legal knowledge base

Popular Posts

Jul 16, 2008

- plaintiff’s duty to move ex parte that the case be set for trial
- WHEN: after the last pleading (normally a reply) has been served, or the period to file it has expired (10 days if reply, 15 days if answer)
- held on a date separate from that of the trial on the merits

Sec. 2: Nature and Purpose
  1. amicable settlement or other alternative modes of dispute resolution
  2. simplification of issues
  3. amendments to the pleadings
  4. stipulations or admissions of facts and of documents
  5. limitation of the number of witnesses
  6. preliminary reference of issues to a commissioner
  7. proprietary of rendering judgment on the pleadings, or summary judgment, or dismissing the case if there is a ground
  8. suspending the proceedings
  9. other matters that would ensure a speedy disposition of the case
- notice of pre-trial served on counsel, or on the party who has no counsel (sec. 3)
- counsel will notify his client; if he does not, he will be subject to administrative disciplinary action
- parties are required to appear
  • valid cause
  • representative with authority to:
  • enter into amicable settlement
  • submit to alternative modes of dispute resolution
  • enter into stipulations or admissions of facts and of documents
NOTA BENE: Authority of the representative need not be in writing if it is established by competent evidence or subsequently ratified by the party concerned.

Q: What if the party is a corporation, can the president authorize another person to appear in behalf of the corporation?
A: The president’s authorization is not sufficient. If party is a corporation, the authority must be made with an appropriate resolution by its board of directors.

Q: Is it sufficient to appear as authorized representative?
A: No, because the authorization must be complemented by a showing of a valid cause for non-appearance of the party.

Q: What if no one appeared during the trial, not the defendant or his counsel and not the plaintiff? Only the plaintiff’s counsel appeared but he does not have authority to represent his client.
A: It is proper to declare the plaintiff non-suited and the court may dismiss the case without motion by the defendant.

Q: What is the remedy of the plaintiff?
A: He can appeal from the order of the dismissal by ordinary appeal. The order is already final and not interlocutory.

Q: What is the effect of defendant’s non-appearance during pre-trial?
A: The court will allow the plaintiff to present evidence ex parte and render judgment based on such evidence presented. Defendant is not technically “in default” because no party can be held in default after he has filed his pleading, but the effect is substantially the same in that the defendant is no longer allowed to actively participate during the proceedings. (Sec. 5)

Q: What is the remedy of the defendant?
A: He can file a motion for reconsideration without need for affidavits of merits regarding fraud, accident, mistake or excusable negligence (FAME) because these grounds are already raised in his answer. If still denied, he can resort to certiorari under Rule 65 for grave abuse of discretion amounting to lack or excess of jurisdiction.

Sec. 6: Pre-trial Brief
- WHEN: at least 3 days before the date of pre-trial
- mandatory duty of parties to file it with court and serve it to the adverse party; failure to file it will result in plaintiff declared non-suited or ex parte proceedings against defendant, whichever may be the case
  • statements expressing their willingness to submit to amicable settle or other alternative modes of dispute resolution
  • summary of admitted facts and proposed stipulation of facts
  • issues to be tried or resolved
  • documents or exhibits to presented and purpose
  • manifestation that they have availed of or intended to avail of discovery procedures or referral to commissioners
  • number and names of witnesses and substance of their testimony
- after pre-trial, court shall issue an order, which explicitly define and limit the issues to be tried


Copyright © Scire Licet | Powered by Blogger
Design by Duan Zhiyan | Blogger Theme by