MEMO BRIEF

Purpose: Memos discuss, recommend, and advise. The memo objectively

informs the reader about what the law is. It also helps develop a legal
strategy with other attorneys. Although it is not a guarantee of a cases
outcome, it is an attempt to illustrate what the outcome will probably be
when the law is applied to a particular set of facts.
Purpose: riefs argue. The brief see!s to persuade the reader that your
application of the law to the facts is the correct one. Although a brief
cannot be dishonest or misleading, it should emphasi"e favorable
arguments and minimi"e the force of opposing arguments. The purpose is to
win the case, using the law in the way most favorable to your client.
The rules on pre-trial in civil cases
The #$$% &ules of 'ivil (rocedure which became effective on )uly #, #$$% reinforced the importance of the pre*trial stage in civil cases. efore,
notwithstanding that there were already rules providing for pre*trial in civil cases, in fact as early as #$+,, there was no uniform method of conducting
one and in many cases, there was only a mere passing compliance. More often than not, the judge would merely as! the litigants whether or not there
was any possibility of settlement and if in the negative, would simply terminate the pre*trial and proceed to trial on the merits. The #$$% &ules have
changed the situation in that the provisions on pre*trial are now being strictly observed ma!ing pre*trial a more effective tool toward the e-peditious
disposition of civil cases.
The #$$% &ules re.uire that after the last pleading has been served and filed, the plaintiff must promptly move ex-parte that the civil case be set for pre*
trial. This is in lieu of the old rule which placed such burden on the court. /urther, while it was only in the heading of the old rule that the words 01(2re*
trial mandatory0 appeared, the #$$% &ules now e-pressly provide that 01T2he pre*trial is mandatory.0
And so what is the purpose of the pre*trial in a civil case3 The purpose is for the court to consider the: 4#5 the possibility of an amicable settlement or
submission to alternative mode of dispute resolution6 475 the simplification of issues6 485 the necessity or desirability of amendments to the pleadings6 4+5
the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proofs6 495 the limitation of the number of
witnesses6 4:5 the advisability of a preliminary reference of issues to a commissioner, 4%5 the propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid ground therefore be found6 4;5 the advisability or necessity of suspending the proceeding6
and 4$5 such other matters as may aid in the prompt disposition of the action. As may be seen, the overall purpose is really to simplify, abbreviate,
facilitate and e-pedite the case.
The #$$% &ules, moreover, affirmed prevailing jurisprudence on notice to, and appearance of, parties. Thus, notice of pre*trial shall be served on
counsel, or on the party who has no counsel. It is counsel<=#+:6s duty therefore to notify his client. And, the non*appearance of a party may be
e-cused only if a valid cause is shown or if a representative shall appear in his behalf fully authori"ed in writing. It is important to note that such
authority in writing or special power of attorney must specifically state that the representative of the party is authori"ed to do the following three acts: 4#5
to enter into an amicable settlement6 475 to submit to alternative modes of dispute resolution6 and 485 to enter into stipulations or admissions of facts and
of documents. It bears to stress that a defective special power of attorney results in the representative not being fully authori"ed to appear on behalf of
the party. /or all intents and purposes, therefore, the party is not represented and deemed not to have appeared at the pre*trial.
There is also a reiteration in the #$$% &ules of the conse.uence of a failure to appear at the pre*trial conference. Accordingly, the plaintiff who does not
appear personally or by a properly authori"ed representative is 0non*suited0 in that his case shall be dismissed and such dismissal shall be with
prejudice unless otherwise ordered by the court. The defendant who does not appear personally or by a properly authori"ed representative is
considered 0as in default0 in that the plaintiff shall be allowed to present evidence ex-parte on the basis of which the court shall render judgment.
The #$$% &ules have a section devoted to the pre*trial brief. In the past, lawyers submitted their own versions of the pre*trial brief. >hile some go to
great lengths to provide the court with a good overview of their case and the evidence they intended to present, many others filed merely a brief
summary of their complaint or answer, as the case may be, and nothing more. ?ow, pre*trial briefs follow a standard format containing, among others:
4#5 a statement of the party<=#+:6s willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired
terms6 475 a summary of admitted facts and proposed stipulation of facts6 485 the issues to be tried or resolved6 4+5 the documents or e-hibits to be
presented, stating the purpose thereof6 495 a manifestation of having availed or their intention to avail of discovery procedures or referral to
commissioners6 and, 4:5 the number and names of witnesses and substance of their respective testimonies. The pre*trial brief<=#+:6s indispensability
is shown by the fact that failure to file one has the same effects as failure to appear at the pre*trial. @owever, there is no particular sanction against the
submission of an incomplete or non*complying pretrial brief:
As to the effect of presenting evidence other than those a party has specified in the pre*trial brief, recent jurisprudence tends to preclude a party from
doing so because allowing him would defeat the very purpose of the pre*trial brief which is the simplification, abbreviation and e-pedition of trial.
According to the Aupreme 'ourt in the case of Tiu vs. Middleton, et al, 8#, A'&A 9;,, judges have the discretion to e-clude witnesses and other
pieces of evidence not listed in the pre*trial brief, provided the parties are given prior notice to this effect.
After the pre*trial, the court issues a pre*trial order which, under the #$$% &ules, shall recite in detail the matters ta!en up in the conference and
e-plicitly define and limit the issues. Boing bac! to the above*cited case, the Aupreme 'ourt resolved therein that where in the pre*trial order, the judge
did not e-ercise his discretion to e-clude unlisted or unnamed witnesses, but simply provided that a party will present so many witnesses without
mentioning at all that they would be barred from testifying unless named, and the other party did not challenge said order nor compel the submission of
names of witnesses and summaries of their testimonies, the latter was deemed to have ac.uiesced to the order allowing the presentation of unnamed
witnesses.
The rules on pre-trial in criminal cases
(rior to the &evised &ules of 'riminal (rocedure which became effective on Cec. #, 7,,,, pre*trial in criminal cases was not mandatory. It was only if
the accused and counsel agree, that the court was to conduct a pre*trial conference without impairing the rights of the accused. The &evised &ules
provide that pre*trial is now mandatory in criminal cases cogni"able by the Aandiganbayan and ordinary courts. /urther, the subjects that could be
ta!en up were e-panded to include <=#9,6 apart from plea bargaining, stipulation of facts, mar!ing of evidence and waiver of objections of admissibility
of evidence <=#9,6 modification of the order of trial if the accused admits the charge but interposes a lawful defense.
To strengthen the mandatory character of the pre*trial in a criminal case, if the counsel for the accused or the prosecutor does not appear and has no
acceptable e-cuse for his lac! of cooperation, the court may now impose proper sanctions or penalties. /urther, the &evised &ules reiterate that, after
the pre*trial, the court shall issue an order reciting the actions ta!en, the facts stipulated and the evidence mar!ed. Auch order shall bind the parties,
limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.
The &evised &ules also reiterate the re.uirement of a pre*trial agreement and that the same must be reduced in writing and signed by the accused and
counsel in order that the same may be used against the accused. The &evised &ules added that such agreement covering the matters considered
during the pre*trial shall be approved by the court.
It is interesting to note that in the past, even prior to the old rules on criminal procedure which preceded the &evised &ules, a stipulation of facts was
not allowed in criminal cases. In the case of US vs. Donato, $ (hil %,#, the Aupreme 'ourt held that agreements between attorneys for the prosecution
and for the defense in criminal cases, by which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a review of the
evidence by the Aupreme 'ourt and are in violation of the law. In a later case, the Aupreme 'ourt reiterated the impropriety and impermissibility of
rendering judgment in a criminal case on the basis of such an agreement rather than on any evidence being adduced for testimony ta!en from
witnesses, as such practice defeats the purposes of criminal law, and is an open violation of the rules of criminal procedure. The rule prohibiting the
stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and the corollary
duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is duty*bound to prove all the elements of the crime
and may not be relieved of this obligation by the mere e-pedient of stipulating with defense counsel on a matter constitutive of an essential element of
the crime charged 4People vs. Hernandez, 7:, A'&A 8:5.
The rationale behind the proscription against this class of agreements was reiterated in the case of US vs. Manlimos, ## (hil, 9+%. There, the Aupreme
'ourt said that it is not supposed to be within the !nowledge or competence of counsel to predict what a proposed witness would say under the
sanction of his oath and the test of cross*e-amination.
Df course, under the &evised &ules, a stipulation of facts in criminal cases is now e-pressly allowed by law, particularly during pre*trial. In fact, as
stated in People vs. Hernandez, although not e-pressly sanctioned under the old rules of court, a stipulation of facts made by the parties during the trial
itself of a criminal case has long been allowed and recogni"ed as declarations constituting judicial admissions, hence, binding upon the parties. Thus,
although the re.uirement is for an agreement or admission made or entered during the pre*trial conference to be reduced in writing and signed by the
accused and his counsel before the same may be used in evidence against the accused, the Aupreme 'ourt ruled in the afore*cited case that where
the stipulation of facts was made during trial and therefore automatically reduced into writing and contained in the official transcript of the proceedings
had in court, the conformity of the accused in the form of his signature affi-ed thereto is unnecessary. Another reason for its ruling, according to the
Aupreme 'ourt, is that the right of the accused to confront and cross*e-amine the witnesses against him is a personal privilege which may be waived.
@ence, a stipulation of facts or judicial admission by the accused that witnesses if present would testify to certain facts stated in the affidavit of the
prosecution was precisely in the nature of such waiver.
Another case pertinent to the subject of pre*trial in a criminal case is People vs. Webb, 8#7 A'&A 9%8. There, the principal issue was whether or not
the trial judge gravely abused her discretion in denying the motion to ta!e testimony by oral depositions in the Enited Atates which would be used in the
criminal case. The Aupreme 'ourt, disagreeing with the 'ourt of Appeals, .uoted the definition of an oral deposition to be a pre*trial discovery device by
which one party through his attorney as!s oral .uestions of the other party or of a witness for the other party, which is conducted under oath outside of
the court room. /urther, the purposes of ta!ing depositions, as noted by the Aupreme 'ourt, are, among others, to e-pedite litigation, prevent delay,
simplify and narrow the issues, facilitate both preparation and trial, educate the parties in advance of trial as to the real value of their claims and
defenses thereby encouraging settlements. Thus, a deposition, in !eeping with its nature as a mode of discovery, should be ta!en before and not during
trial. Aupporting this is American jurisprudence to the effect that the rules on criminal practice, particularly on the defense of alibi, which is the accused
main defense, state that when a person intends to rely on such defense, the accused must move for the ta!ing of the deposition of his witnesses within
the time provided for filing a pre*trial motion.
(&F*T&IAG A?C (&F*T&IAG 'D?/F&F?'F
Aection #. (re*trial6 mandatory in criminal cases. H In all criminal cases cogni"able by the Aandiganbayan, &egional Trial 'ourt, Metropolitan
Trial 'ourt, Municipal Trial 'ourt in 'ities, Municipal Trial 'ourt and Municipal 'ircuit Trial 'ourt, the court shall, after arraignment and
within thirty 48,5 days from the date the court ac.uires jurisdiction over the person of the accused, unless a shorter period is provided for
in special laws or circulars of the Aupreme 'ourt, order a pre*trial conference to consider the following:
4a5 plea bargaining6
4b5 stipulation of facts6
4c5 mar!ing for identification of evidence of the parties6
4d5 waiver of objections to admissibility of evidence6
4e5 modification of the order of trial if the accused admits the charge but interposes a lawful defense6 and
4f5 such matters as will promote a fair and e-peditious trial of the criminal and civil aspects of the case.
>@AT IA T@F (E&(DAF D/ A (&F*T&IAG3
I The purpose is to e-pedite proceedings
>@F? IA (&F*T&IAG &FJEI&FC3
I (re*trial is mandatory in all criminal cases cogni"able by the Aandiganbayan, &T', MT' and M'T'
>@F? A@DEGC IT F 'D?CE'TFC3
I After arraignment, and within 8, days from the date the court ac.uires jurisdiction over the person of the accused
I An e-ception to the rule is when the accused is under preventive detention. The case shall be raffled within 8 days. Arraignment shall be done
within #, days after the raffle. Ten days thereafter, the pre*trial.
>@AT A@DEGC T@F D&CF& /D& (&F*T&IAG 'D?/F&F?'F 'D?TAI?3
#. The presence of the accused and more importantly the offended party, for purposes of plea bargaining and determination of civil
liability. &emember that plea bargaining isnt allowed in cases involving violations of the Cangerous Crugs Act.
7. &eferring the matter for preliminary conference to the cler! of court.
8. >arning that evidence not offered during preliminary conference shall be inadmissible e-cept if because of good cause and under the
discretion of the court
>@D A@DEGC (&FAICF I? A (&FGIMI?A&K 'D?/F&F?'F3
I 'ler! of court will preside the preliminary conference
&EGF #7+ * (&D'FCE&F I? T@F 'DE&T D/ A((FAGA

Aection #. Title of the case. H In all criminal cases appealed to the 'ourt of Appeals, the party appealing the case shall be called the 0appellant0
and the adverse party the 0appellee,0 but the title of the case shall remain as it was in the court of origin.

Aec. 7. Appointment of counsel de officio for the accused. H If it appears from the record of the case as transmitted that 4a5 the accused
is confined in prison, 4b5 is without counsel de parte on appeal, or 4c5 has signed the notice of appeal himself, as! the cler! of court of the 'ourt of
Appeals shall designate a counsel de officio.

An appellant who is not confined in prison may, upon re.uest, be assigned a counsel de officio within ten 4#,5 days from receipt of the notice to file
brief and he establishes his right thereto.

Aec. 8. >hen brief for appellant to be filed. H >ithin thirty 48,5 days from receipt by the appellant or his counsel of the notice from the cler! of
court of the 'ourt of Appeals that the evidence, oral and documentary, is already attached to the record, the appellant shall file seven 4%5 copies
of his brief with the cler! of court which shall be accompanied by proof of service of two 475 copies thereof
upon the appellee.

Aec. +. >hen brief for appellee to be filed6 reply brief of the appellant. H >ithin thirty 48,5 days from receipt of the brief of the appellant, the
appellee shall file seven 4%5 copies of the brief of the appellee with the cler! of court which shall be accompanied by proof of service of two 475
copies thereof upon the appellant.

>ithin twenty 47,5 days from receipt of the brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not
covered in the brief of the appellant.

Aec. 9. F-tension of time for filing briefs. H F-tension of time for the filing of briefs will not be allowed e-cept for good and sufficient cause and
only if the motion for e-tension is filed before the e-piration of the time sought to be e-tended.

Aec. :. /orm of briefs. H riefs shall either be printed, encoded or typewritten in double space on legal si"e good .uality ungla"ed paper, 88,
mm. in length by 7#: mm. in width.

Aec. %. 'ontents of brief. H The briefs in criminal cases shall have the same contents as provided in sections #8 and #+ of &ule ++. A certified true
copy of the decision or final order appealed from shall be appended to the brief of the appellant.

Aec. ;. Cismissal of appeal for abandonment or failure to prosecute. H The 'ourt of Appeals may, upon motion of the appellee or motu
proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this
&ule, e-cept where the appellant is represented by a counsel de officio.

The 'ourt of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of the appeal.