physically challenged or disadvantaged in a

face-to-face confrontation

Trial of the Issues and not Plaintiff’s or

Defendant’s entire case

II. FACE-TO-FACE TRIAL

POLICY CONSIDERATIONS

1. Promote a non-adversarial environment2. Give the judge a more active role in the proceedings3. Issue-based examination of witnesses and presentation

of evidence4. Equal time for witnesses from opposing sides to give

testimony and reply to each other immediately 5. Avoid unnecessary delays (e.g.,objections,

postponements, etc.)


WHAT IT REQUIRES (Secs. 24.3, 24.4,24.5, 24.6)

a) Court shall actively examine and determine the truthfulness of the judicial affidavits;

b) Witnesses from all contending sides shall appear together and simultaneously swear to the truth of their respective testimonies;

c) Witnesses shall sit face-to-face around the table in a non-adversarial environment and answer questions from the court and the parties’ counsel respecting the factual issue under consideration;



d) The court shall initiate the inquiry into each factual issue strictly in the sequence provided in the Order of Trial although such inquiry may cover two or more closely related issues;

e) Witness or witnesses may testify on one or more issues in accordance with the Order of Trial;



f) Only one person at a time shall speak during the trial and always with prior permission from the court which shall take steps to ensure that the person who speaks is identified for the record; (grounds: rules of civility/courtesy);

g) Witnesses shall address their answers to the examining judge or counsel;



h) Witnesses shall not pose questions to the other witnesses relating to their testimonies but shall be given equal opportunity and equal time to respond to the same; and

i) Each party shall have take turns to cross examine, redirect, and re-cross the witnesses.

Not Face-to-Face trial (Sec. 24.10) 1. Rule on Examination of Child Witness; and2. A person who is mentally, psychologically, or physically challenged, or has a similar condition that puts him at a disadvantage in a face-to-face confrontation


KEY FEATURES

1. Language used during trial (Sec. 24.17) English or Filipino If there is language difficulty, conducted in a dialect

known to him with interpreter. It is the recording of the actual answers (not the English

or Filipino translation), which will be the official and binding testimony of the witness.


KEY FEATURES

2. Exclusion of disqualified witness or inadmissible testimonies and exhibits from judicial affidavits

before examination (Sec. 24.4) If granted, excluded answer will be placed in brackets

under the initials of proper court personnel. If exhibits to be excluded are voluminous, motion

in writing before trial. Without prejudice to a tender of excluded evidence.


KEY FEATURES

3. Two-phase examination of witnesses (Sec. 24.7)First: Examination by the Court [Sec. 24.7(a)]Second: Examination by Counsel [Sec. 24.7(g)]

4. Examination of Expert Witnesses (Sec. 24.11)•Face-to-Face also•with leave of court, expert may ask questions

directed to the other party’s expert witness

II. FACE-TO-FACE TRIALKEY FEATURES

5. Intransferrability of settings (Sec. 24.14) Except on grounds of fortuitous event or serious illness

otherwise waiver of appearance (parties & counsel).

No motion for postponement or resetting on ground of serious illness shall be granted unless a medical certificate is presented stating illness of such gravity to prevent from attending at the scheduled hearing.

Judge may require physician to appear or order another physician either government employed or retained by adverse party to verify the truth of the certification.

If false, certifying physician shall be held in contempt of court; also the party & counsel, to the extent possible


KEY FEATURES

6. Consequences of failure to appear at trial (Sec. 24.15) Counsel = waiver, trial will proceed, witnesses

examined in the usual course as if procured by the court Witness = judicial affidavit expunged

7. Regular v. Simple Trial Schedules

8. Memorandum, oral argument and judgment (Sec. 24.13)

#1MEMORANDA

(15 days)

#2ORAL ARGUMENT(10 days from #1)

#3WRITTEN DECISION

(90 days from #2)

REGULAR TRIAL• Issues are

complex or numerous

• Several witnesses or numerous pieces of evidence

• 1 or more hearing dates

#1ORAL ARGUMENT

(right after hearing)

#2ORAL JUDGMENT

(right after #1)

#3DRAFT DECISION

BY WINNING PARTY

(15 days from #2)

#4WRITTEN DECISION(30 days from #2)

SIMPLE TRIAL**

• Issues are simple and few

• Limited witnesses/evidence

• ONE-TIME face-to-face hearing

vs.

**Conversion to Regular trial if it turns out to be complex

TWO-PHASE EXAMINATIONBY THE COURT

No particular sequence on the issues/related issues at handCourt may direct question to one or more of the witnesses from contending sidesOther witnesses from the same side may supplement, clarify or qualify answer of first witnessEqual time and opportunity to replyAllow divergent exchanges provided new facts or new arguments are introduced; stop when repetitive/judge is sufficiently clarifiedCOURT MAY SUMMARIZE respective positions, then move on

BY COUNSEL (may examine on the same

issue or related issues in the 1st phase)

Unless court orders otherwise, sequence is:

1. Petitioner’s WitnessCX/RD/RX –on the Judicial

Affidavit & Answer in the 1st phase

2. Respondent’s WitnessCX/RD/RX

3. Other Parties’ WitnessesCX/RD/RX

Counsel may object to questions or move to strike out answers givenCourt shall act on the objections or simply note them

EXAMINATION OF WITNESSES

MR. R answers JUDGE

JUDGE ASKS QUESTION 1 to WITNESS R

JUDGE ASKS QUESTION 2 to WITNESS P

WIT

NESS

PW

ITN

ESS

R

with Court’s permission, MR. P replies

with Court’s permission,MR. R rebuts

with Court’s permission,MR. P rejoins

JUDGE MAY SUMMARIZE

JUDGE MAY SUMMARIZE

MR. P answers JUDGE

with Court’s permission, MR. R replies

with Court’s permission,MR. P rebuts

with Court’s permission,MR. R answers

TABLE OF OBJECTIONS/EXCEPTIONS

TYPE of OBJECTION

OBJECTIONS TO COURT ACTION

Objection as to form

Questions which are perceived as:

1) argumentative; 2) leading;3) multiple;3) repetitive;4) vague; 5) improper characterization;6) confusing; or7) unfair.

The court may:

1) take note; or2) rephrase the question.

EXCEPTIONS – Questions of the Judge OBJECTIONS – Questions of the Counsel **

** May also move to strike out answers given

--simply state the legal grounds for objection w/no further explanation


TYPE of OBJECTION


Objection as to substance

Questions which are perceived to elicit answers that are inadmissible on public policy grounds such as:

1) right against self-incrimination;

2) privileged communication;3) disqualification;4) Statue of Frauds;2) rape shield law;3) bank secrecy laws;4) AMLA non-disclosure rule; or 5) other similar laws or rules.

The court shall promptly rule on such objections.


TYPE of OBJECTION


Objection as to admissibility

Admissibility under the rules governing:

1) best evidence;2) parol evidence;3) conclusion or opinion evidence;4) hearsay evidence;5) irrelevant evidence; or6) character evidence.

The court may simply take note of the exceptions and consider the same when deciding the case.

THANK YOU.

2-procedure in trial courts - atty. lazatin presentation

Documents

preliminary conferencesecs

judicial affidavit rule

initial judicial affidavit

evidence petitioners

object evidence

draft torcourt

direct respondent

drafting decision