Total Quality Management

Total Quality Management SCANNER Normal JOJO 4 14 2002-01-16T05:39:00Z 2002-01-17T03:28:00Z 2 797 4545 SC 37 9 5581 9.2720 120

VII. PRE-TRIAL AS COMPONENT OF CASEFLOW MANAGEMENT

1. Nature, Concept and Purpose

Pre-trial is a procedure consisting of conferences between attorneys for the parties to a lawsuit and a judge of the court. Its chief purpose is to prepare the case for an effective trial by formulating the issues, not in abstract terms but with specific facts of the particular case in mind, and stating them in the pre-trial order which then, in effect, becomes the chart for pre-trial. 4

2. Rules on Pre-Trial

There are only two Rules in in the Rules of Court specifically referring to pre-trial: Rule 18, on civil cases, and Rule 118, on criminal cases. These are discussed in the modules on Civil and Criminal Procedure.

3. The Mechanics of Pre-trial

3.1 Stages of Pre-Trial

There are two stages in the pre-trial of a civil case: the negotiation stage and pre-trial proper.

In both stages, the judge is the 'principal actor' and as such must actively wield his legal and moral authority in the proceeding.

3.2 Techniques

While there are no hard and fast rules in the conduct of a settlement, the following techniques may be considered:

3.2.1 As soon as the parties receive each other's pleadings, their lawyers should get in touch with one another to explore the avenues for settlement, or failing this, to determine what facts and evidence, documentary and otherwise, can be admitted during the conference. On the day of pre-trial but before the case is called, counsels for both parties may appear before the branch clerk of court for marking of their exhibits. This saves pre-trial time and effort.

3.2.2 The ideal venue for pre-trial is the courtroom itself with the judge at the bench and the parties seated across each other at the lawyers' table. The judge, however, can be less formal and may sit with the parties and counsel. For cases involving confidential matters where pre-trial in the courtroom is not advisable, the conference may be held in chambers.

3.2.3 If held in chambers, the judge should require the presence of his branch clerk of court, interpreter and stenographer to prevent suspicion of any irregularity. The discussions should be amiable and cordial to create an atmosphere of understanding and goodwill between the parties.

3.2.4 The judge should endeavor to bring the parties to a settlement range. If the parties cannot settle, s/he should determine the reason therefor.

3.2.5 S/He asks plaintiff and defendant separately what possible concessions they can offer to settle the case.

3.2.6 S/He should take care not to appear to have pre-judged the case. S/He may premise his statements on assumptions. Thus, s/he may say: 'Assuming that the allegations of defendant (or plaintiff) in the pleadings are true, can you present more superior evidence?'

3.2.7 The judge must be able to highlight the 'soft spots' in the versions of both parties and exploit these to attain a just and fair pre-trial settlement.

3.2.8 The judge should remain from asking either side to name specific figures or a range of figures, i.e., 'best figure,' 'highest offer,' 'rock bottom figure' or 'irreducible minimum,' because the use of absolutes tend to end negotiation rather than encourage it. 5

3.2.9 In case of failure of settlement, pre-trial proper follows. The following are suggested techniques:

3.2.9.1 The judge asks plaintiff's counsel if there are proposals for stipulation or admission of facts. The contents of exhibits already marked may be adduced by the lawyer at this point. The defendant is thereafter asked what s/he admits and if admission is refused, the reason therefor. When plaintiff is through with his/her proposals, the defendant takes his/her turn to propose admissions. The same process is observed.

3.2.9.2 Formulation and simplification of issues comes next. This consists of developing a complete statement of all of the actual contentions of the parties as to the law and the facts which have not been eliminated during the admission process. Any issue not raised during pre-trial and therefore not stated in the pre-trial order cannot be tried during trial on the merits.

It is also at this stage that the number of witnesses and the nature of their testimonies are determined.

3.2.9.3 Once the issues have been defined, the judge and counsels next agree on trial dates. Whenever possible, the judge should schedule continuous trials to comply with the rule on mandatory continuous trials.

3.2.10 Criminal cases

Here, the admissions of the accused cannot be used against him unless these are signed by him/her and counsel. The best time for signing is immediately after pre-trial since both accused and counsel are still in court. The stenographer brings the typewriter to the courtroom. The judge then formulates and consolidates the stipulations of facts and issues as proposed by the parties. Once typed, the order is read by the lawyers and the parties who may immediately propose corrections. The signing thereafter takes place. 6

4. The Pre-Trial Order

A pre-trial order, or, as described in the Rules, the 'record of pre-trial results' is an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered. It describes and limits the issues for trial to those not disposed of by admissions or agreements during the pre-trial and cannot anymore be altered; when entered, it controls the course of the trial.

As such, it becomes the Bible of the parties in court. 7

4 Josue N. Bellosillo, Effective Pre-Trial Technique, citing Justice Arthur T. Vanderbilt, 9-10 (1990).

5 Bellosillo, supra, note 4, 200-240.

6 Bellosillo, Pre-Trial: A View From The Bench, 1998.

7 Bellosillo, Effective Pre-Trial Technique, supra, note 4, 490-500.