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PRACTICE COURT 1

I. THE LAWYER AND THE LEGAL PROFESSION

A. The Legal Profession

 The legal profession is a branch of the administration of justice. It is a profession whose main
purpose is to aid in the doing of justice according to law between the state and the individual, and
between man and man.
 The legal profession is a form of public service or public trust intimately related to the administration
of justice, in the practice of which pecuniary rewards are considered as merely incidental. It must
signify for its followers a mental and moral setting apart from the multitude – it is a priesthood of
justice (Ledesma vs. Climaco).
 The legal profession is affected with public interest.

B. Who may Practice Law

 Practice of law is any activity in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. Generally, to practice law is to give advice or to
render any kind of service which advice or service requires the use in any degree or legal knowledge
or skill. Hence, the SC declared that a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur, a
lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor are engaged in
the practice of law (Cayetano vs. Monsod).
 It means to exercise or pursue an employment or profession actively, habitually, repeatedly or
customarily.

 Rule 138, Section 1 of the ROC provides:


Section 1. Who may practice law – Any person heretofore duly admitted as a member of the
bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is
in good and regular standing, is entitled to practice law.

 Requirements for Applicants for Admission to the Bar:


Every applicant for admission as a member of the bar must be a citizen of the Philippines, at
least twenty-one years of age, of good moral character, and a resident of the Philippines; and
must produce before the Supreme Court satisfactory evidence of good moral character, and
that no charges against him, involving moral turpitude, have been filed or are pending in any
court in the Philippines. (Rule 138, Section 2)

1. Good moral character


2. Resident of the Philippines
3. 21 years of age
4. Citizen of the Philippines
5. Must produce before the SC satisfactory evidence of good moral character;
6. No charges involving moral turpitude, have been filed or are pending in any court in the
Philippines;
7. Sign the Roll of Attorneys and receive from the clerk of court of court a certificate of
license to practice’
8. Take the Lawyer’s Oath;
9. Must have complied with the academic requirements:
a. Had pursued and satisfactorily completed in an authorized and recognized
university or college which requires for admission the completion of a four (4)
year high school course;

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b.A bachelor’s degree in arts or sciences with Political Science, or Logic, or


English, or Spanish, or History, or economics as a major or field of
concentration; and
c. A four (4) year bachelor’s degree in law with completed courses in civil law,
commercial remedial law, criminal law, public and private international law,
political law, labor and social legislation, medical jurisprudence, taxation and
legal ethics.
10. Pass the bar examinations.

 Continuing Requirements for the Practice of Law:


1. Payments of professional tax;
2. Membership in the IBP;
3. Payment of IBP dues;
4. Good and regular standing;
5. Compliance with the MCLE;
6. Possession of good moral character; and
7. Citizenship.

C. Duty of Attorney to:

1. Client
● A lawyer in the discharge of his professional duties is, in a restricted sense, an agent of his
client, and in such capacity is expected to be vigilant in the prosecution or defense of his
client’s right.
● The relationship the lawyer has with respect to his client is highly fiduciary. Thus, it has been
held that an attorney owes loyalty to his client not only in the case in which he has
represented him but also after the relation of attorney and client has terminated and is not
good practice to permit him afterwards to defend in another case other persons against his
former client under the pretext that the case is distinct from, and independent of the former
case.
● It is the duty of a lawyer at the time of his retainer to disclose to the client all the
circumstances of his relations to the parties, and any interest in or connections with the
controversy, which might influence the client in the selection of counsel.

CANON 14 – A lawyer shall not refuse his services to the needy.

CQNON 15 – A lawyer shall observe candor, fairness and loyalty in all his dealings and
transactions with his clients.

CANON 16 – A lawyer shall hold in trust all moneys and properties of his client that may
come into his possession.

CANON 17 – A lawyer owes fidelity to the cause of his client and he shall be mindful of the
trust and confidence reposed in him.

CANON 18 – A lawyer shall serve his client with competence and diligence.

CANON 19 – A lawyer shall represent his client with zeal within the bounds of law.

CANON 20 – A lawyer shall charge only fair and reasonable fees.

CANON 21 – A lawyer shall preserve the confidences and secrets of his client even after the
attorney-client relation is terminated.

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CANON 22 – A lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances.

2. Court
● As a member of the Bar and an officer of the courts, a lawyer is duty bound to uphold the
dignity and authority of the court to which he owes fidelity according to the oath he has
taken as such attorney, and not to promote distrust in the administration of justice.
● He is by no means allowed to use offensive language in his criticism.

CANON 10 – A lawyer owes candor, fairness and good faith to the court.

CANON 11 – A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.

CANON 12 – A lawyer shall exert every effort and consider it his duty to assist in the speedy
and efficient administration of justice.

CANON 13-A lawyer shall rely upon the merits of his cause and refrain from any impropriety
which tends to influence, or gives the appearance of influencing the court.

3. The Legal Profession


CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession
and support the activities of the integrated bar.

CANON 8 – A lawyer shall conduct himself with courtesy, fairness and candor, toward his
professional colleagues, and shall avoid harassing tactics against opposing counsel.

CANON 9 – A lawyer shall not directly or indirectly, assist in the unauthorized practice of
law.

II. LITIGATION

A. Nature and Concept of Litigation

● Litigation – An action brought in court to enforce a particular right. The act or process of bringing a
lawsuit in and of itself; a judicial contest; any dispute.
● Litigation involves a series of steps that may lead to a court trial and ultimately a resolution of the
matter.
● The process of litigation is actually a series of steps taken to resolve the matter, whether through
negotiations toward a settlement, or a court trial.
● Litigation is a conservator of peace. It not only ends particular controversies, but it also establishes
principles, lessens contention, promotes harmony, confidence and security. Thus, it is a refuge from
violence, aggression and fraud. When impartial tribunals for the determination of controversies were
substituted for the physical force of the parties, it was a great stride in the progress of civilization;
when such tribunals came to be guided by definite rule, the science of jurisprudence had its birth.

B. Scope of Trial

1. In Civil Cases

Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated in
the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;

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(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-
claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense, counterclaim,
cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded
by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses
appear by different counsel, the court shall determine the relative order of presentation of
their evidence.

● The trial of civil cases commences from the time that the plaintiff produces the evidence on
his part and is terminated when the parties have their evidence admitted unless the court
directed the parties to argue or submit their respective memoranda or further pleadings.
● The filing of the basic pleading like a complaint or petition marks the commencement of the
action.

2. In Criminal Cases

Section 11. Order of trial. — The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper case, the
civil liability.
(b) The accused may present evidence to prove his defense, and damages, if any, arising
from the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of justice, permits them to present additional
evidence bearing upon the main issue.
(d) Upon admission of the evidence of the parties, the case shall be deemed submitted for
decision unless the court directs them to argue orally or to submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint or information
but interposes a lawful defense, the order of trial may be modified.

● The trial begins from the time the prosecutor, in behalf of the people of the Philippines,
offers evidence in support of the charges after the accused has entered a plea of not guilty.
The trial is terminated when the introduction of evidence shall have been concluded unless
the court directs the parties to argue orally or to submit memoranda.
● The filing of the information or complaint marks only the commencement of criminal action.

C. Litigation
1. Trial
● Trial is the examination before a competent tribunal according to the laws of the land of the
facts put in issue in a cause for the purpose of determining such issue.

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● Trial is the judicial examination and determination of the issues between the parties to the
action.
● It is the judicial process of investigating and determining the legal controversies between or
among the parties.

Trial Litigation
The process by which the right or remedy The contest in court for purposes of
claimed is determined. enforcing a right or seeking a remedy.

2. Court
 A court is a governmental body officially assembled under authority of law at the
appropriate time and place for the administration of justice through which the state enforces
its sovereign rights and powers.
 It is a board or tribunal which decides a litigation or contest.
 Courts are created either by Constitution or by law.

3. Jurisdiction
 Jurisdiction is the power and authority of the court to hear, try and decide a case.
 Kinds of jurisdiction:
Jurisdiction over the subject matter – The power of a court to hear the type of case that
is then before it. Following this definition, real actions, personal actions or actions
incapable of pecuniary estimation are to be considered a s subject matters.

Jurisdiction over the parties – The legal power of the court to render a personal
judgment against a party to an action or proceeding.

Jurisdiction over the issues – The power of the court to try and decide the issues raised
in the pleadings of the parties.

Jurisdiction over the res – Refers to the court’s jurisdiction over the thing or property
which is the subject of the action.

 Jurisdiction over criminal cases:


i. Jurisdiction over the subject matter;
ii. Jurisdiction over the territory where the offense was committed;
iii. Jurisdiction over the person of the accused.

 Jurisdiction over civil cases:


i. Jurisdiction over the subject matter;
ii. Jurisdiction over the person of the parties, or over the res in case of non-resident
defendant;
iii. The point decided must be in substance and in effect within the issues presented in
the pleadings.

4. Venue
 Venue is the geographical division in which an action is brought to trial, or the place of trial
for a criminal action, a civil action or special proceeding. Stated briefly, venue is the place
where an action must be instituted and tried.
 Venue is an essential element of jurisdiction only in criminal actions. It determines not only
the place where the criminal action is to be instituted, but also the court that has the
jurisdiction to try and hear the case.

Jurisdiction Venue
Authority to hear and determine a case. The place where the case is to be heard or

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tried.
Is a matter of substantive law. Procedural law.
Establishes a relationship between the court Establishes a relationship between the
and the subject matter. plaintiff and the defendant.
Is fixed by law and cannot be conferred by May be conferred by the act or agreement of
the parties. the parties

The parties may stipulate on the venue as


long as the agreement is in writing, made
before the filing of the action, and exclusive
as to the venue.

III. BRIEFING THE CASES

A. Facts of the Case

 The facts describe the events between the parties leading to the litigation and tell how the case came
before the court that is now deciding it.
 Also state who the plaintiff and defendant are, the basis for the plaintiff’s suit, and the relief the
plaintiff is seeking.
 Also include the ruling of the Regional Trial Court on the case and whether the Court of Appeals
affirmed or reversed the decision.

 Sources of Facts
o The client being the person directly involved is more often than not the most fertile source of
information material to his cause.
 After the client’s narration of the facts as he conceives them to be, the lawyer may
now begin to ask questions, not only for purpose of making the narrative cohere but
also to elicit from the client other material facts that may have been omitted. The
occasion also furnishes the attorney the opportunity to test the accuracy of the data
given by the client.
 In the examination of the client, stat with innocuous matters as his personal
circumstances.
 Ask the antecedent facts which gave rise to his coming over for legal advice or
engagement of an attorney’s legal services.
 Have periodic consultation with clients.
o Documents, public and private, are likewise fecund sources of data. Any document having a
material bearing on the case must then be examined by the lawyer.
o Witnesses are also a vital source of information.
 While their names are generally furnished by the client, the attorney handling the
case must not delimit himself to those so named. Efforts should be exerted in
tracking down persons who have knowledge of the facts surrounding the
controversy and, if possible, enlist them into the client’s cause.
o Physical objects

B. Laws Applicable to the Case

 Briefing the case starts with the investigation of the laws relevant to the controversy.
 The lawyer must make a careful search for authorities that will support his theory of his client’s case.
Courts nowadays are governed largely by precedents, and this imposes on he advocate the necessity
of supporting his client’s cause by concrete authorities - cases “on all fours” with or at least analogous
to the case at bar. (Trial Technique and Practice, Generoso V. Jacinto, 1982)

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 Proper preparation of the law involves: (a) the recognition of the various propositions of law
involved, whether for or against the client’s cause of action or defense; (b) the finding of favourable
authorities for one’s cause of action or defense and against the contentions of the opposing party;
and (c) marshalling the jurisprudence into an understandable and convincing whole. The preparation
of the law from the viewpoint of the trial lawyers means the practical application of theoretical
knowledge of the law to a searching analysis of the facts in order to determine the legal questions
involved and to then apply the knowledge obtained in the legal bibliography courses in securing
favourable citations of authority. (Trial Technique and Practice, Generoso V. Jacinto, 1982)

C. Theory of the Case

 Theory of the case may be used in either of 2 senses:


i. As denoting the pleader’s conception of the condition of the facts on which he bases his
cause of action, and
ii. As denoting his conception of the particular rights which the defendant’s conduct has
infringed, or conversely, the character of the remedy which he intends to pursue.
 In either case, the theory of the case is a comprehensive correlation and systematic arrangement of
the facts and principles with the view of securing a judgment of the court in favor of the party
presenting it.
 A comprehensive and orderly mental arrangement of principle and facts, conceived and constructed
for the purpose of securing a judgment or decree of court in favor of a litigant; the particular line of
reasoning of either party to a suit, the purpose being to bring together certain facts of the case in a
logical sequence and to correlate them in a way that produces in the decision maker’s mind a definite
result or conclusion favored by the advocate. (Black Law’s dictionary)
 A complaint must proceed upon a definite theory (which is to be determined from the general scope
and tenor of the complaint) which must reveal the character of the action – nature of the action. In
other words, a complaint must be so drafted that the court may see what class of actions the cause of
action therein stated belongs, and may know what branch of the law is applicable.
 It is the legal basis of the cause of action or defense, which a party is not permitted to change on
appeal. (San Agustin vs. Barrios)
 A party is bound by the theory he adopts and by the cause of action he stands on and cannot be
permitted after having lost thereon to repudiate his theory and cause of action and adopt another
and seek to re-litigate the matter anew either in the same forum or on appeal. (Arroyo vs. House of
Representatives Electoral Tribunal)

IV. THE PLEADINGS

A. Nature and Purpose

 Pleadings are defined as the written statement of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
 The object of pleadings is to settle and define the issues between the parties, so that the court may be
advised as to the questions in dispute.
 Test of a good pleading: “Whether the information is sufficient to enable the party to plead and
prepare for trial.”

B. Contents of Pleadings

i. The Caption
 The caption must set forth the name of the court, the title of the action, and the docket
number if assigned.
o Name of the court – The obvious purpose of naming the court with which the action
is instituted is simply to facilitate its identification.

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o Title of the action – The title of the action should include the names of all the parties
with their respective participation in the case indicated.

ii. The Text or Body


 The body of the pleading sets forth its designation, the allegations of the party’s claim or
defenses, the relief prayed for, and the date of the pleading.
o Designation of pleading – Designation of a pleading is actually stating the name of
particular pleading as provided for by the Rules of Court. However, the designation
so made by the pleader is not controlling. Courts have the power to pierce the form
and go into the substance so that they may not be misled by a false or wrong name
given to a pleading. The text or body of the pleading controls its nature or
designation, not the name which the pleader baptized.

o Allegations of the parties – Every single set of facts or circumstances should be


alleged in one paragraph alone, and should not be commixed or confused with other
sets of facts and circumstances, so as to facilitate the identification of the issues
upon which the trial is to be held of judgment to be rendered.
- Initial paragraph: the residence and legal capacity of the parties.
- Every pleading shall contain in a methodical and logical form, a plain, concise
and direct statement of the ultimate facts on which the party pleading relies for
his claim or defense, as the case may be, omitting the statement of mere
evidentiary facts.
- When an action is based on a written instrument or document, the substance of
such instrument or document should be set forth in the complaint and the
original or a copy thereof should be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like
effect to be set forth in the pleading.
- Not all the facts may be allowed as averments in a pleading. The rule requires
that a pleading should contain only allegations of “ultimate facts”, i.e., the facts
essential to a party’s cause of action or defense.

o The relief prayed for – The prayer for relief, which usually appears at the conclusion
of a petition or complaint, is the request asking for the relief to which the plaintiff
thinks himself entitled.
- The facts set forth in the body of the complaint determine the relief to which
the pleader is entitled, not the relief he demands in the prayer.
- In addition to the specific relief sought by the plaintiff, it is advisable for the
pleader to pray for a general relief. In a case where the complaint “prays for
such other and further relief as (to) the Court may appear just and equitable,”
the Supreme Court ruled that said prayer was broad and comprehensive
enough to justify the extension of a remedy different from or together with the
particular relief prayed for.

iii. Signature and Address


 Every pleading must be signed by the party or counsel representing him, stating in either
case his address which should not be a post office box.

 Significance of signature of counsel: The signature of counsel constitutes a certificate by him


that he has read the pleading; that to the best of his knowledge, information, and belief there
is good ground to support it; and that it is not interposed for delay.

 Effect of an unsigned pleading: An unsigned pleading produces no legal effect. However, the
court may, in its discretion, allow such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for delay.

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iv. Verification
 A verification of a pleading as here used is a statement, under oath, that the pleading is true.
The object of verification is to insure good faith and veracity in the material averments.

 A pleading is verified only by an affidavit stating that the person verifying has read the
pleading and that the allegations thereof are true of his own knowledge; verifications based
on “information and belief or upon “knowledge, information and belief is deemed
insufficient.

 Significance of a verification: it is intended to secure an assurance that the allegations in a


pleading are true and correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith.

 Effect of lack of verification: A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading. Hence, it produces no legal effect.
However, the absence of a verification, or the non-compliance with the verification
requirement does not necessarily render the pleading defective. It is only a formal and not a
jurisdictional requirement.

v. Certification against Forum Shopping; Other Requirements


 The plaintiff or principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed or is pending,
he shall report that fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
 Failure to comply with the foregoing requirements shall not be curable by mere amendment
of the complaint or other initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and after hearing.

C. Kinds of Pleadings

i. Complaint
 The complaint is the pleading alleging the plaintiffs cause or causes of action.
 The filing of the original complaint in court signifies the commencement of the civil action.
By the filing of the complaint, the court also acquires jurisdiction over the person of the
plaintiff.
 It is not simply the filing of the complaint or appropriate initiatory pleading but the payment
of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter
or nature of the action.

ii. Answer
 The answer is a pleading in which a defending party sets forth, his defenses.

 Defenses in the Answer:


o A defense is negative when the material averments alleged in the pleading of the
claimant are specifically denied. Material averments in the complaint not specifically
denied shall be deemed admitted.

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- If the allegations are deemed admitted, there is no more triable issues between
the parties and if the admissions appear in the answer of the defendant, the
plaintiff may file a motion for judgment on the pleadings.

o A defense is affirmative when it alleges new matters which, while hypothetically


admitting the allegations in the pleading of the claimant, would, nevertheless,
prevent or bar recovery by the claiming party.

● Default is a procedural concept that occurs when the defending party fails to file his answer
within the reglementary period.
o The defendant shall file his answer to the complaint 15 days after service of
summons, unless a different period is fixed by the court.
o Where the plaintiff files an amended complaint as a matter of right, the defendant
shall answer the same, within 15days after being served with a copy thereof.
o Where the amended complaint is not a matter of right, the defendant shall answer
the amended complaint within 10 days from notice of the order admitting the same.
o A supplemental complaint may be answered within 10 days from notice of the order
admitting the same.

iii. Counterclaim
 A counterclaim is any claim which a defending party may have against an opposing party. It
partakes of a complaint by the defendant against the plaintiff.
 When the defendant files a counterclaim against the plaintiff, the defendant becomes the
plaintiff in the counterclaim while the original plaintiff becomes the defendant.
 A compulsory counterclaim is one that (1) arises out of (or is necessarily connected with)
the transaction or occurrence that is the subject matter of the opposing party’s claim; (2)
falls within the jurisdiction of the court; and (3) does not require for its adjudication the
presence of third parties over whom the court cannot acquire jurisdiction.
 A permissive counterclaim is if any of the elements of a compulsory counterclaim discussed
previously is absent. But the most commonly treated feature of a permissive counterclaim is
its absence of a logical connection with the subject matter of the complaint, i.e., it does not
arise out of or is not connected with the plaintiffs cause of action.
 Counterclaim shall be answered within 10 days from service.

iv. Cross-claim
 A cross-claim is any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or a counterclaim therein.
 A cross-claim must be answered within 10 days from service.

v. Third (Fourth, etc.)-Party Complaint


 A third-party complaint is a claim which a defending party may, with leave of court, file
against a person who is not yet a party to the action for contribution, indemnity, subrogation
or any other relief, in respect of his opponent’s claim.
 Answer third-party complaint within 15 days from service.

vi. Intervention
 Intervention is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant herein to enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings.
 Intervention shall be allowed when a person has:
 A legal interest in the matter in litigation;
 Or a legal interest in the success of any of the parties;
 Or an interest against both parties;

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 Or when he is so situated as to be adversely affected by a distribution or


disposition of property in the custody of the court or an officer thereof.
● The motion to intervene may be filed at any time before rendition of the judgment by the
trial court.

vii. Reply
 A reply is a pleading, the function of which is to deny, or allege facts in denial or avoidance of
new matters alleged by way of defense in the answer and thereby join or make issue as to
such new matters.
 A reply is the responsive pleading to an answer. It is not a responsive pleading to a
counterclaim or cross-claim. The proper response to a counterclaim or cross-claim is an
answer to the counterclaim or answer to the cross-claim.
 Period to file a reply: Within 10 days from service of the pleading responded to.

V. DEPOSITION AND DISCOVERY

The use of deposition and discovery procedure is an effective mode of gathering facts.

Under the RoC, discovery means the disclosure by a party litigant of facts, deeds, documents or other things
which are in his exclusive knowledge, control or possession, and which are necessary to the party seeking
discovery as a part of a cause of action pending or as evidence of his title or rights in such proceedings.

A. Depositions

● A deposition is the taking of the testimony of any person, whether he be a party or not, but at the
instance of a party to the action. This testimony is taken out of court.
● Methods for taking deposition: (a) an oral examination or (b) a written interrogatory.
● A deposition may be sought for use in a pending action (Rule 23), a future action (Rule 24) or for use
in a pending appeal (Rule 24).

● Depositions Pending Action

o Rule 23, Section 1:


Depositions pending action, when may be taken. — By leave of court after jurisdiction
has been obtained over any defendant or over property which is the subject of the
action, or without such leave after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the instance of any party, by
deposition upon oral examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of court on such terms as the
court prescribes.

o Before Whom Taken:


- Within the Philippines: Before a judge, a notary public or any person authorized to
administer oaths is if the parties so stipulate in writing.
- Outside the Philippines: Before (a) a secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent of the PH; (b) such person or officer
as may be appointed yu commission or letters rogatory; or (c) a person authorized
to administer oaths by written stipulation of the parties.
- No deposition shall be taken before a person who is (a) relative within the 6th
degree of consanguinity or affinity or employee or counsel of any of the parties; (b)
a relative within the same degree, or employees of such counsel; or (c) one
financially interested in the action.

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o Scope of Examination (Rule 23, Section 22)


Scope of examination. — Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be examined regarding any matter,
not privileged, which is relevant to the subject of the pending action, whether
relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having knowledge of
relevant facts.

o Use of Depositions (Rule 23, Section 4)


Use of depositions. — At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of
evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any one
of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any
purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for
any purpose if the court finds: (1) that the witness is dead, or (2) that the witness
resides at a distance more than one hundred (100) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition, or (3) that the witness is unable to
attend or testify because of age, sickness, infirmity, or imprisonment, or (4) that the
party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced, and
any party may introduce any other parts.

● Depositions Before Action

This type of deposition is availed of when a person desires to perpetuate his own testimony
or that of another person regarding any matter that may be cognizable in any court of the
Philippines.

● Depositions Pending Appeal

If an appeal has been taken from a judgment of a court, including the CA in proper cases, or
before taking an appeal of the time therefor has not expired, the court in which the judgment
was rendered may allow the taking of the depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in said court.

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B. Interrogatories to Parties

● This mode of discovery is availed of by a party to the action for the purpose of eliciting material and
relevant facts from any adverse party.
● Procedure:
o The mode of discovery is availed of by filing and serving upon the adverse party written
interrogatories to be answered by the party served. If the party is a juridical entity, the
written interrogatories shall be answered by any of its officers competent to testify in its
behalf.
o The interrogatories shall be answered fully in writing, signed, and sworn to by the person
making them.

C. Request for Admissions

● The purpose of this mode of discovery is to allow one party to request the adverse party, in writing,
to admit certain material and relevant matters which, most likely, will not be disputed during trial.
● A party may request the other to:
(a) Admit the genuineness of any material and relevant document described in and exhibited
with the request.
(b) Admit the truth of any material and relevant matter of fact set forth in the request.
● When request is made: A party may file and serve the written requests at any time after issues have
been joined.
● The party to whom the written request is directed shall either (a) specifically deny the matters of
which admission is requested, or (b) if he does not deny the same, to set forth in detail the reasons
why he cannot truthfully admit or deny those matters. If the party to whom the written request for
admission is directed does not file the required sworn statement, each of the matters of which an
admission is requested shall be deemed admitted.

D. Production or Inspection of Documents or Things

● Rule 27, Section 1. Motion for production or inspection; order. — Upon motion of any party showing
good cause therefor, the court in which an action is pending may:
(a) order any party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence material
to any matter involved in the action and which are in his possession, custody or control, or

(b) order any party to permit entry upon designated land or other property in his possession or
control for the purpose of inspecting, measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. The order shall specify the time, place and manner
of making the inspection and taking copies and photographs, and may prescribe such terms and
conditions as are just.

● Limitation of this discovery procedure: the documents to be disclosed and produced should be “not
privileged.”

VI. PRE-TRIAL

A. In Civil Cases

● When conducted: After the last pleading has been served and filed, if shall be the duty of the plaintiff
to promptly move ex parte that the case be set for pre-trial. The motion is to be filed within 5 days
after the last pleading joining the issues has been served and filed. If the plaintiff fails to file said
motion within the given period, the branch clerk of court.

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● 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.

● The failure of plaintiff to appear shall be cause for the dismissal of the action. This dismissal shall be
with prejudice except when the court orders otherwise.
● The failure of the defendant to appear in the pre-trial shall be cause to allow the plaintiff to present
his evidence ex parte and for the court to render judgment on the basis of the evidence presented by
the plaintiff.

● Pre-trial brief
o 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.

● Pre-trial order.
o This order of the court is issued upon the termination of the pre-trial.
(a) The matters taken up in the conference
(b) The action taken thereon
(c) The amendments allowed to the pleadings
(d) The agreements or admissions made by the parties as to any if the matters considered.

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B. In Criminal Cases

● When conducted: The court shall hold the pre-trial within 30 days after arraignment or within 10
days of the accused is under preventive detention.

● Purposes of Pre-trial
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful
defense; and
(f) such other matters as will promote a fair and expeditious trial of the criminal and civil
aspects of the case. (Rule 118, Section 1)

● Non-appearance: If the counsel for the accused or the prosecutor does not appear at the pre-trial
conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose
proper sanctions or penalties.

● Pre-trial order: Within 10 days after the termination of the pre-trial, the trial judge shall issue a pre-
trial order setting forth the actions taken during the pre-trial conference, the facts stipulated, the
admissions made, the evidence marked, the number of witnesses to be presented and the schedule of
the trial.

Pre-Trial in Civil Cases Pre-Trial in Criminal Cases


The pre-trial is set when the plaintiff moves ex parte The pre-trial is ordered by the court and no motion
to set the case for pre-trial. to set the case for pre-trial is required from either the
prosecution of the defense.
The motion to set the case for pre-trial is made after The pre-trial is ordered by the court after
the last pleading has been served and filed. arraignment and within 30 days from the date of the
court acquires jurisdiction over the person of the
accused.
The pre-trial considers the possibility of an amicable No possibility of an amicable settlement.
settlement as an important objective.
The agreements and admissions made in the pre-trial All agreements or admissions made or entered
are to be recorded in the minutes of preliminary during the pre-trial conference shall be reduced in
conference and signed by the either the party or writing and signed by both the accused and counsel.
counsel.
Sanctions for non-appearance are imposed upon the Sanctions are imposed upon the counsel for the
plaintiff and defendant. accused or the prosecutor.
A pre-trial brief is required to be submitted. Not required.

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VII. RULES OF EVIDENCE

Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting
a matter of fact. (Rule 128, Section 1)

A. What Must be Proven

 Evidence is the means of proving a fact. As the definition says, it is offered in court to ascertain the
truth “respecting a matter of fact.” Implied from the definition of evidence in sec.1 of rule 128 is the
need for the introduction of evidence when the court has to resolve a question of fact. When no
factual issue exists in a case, there is no need to present evidence.
 All facts in issue and relevant facts must be proven by evidence.

B. What Need not Proven

1. Facts which are the subject of judicial notice (Rule 129, Secs. 1-3)
2. Facts which are admitted (Rule 129, Sec. 4)
3. Matters are not specifically denied in the answer (Rule 8, Sec. 10)
4. Facts which are legally presumed (Rule 131, Secs. 2-3)
5. Those which are the subject of an agreed statement of facts between the parties. (Rule 30, Sec. 6)

C. Admission in the Pleadings

 Judicial Admission – An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.
 Elements:
1. The same must be made by a party to the case
2. Must be made in the course of the proceedings in the same case
3. Does not require a particular form for an admission

 Admissions made in the pleadings of a party are deemed judicial admissions.


 An admission made in a pleading may be an actual admission as when a party categorically admits a
material allegation made by the adverse party. An admission may likewise be inferred from the
failure to specifically deny the material allegations in the other party’s pleadings.

 Averments in pleadings which are not deemed admissions:


1. Immaterial allegations
2. Conclusions
3. Non-ultimate facts in the pleading
4. Amount of unliquidated damages

D. Matters of Judicial Notice

 Function of judicial notice: Evidence shall be dispensed with because the matter is so well known and
is of common knowledge not to be disputable.

 When Judicial Notice is Mandatory:


1. Existence and territorial extent of states;
2. Political history, forms of government and symbols of nationality of states;
3. Law of nations;
4. Admiralty and maritime courts of the world and their seals;
5. Political Constitution and history of the Philippines;
6. Official acts of the legislative, executive and judicial department of the Philippines

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7. Laws of nature;
8. Measure of time; and
9. Geographical divisions

 When Judicial Notice is Discretionary:


1. Matters which are of public knowledge
o Things of common knowledge which courts take judicial notice of, are matters
coming to the knowledge of men generally in the course of ordinary experiences of
life, or they may be matters which are generally accepted by mankind as true and
are capable of ready and unquestioned demonstration.

2. Matters capable of unquestionable demonstration


o Matters which are capable of unquestionable demonstration pertain to fields of
professional and scientific knowledge.

3. Matters ought to be known to judges because of their judicial functions


o A judge may not take judicial notice of a fact which he personally knows if it is not
part of the evidence or not a fact generally known its territorial jurisdiction.

o The principal guide in determining what facts may be assumed to be judicially known is that
of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety.

o The principles of discretionary judicial notice will apply where the following requisites are
met:
1. The matter must be of common knowledge
2. The matter must be settled beyond reasonable doubt
3. The knowledge must exist within the jurisdiction of the court.

 Stage when judicial notice may be taken: During or after trial.

 Judicial Notice of Foreign Laws.


o It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.
Like any other facts, they must be alleged and proved.
o Foreign laws must be alleged and proved. In the absence of proof, the foreign law will be
presumed to be the same as the laws of the jurisdiction hearing the case under the doctrine
of processual presumption.
o When may the court take judicial notice of the foreign law: Where the foreign law is within
the actual knowledge of the court, such as when the law is generally well-known, had been
ruled upon in previous cases before it and none of the parties claim otherwise.

 Judicial Notice of Municipal Ordinances


o MTCs should take judicial notice of municipal ordinances in force in the municipality in
which they sit.
o RTCs should also take judicial notice of municipal ordinances in force in the municipalities
within their jurisdiction but only when so required by law.
o CA may take judicial notice of municipal ordinances.

 Judicial Notice of a Court’s Own Acts and Records


o A court will take judicial notice of its own acts and records in the same case

 No Judicial Notice of Records of Other Cases


o While courts may take judicial notice of its win acts and records in the same case, courts are
not authorized to take judicial notice of the contents of the records or other cases.

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o Exceptions:
1. When in the absence of any objection, and with knowledge of the opposing party,
the contents of said other case are clearly referred to by title and number in a
pending action and adopted or read into the record of the latter; or
2. When the original record of the other case or any part of it is actually withdrawn
from the archives at the court’s discretion upon the request, or with the consent, of
the parties, and admitted as part of the record of the pending case.

E. Kinds of Presumptions.

A presumption is an assumption of facts resulting from a rule of law which requires such fact to be assumed
from another fact or group of facts found or otherwise established in the action.

Effect of presumptions: One need not introduce evidence to prove the facts for a presumption is prima facie
proof of the facts presumed.

1. Conclusive Presumptions
 A presumption is conclusive when the presumption becomes irrebuttable upon the
presentation of evidence and any evidence tending to rebut the presumption is not
admissible.

 Rule 131, Section 2. Conclusive presumptions. — The following are instances of conclusive
presumptions:
(a) Whenever a party has, by his own declaration, act, or omission, intentionally and
deliberately led to another to believe a particular thing true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or omission, be permitted to
falsify it: (Estoppel in pais)

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement
of the relation of landlord and tenant between them. (Estoppel by deed)

 The conclusive presumptions are based on the doctrine of estoppel. Under this doctrine, the
person making the representation cannot claim benefit from the wrong he himself
committed.

2. Disputable Presumptions
 A presumption is disputable or rebuttable if it may be contradicted or overcome by other
evidence.
 Disputable presumptions are satisfactory, if uncontradicted, but may be contradicted and
overcome by other evidence.

 Rule 131, Section 3. Disputable presumptions. — The following presumptions are satisfactory
if uncontradicted, but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;

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(h) That an obligation delivered up to the debtor has been paid;


(i) That prior rents or installments had been paid when a receipt for the later one is
produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is
the taker and the doer of the whole act; otherwise, that things which a person possess, or
exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the
delivery of anything, has paid the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting
in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed
upon by it; and in like manner that all matters within an issue raised in a dispute submitted
for arbitration were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was
overdue and at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still
lives, he is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after
an absence of ten years. If he disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate
among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing,
who has not been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances and whose
existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present
may contract a subsequent marriage if he or she has well-founded belief that the absent
spouse is already death. In case of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of only two years shall be sufficient

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for the purpose of contracting a subsequent marriage. However, in any case, before
marrying again, the spouse present must institute a summary proceedings as provided
in the Family Code and in the rules for declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to
the law or fact;
(y) That things have happened according to the ordinary course of nature and ordinary
nature habits of life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a
lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other
and who live exclusively with each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry
each other and who have acquire properly through their actual joint contribution of money,
property or industry, such contributions and their corresponding shares including joint
deposits of money and evidences of credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within
three hundred days after such termination of the former marriage, these rules shall govern
in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the
subsequent marriage is considered to have been conceived during such marriage, even
though it be born within the three hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days following the celebration of the
subsequent marriage is considered to have been conceived during such marriage, even
though it be born within the three hundred days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public
authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in
tribunals of the country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular
person has actually conveyed it to him when such presumption is necessary to perfect the
title of such person or his successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity,
such as wreck, battle, or conflagration, and it is not shown who died first, and there are no
particular circumstances from which it can be inferred, the survivorship is determined from
the probabilities resulting from the strength and the age of the sexes, according to the
following rules:
(1) If both were under the age of fifteen years, the older is deemed to have survived;

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(2) If both were above the age sixty, the younger is deemed to have survived;
(3) If one is under fifteen and the other above sixty, the former is deemed to have
survived;
(4) If both be over fifteen and under sixty, and the sex be different, the male is deemed
to have survived, if the sex be the same, the older;
(5) If one be under fifteen or over sixty, and the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, they shall be considered to have died at the
same time.

F. The Best Evidence Rule (Rule 130, Section 3)


 Best evidence rule is that which requires the highest grade of evidence obtainable to prove a
disputed fact.

 The rule will come into play only when the subject matter of inquiry is the contents of a
document.

 Requisites for the Best Evidence Rule to Apply


1. The subject matter must involve a document
2. The subject of the inquiry is the contents of the document

 General Rule: When the subject of inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself.
o Original of Document:
1. The original of a document is one the contents of which are subject of inquiry.
2. When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.
3. When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.

 Exceptions to the Best Evidence Rule:


1. When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
o Requisites:
i. The offeror must prove the execution and existence of the original document;
ii. The offeror must show the cause of its unavailability; and
iii. The offeror must show that the unavailability was not due to his bad faith.

o The Due Execution and Authenticity of the Document must be Proved Either:
i. by anyone who saw the document executed or written; or
ii. by evidence of the genuineness of the signature or handwriting of the maker.

2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
o Requisites:
i. That the original exists;
ii. That said document is under the custody or control of the adverse party;
iii. That the proponent of secondary evidence has given the adverse party
reasonable notice to produce the original document; and

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iv. That the adverse party failed to produce the original document despite the
reasonable notice.

o Reasonable notice may be in the form of a motion for the production of the original,
or made in open court in the presence of the adverse party, or via a subpoena duces
tecum.

3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole;
o Requisites:
i. If the original consists of numerous accounts or other documents;
ii. They cannot be examined in court without great loss of time; and
iii. The facts sought to be established from them is only the general result of the
whole.

4. When the original is a public record in the custody of a public officer or is recorded in a
public office.
o The secondary evidence is a certified copy true copy of the original. This certified
copy is to be issued by the public officer in custody of the public records.

G. The Parole Evidence Rule (Rule 130, Section 9)


 Parol means something oral or verbal but with reference to contracts, it means extraneous
evidence. It is any evidence which is intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document.
 The parol evidence rule prohibits any addition to or contradiction of the terms of a written
agreement by testimony or other evidence purporting to show that different terms were
agreed upon by the parties, varying the purport of the written contract.

 The rule applies only to contracts which the parties have decided to set forth in writing.
When the agreement is merely oral, the parole evidence rule should not be applied.
 The parole evidence rule becomes operative when the issues in litigation are the terms of a
written agreement.

 General Rule: When the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be, between the parties
and their successors in interest, no evidence of such terms other than the contents of the
written agreement. The term agreement includes wills.

 Exception: However, a party may present evidence to modify, explain or add to the terms of
written agreement if he puts in issue in his pleading:
1. An intrinsic ambiguity, mistake or imperfection in the written agreement;

2. The failure of the written agreement to express the true intent and agreement of the
parties thereto;
o Aside from mistake, there are some other reasons enumerated in the substantive
law for the failure of the instrument to express the true intention of the parties like
fraud, inequitable conduct or accident.
o When the true intention is not expressed in the instrument by any of the
aforementioned causes, one of the parties may ask for the reformation of the
instrument.

3. The validity of the written agreement; or

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4. The existence of other terms agreed to by the parties or their successors in interest after
the execution of the written agreement.

 Only the parties and successors-in-interest are bound by the parole evidence rule.

Best Evidence Rule Parole Evidence Rule


Establishes a preference for the original Is not concerned with the primacy of evidence
document over a secondary evidence thereof. but presupposes that the original is available.
Precludes the admission of secondary evidence if Precludes the admission of other evidence to
the original document is available. prove the terms of a document other that the
contents of the document itself for the purpose of
varying the terms of the writing.
Can be invoked by any litigant to an action. Can be invoked only by the parties to the
document and their successors-in-interest.
Applies to all forms of writing. Applies to written agreements and wills.

VIII. EXAMINATION OF WITNESSES

Testimonial or oral evidence is evidence elicited from the mouth of a witness as distinguished from real and
documentary evidence.

General Rule: The answer of the witness shall be given orally in open court. (This method allows the court
the opportunity to observe the demeanor of the witness and also allows the adverse party to cross-examine
the witness.)

Exceptions:
1. If the witness is incapacitated to speak
2. The question calls for a different mode of answer

The witness must take either an oath or affirmation.


 Oath – is an outward pledge made under an immediate sense of responsibility to God or a solemn
appeal to the Supreme Being in attestation of the truth of some statement.
 Affirmation – is a substitute for an oath, and is a solemn and formal declaration that the witness will
tell the truth.

A witness must answer questions, although his answer may tend to establish a claim against him. However, it
is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor
2. Not to be detained longer than the interests of justice require
3. Not to be examined except only as to matters pertinent to the issue
4, Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided
by law
5. Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a
fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous
final conviction for an offense.

Qualifications and Disqualifications of Witnesses


Rule 130. Section 20. Witnesses; their qualifications – Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.

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Disqualifications of Witnesses:
1. Disqualification by reason of mental incapacity - Those whose mental condition, at the time of their
production for examination, is such that they are incapable of intelligently making known their perception to
others.
2. Disqualification by reason of immaturity - Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and of relating them truthfully.
3. Disqualification by reason of marriage - During their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants
or ascendants.
4. Disqualification by reason of death or insanity of adverse party - Parties or assignor of parties to a case, or
persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of
a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person became of unsound mind.
5. Disqualification by reason of privilege communication - The following persons cannot testify as to matters
learned in confidence in the following cases:
i. The husband or the wife, during or after the marriage, cannot be examined without the consent of
the other as to any communication received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for a crime committed by one
against the other or the latter's direct descendants or ascendants;
ii. An attorney cannot, without the consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact the knowledge of which has been
acquired in such capacity;
iii. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional capacity, which information
was necessary to enable him to act in capacity, and which would blacken the reputation of the
patient;
iv. A minister or priest cannot, without the consent of the person making the confession, be examined
as to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
v. A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure.

A. Direct Examination

 This is the examination-in-chief of a witness by the party presenting him on the facts relevant to the
issue.
 It is actually a procedure for obtaining information from one’s own witness in an orderly fashion. It is
information which counsel wants the court to hear.

B. Cross-Examination

 This is the examination of the witness by the adverse party after said witness has given his testimony
on direct examination.
 The most reliable and effective way known of testing the credibility and accuracy of testimony.

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 Purposes of cross-examination: (1) To discredit the witness; (2) To discredit the testimony of the
witness; (3) To clarify certain matters; and (4) To elicit admissions from a witness.
 As a rule, the scope of the cross-examination is not confines to the matters stated by the witness in
the direct examination.
 Where the witness is an unwilling or a hostile witness as so declared by the court, he may be cross-
examined only as to the subject matter of his examination-in-chief. The same limited scope of a cross-
examination is imposed upon the cross-examiner where the witness examined is an accused because
he is subject to cross-examination on matters covered by the direct examination.

C. Re-Direct Examination

 The party who called the witness on direct examination may re-examine the same witness to explain
or supplement his answers given during the cross-examination.
 In re-direct examination the counsel may elicit testimony to correct or repel any wrong impression
or inferences that may have been created in the cross-examination. It may also be an opportunity to
rehabilitate a witness whose credibility has been damaged.
 In its discretion, the court may even allow questions on matters not touched in the cross-
examination.

D. Re-Cross Examination

 This is the examination conducted upon the conclusion of the re-direct examination.
 Here, the adverse party may question the witness on matters stated in his re-direct examination and
also on such matters as may be allowed by the court in its discretion.

E. Rebuttal

 Rebuttal evidence is any competent evidence to explain, repel, counteract or disprove the adversary’s
proof. It is receivable only where new matters have been developed by the evidence of one of the
parties and is generally limited to a reply to new points.

F. Sur-Rebuttal

 If in the course of presentation of rebuttal evidence, new matters were introduced, the plaintiff or
defendant may adduce proof for the purpose of meeting or refuting those new matters taken up by
the adverse party during the rebuttal stage, or of clarifying matters that were beclouded or made
ambiguous during the rebuttal. Evidence so presented by him is technically known as sur-rebuttal
evidence.

IX. OBJECTIONS

When objections should be made


It is necessary that the objection be timely. In order to be timely therefore, the objection must be made at the
earliest opportunity. What the earliest opportunity is depends upon the manner the evidence is offered:
1. If the evidence is offered orally, objection to the evidence must be immediately after the offer is
made.
2. An objection to a question propounded in the course of the oral examination of the witness shall be
made as soon as the grounds therefor shall become reasonably apparent.
3. An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a
different period is allowed by the court.

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Any objection against the admission of any piece of evidence must be made at the proper time, and that, if not
so made, it will be understood to have been waived.

A. Purposes of Objections

1. To keep out inadmissible evidence that would cause harm to a client’s cause. The rules of evidence
are not self-operating and, hence, must be invoked by way of an objection;
2. To protect the record, i.e., to present the issue of inadmissibility of the offered evidence in a way
that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal;
3. To protect a witness from being embarrassed on the stand or from being harassed by the adverse
counsel;
4. To expose the adversary’s unfair tactics like his consistently asking obviously leading questions;
5. To give the trial court an opportunity to correct its own errors and, at the same time, warn the
court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate
jurisdiction;
6. To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence.

B. Kinds of Objections
1. General Objection
 They do not clearly indicate to the judge the ground upon which the objections are
predicated. They assign no grounds to the objection.
 The rule however, does not impose a general or an absolute ban on general objections. There
is no compelling need to specify the ground, “if the ground for exclusion should have been
obvious to the judge or to the counsel.”
 A general objection is sufficient where the ground therefor is so manifest that the trial court
could not fail to understand it, as when the evidence offered is clearly irrelevant or
incompetent.
 Examples:
a. Objection, the evidence is incompetent.
b. Objection! Inadmissible
c. Objection! Improper

2. Specific Objection
 It states why or how the evidence is irrelevant or incompetent.
 The grounds for the objection must be specified.
 Reasons why objection must be specific:
i. So that the judge may understand the question raised and that the adversary may
have an opportunity remedy the defect, if possible.
ii. To make a proper record for the reviewing court in the event of an appeal.
 Examples:
a. Objection to the question for being misleading.
b. Question calls for a hearsay answer.
c. Witness cannot testify on a privileged communication.

C. Ruling on Objections

 The ruling of the court must be given immediately after the objection is made except when the court
desires to take a reasonable time to inform itself on the question presented. However, the court must
give its ruling during the trial and at such time as will give a party an opportunity to meet the
situation presented by the ruling.
 If no ruling is made during the course of the trial, counsel would have no means of knowing whether
or not he would be compelled to meet any evidence at all, hence it would prejudice the substantial
rights of his client.

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 The reason for sustaining or overruling an objection need not be stated. However, if the objection is
based on 2 or more grounds, a ruling sustaining the objection on one or some of them must specify
the ground or ground relied upon.

 Effect of Ruling on Objections:


1. When an objection to a question is sustained – The court declares the question improper,
and the witness ought not to answer it.
2. When the objection is overruled – The court declares the question proper and the witness
must answer it.

X. JUDGMENT AND APPEALS

Judgment – Is the final ruling by a court of competent jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding.

Requisites for a Valid Judgment:


1. The court or tribunal must be clothed with authority to hear and determine the matter before it;
2. The court must have jurisdiction over the parties and the subject matter;
3. The parties must have been given an opportunity to adduce evidence in their behalf;
4. The evidence must have been considered by the tribunal in deciding the case;
5. The judgment must be in writing, personally and directly prepared by the judge;
6. The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed
with the clerk of court.

A. Forms of Judgment
1. In Civil Cases
 In civil cases, all judgments determining the merits of cases shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him and filed with the clerk of court.
 The findings of facts required refer to statement of facts and not conclusions of law.

 Parts of a Judgment:
1. The opinion of the court
 The opinion of the court is that portion of the judgment containing the
findings of facts and conclusions of law of the court.

2. The disposition of the case


 The disposition of the case is that part of the judgment containing the final
and actual disposition and adjudication of the rights litigated.

3. Signature of the judge

 Conflict between the dispositive portion and body of the decision: The general rule is that
where there is a conflict between the dispositive portion and the body of the decision, the
dispositive portion of the judgment controls. However, where the inevitable conclusion from
the body of the decision is so clear that there was a mere mistake in the dispositive portion,
the body of the decision will prevail.

2. In Criminal Cases (Rule 120)


 In criminal cases, it is decreed that the judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain clearly

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and distinctly a statement of the facts proved or admitted by the accused and the law upon
which the judgment is based.

 If it is of conviction, the judgment shall state:


1. The legal qualification of the offense constituted by the acts committed by the accused,
and the aggravating or mitigating circumstance attending the commission thereof, if there
are any;
2. The participation of the accused in the commission of the offense, whether as principal,
accomplice or accessory after the fact;
3. The penalty imposed upon the accused;
4. Recovered from the accused by the offended party, if there is any, unless the enforcement
of the civil liability by a separate action has been reserved or waived.

 In case of acquittal, unless there is a clear showing that the facts from which the civil liability
might arise did not exist, the judgment shall make a finding on the civil liability of the
accused in favor of the offended party.

B. Modes of Appeal
1. Ordinary Appeal (Rule 40-41)
 An appeal by notice of appeal from a judgment or final order of a lower court in the exercise
of its original jurisdiction on questions of fact, law or mixed questions of facts and law.

2. Petition for Review (Rule 42)


 The appeal to the Court of Appeals in cases decided by the RTC in the exercise of its appellate
jurisdiction. This mode of appeal is brought to the CA on questions of fact, of law or mixed
questions of fact and law.

3. Petition for Review on Certiorari (Rule 45)


 This mode of appeal is brought to the SC from the decisions of the RTC in the exercise of its
original jurisdiction and only on questions of law.

C. Period of Appeal
 An appeal may be taken within 15 days after notice to the appellant of the judgment or final order
appealed from.
 Where a record on appeal is required, the appellant shall file a notice of appeal and a record on
appeal within 30 days after notice of the judgment or final order.
 A record on appeal shall be required only in special proceedings and in case of multiple or
separate appeals. (Multiple appeals are allowed in special proceedings, actions for recovery
of property with accounting, actions for partition of property with accounting, and the
special civil actions of eminent domain and foreclosure of mortgage.)

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