The conduct of pre-trial conference is mandatory. There are significant changes provided in the 2019 Proposed Amendments to the 1997 Rules of Civil Procedure (hereinafter, “2019 Amendments”), which takes effect on 1 May 2020. We thought it might be helpful to provide a summary/discussion on Rule 18 (Pre-Trial). The summary of other Rules can be tracked through the Menu.
The more significant changes include: (a) court may, on its own, decide the case right after pre-trial; (b) shift of the duty to ensure issuance of the notice of pre-trial; (c) provision on specific periods for issuance of notice and order, among others; (d) inclusion of effect of counsel’s absence; (e) rules on reservation of witnesses and documents; (f) expediting the proceedings; (g) additional items to be included in the pre-trial order; and (h) inclusion of provisions on CAM and JDR.
Under the 1997 Rules, it is the duty of the plaintiff to move ex parte that the case be set for pre-trial conference. The new rules removed this requirement. We will miss our pre-formatted “Ex Parte Motion to Set Case for Pre-Trial”.
The rule is different under the 2019 Amendments. The branch clerk of court (BCC) now has the duty to immediately issue the notice of pre-trial. After the last responsive pleading has been served and filed, the branch clerk of court shall issue, within 5 calendar days from filing, a notice of pre-trial which shall be set not later than 60 calendar days from the filing of the last responsive pleading. [Rule 18, Sec. 1]
NOTICE OF PRE-TRIAL
The 1997 Rules simply provides that notice shall be served on the counsel, or on the party if he or she has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him or her.
This is still the same requirement under the 2019 Amendments, but with the additional directive that the notice of pre-trial shall include the dates respectively set for:
- (a) Pre-trial;
- (b) Court-Annexed Mediation; and
- (c) Judicial Dispute Resolution, if necessary.
EFFECT OF NON-APPEARANCE
It shall be the duty of the parties and their counsel to appear at the:
- pre-trial conference [Note: The old 1997 Rules covers only this]
- Court-Annexed Mediation
- Judicial Dispute Resolution, if necessary
A representative may appear on behalf of a party, but must be fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and documents.
The 1997 Rules simply provides that non-appearance may be excused when “valid cause is shown”. The 2019 Amendments spells out that the valid excuses are: (a) acts of God; (b) force majeure; or (c) duly substantiated physical inability. When duly notified, in case of non-appearance without valid cause:
- Failure of the plaintiff and counsel to appear — dismissal of the action, with prejudice, unless otherwise ordered by the court.
- Failure on the part of the defendant and counsel — plaintiff shall be allowed to present evidence ex-parte within 10 calendar days from termination of the pre-trial, and the court to render judgment on the basis of the evidence offered. The specific period (10 days) has been added in the 2019 Amendments.
Note that under the old 1997 Rules, the sanctions are imposed only when the parties are absent. Under the 2019 Amendments, the sanctions are imposed when either the party and counsel are absent.
NATURE AND PURPOSE OF PRE-TRIAL
The more significant changes under the 2019 Amendments in relation to the nature and purpose of the pre-trial conference, are the following: (a) deletion of two items to be considered during the pre-trial, i.e., the “advisability or necessity of suspending the proceedings” and the “necessity or desirability of amendments to the pleadings; and (b) addition of the provision that the pre-trial “should be terminated promptly”. These changes reveal the intention to expedite the proceedings.
The pre-trial is mandatory and should be terminated promptly. The court shall consider:
- 1. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution.
- 2. The simplification of the issues.
- 3. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof.
- 4. The limitation of the number and identification of witnesses and the setting of trial dates. [The old 1997 Rules simply provides the “limitation of the number of witnesses”.]
- 5. The advisability of a preliminary reference of issues to a commissioner;
- 6. 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;
- 7. Such other matters as may aid in the prompt disposition of the action.
The aforementioned items are found in both the 1997 Rules and the 2019 Amendments. There is one important item added in the 2019 Amendments, on the marking of evidence.
Under the 2019 Amendments, the court shall also consider the requirement for the parties to:
A. Mark their respective evidence if not yet marked in the judicial affidavits of their witnesses;
B. Examine and make comparisons of the adverse parties’ evidence vis-a- vis the copies to be marked;
C. Manifest for the record stipulations regarding the faithfulness of the reproductions and the genuineness and due execution of the adverse parties’ evidence;
D. Reserve evidence not available at the pre-trial, but only in the following manner:
- i. For testimonial evidence, by giving the name or position and the nature of the testimony of the proposed witness;
- ii. For documentary evidence and other object evidence, by giving a particular description of the evidence.
No reservation shall be allowed if not made in the manner described above.
The failure without just cause of a party and/or counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence.
The branch clerk of court shall prepare the minutes of the pre-trial, which shall follow the prescribed format.
The failure without just cause of a party and counsel to appear during pre-trial, despite notice, shall result in a waiver of any objections to the faithfulness of the reproductions marked, or their genuineness and due execution. [Note: This provision should properly apply only against defendants. The 2019 Amendments provides that absence of the plaintiff during the pre-trial shall result to a dismissal of the complaint, while the absence of the defendant shall result to plaintiff presenting evidence ex-parte.]
As to the filing and service of the pre-trial brief, the old 1997 Rules provides that it must be done “3 days” before the date of the pre-trial. To remove any confusion whether weekends should not be included in the counting of the period, the 2019 Amendments provides that the parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least 3 calendar days before the date of the pre-trial.
The pre-trial brief must contain, among others:
- (a) A concise statement of the case and the reliefs prayed for;
- (b) A summary of admitted facts and proposed stipulation of facts;
- (c) The main factual and legal issues to be tried or resolved;
- (d) The propriety of referral of factual issues to commissioners;
- (e) The documents or other object evidence to be marked, stating the purpose thereof;
- (f) The names of the witnesses, and the summary of their respective testimonies; and
- (g) A brief statement of points of law and citation of authorities.
These items, previously required under the 1997 Rules, have been removed under the 2019 Amendments:
- A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof.
- A manifestation of their having availed or their intention to avail themselves of discovery procedures.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial conference.
The old 1997 Rules provides that upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried.
These items have been significantly expanded under the 2019 Amendments, with a specific period for the issuance of the pre-trial order.
The 2019 Amendments now requires that upon termination of the pre-trial, the court shall issue an order within 10 calendar days which shall recite in detail the matters taken up. The order shall include:
- (a) An enumeration of the admitted facts
- (b) The minutes of the pre-trial conference
- (c) The legal and factual issue/s to be tried
- (d) The applicable law, rules, and jurisprudence
- (e) The evidence marked
- (f) The specific trial dates for continuous trial, which shall be within the period provided by the Rules
- (g) The case flowchart to be determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision and the use of time frames for each stage in setting the trial dates
- (h) A statement that the one-day examination of witness rule and most important witness rule under A.M. No. 03-1-09-SC (Guidelines for Pre-Trial) shall be strictly followed
- (i) A statement that the court shall render judgment on the pleadings or summary judgment, as the case may be
The direct testimony of witnesses for the plaintiff shall be in the form of judicial affidavits. After the identification of such affidavits, cross-examination shall proceed immediately.
Postponement of presentation of the parties’ witnesses at a scheduled date is prohibited, except if it is based on acts of God, force majeure or duly substantiated physical inability of the witness to appear and testify. The party who caused the postponement is warned that the presentation of its evidence must still be terminated within the remaining dates previously agreed upon.
Should the opposing party fail to appear without valid cause, the presentation of the scheduled witness will proceed with the absent party being deemed to have waived the right to interpose objection and conduct cross-examination.
The contents of the pre-trial order shall control the subsequent proceedings, unless modified before trial to prevent manifest injustice.
CAM AND JDR
The 2019 Amendments now expressly provides for Court-Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR).
After pre-trial and, after issues are joined, the court shall refer the parties for mandatory court-annexed mediation. The period for court-annexed mediation shall not exceed 30 calendar days without further extension.
Only if the judge of the court to which the case was originally raffled is convinced that settlement is still possible, the case may be referred to another court for judicial dispute resolution. The judicial dispute resolution shall be conducted within a non-extendible period of 15 calendar days from notice of failure of the court-annexed mediation.
All proceedings during the CAM and the JDR shall be confidential.
If judicial dispute resolution fails, trial before the original court shall proceed on the dates agreed upon.
JUDGMENT AFTER PRE-TRIAL
The 2019 Amendments inserts an entire section regarding judgment after the pre-trial conference. These additional provisions are very significant.
After the pre-trial conference, a party may move for judgment on the pleadings under Rule 34 or summary judgment under Rule 35. These remedies, while not provided in Rule 18 of the old 1997 Rules, are already available under the old rules.
The more significant addition is this: after the pre-trial, the court may motu proprioinclude in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without need of position papers or memoranda, in the following instances:
- Should there be no more controverted facts, or
- No more genuine issue as to any material fact, or
- Absence of any issue, or
- Should the answer fail to tender an issue
The order of the court to submit the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari.
In such cases, judgment shall be rendered within 90 calendar days from termination of the pre-trial.
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