TABLE OF CONTENTS
[ TABLE OF CONTENTS ]
BENCHBOOK FOR TRIAL COURT JUDGES
INTRODUCTION
I.
JUDICIAL POWER AND THE ROLE OF THE JUDICIARY
i-1
II.
HOW TO USE THE BENCHBOOK
i-2
A.
The Benchbook as Judge’s Guide
i-3
B.
Organization of the Benchbook
i-3
C.
Benchbook Citations
i-5
OUTLINE OF JURISDICTION
I.
SUPREME COURT
1-1
A.
Original
1-1
1.
Exclusive
1-1
2.
Concurrent
1-1
B.
Appellate
1-2
1.
Notice of appeal
1-2
2.
Petition for review on certiorari
1-2
3.
Special civil action of certiorari
1-2
II.
COURT OF APPEALS
1-3
A.
Original
1-3
1.
Exclusive
1-3
2.
Concurrent
1-3
B.
Appellate
1-3
1.
Ordinary appeal by notice of appeal or record on appeal
1-3
2.
Petition for review
1-3
III.
SANDIGANBAYAN
1-4
A.
Original
1-4
1.
Exclusive
1-4
2.
Concurrent with Supreme Court
1-5
B.
Appellate
1-5
IV.
REGIONAL TRIAL COURTS
1-5
A.
Original
1-5
1.
Civil
1-5
2.
Criminal
1-7
B.
Appellate
1-7
V.
FAMILY COURTS
1-7
A.
Exclusive and Original
1-7
VI.
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS
1-8
A.
Original
1-8
1.
Civil
1-8
2.
Criminal
1-9
3.
Summary procedure
1-10
CIVIL PROCEDURE PART ONE
ORDINARY CIVIL ACTIONS
I.
CASE BEGINS WITH THE FILING OF COMPLAINT
2-1
A.
Preliminary
2-1
1.
Definition of complaint
2-1
2.
Requirements
2-1
B.
Filing of Complaint
2-3
1.
Manner
2-3
2.
Payment of docket and other lawful fees
2-4
II.
COURT ACQUIRES JURISDICTION OVER THE PARTIES
2-5
A.
Modes of Service of Summons
2-5
1.
Personal service
2-5
2.
Substituted service
2-5
3.
Constructive service (By Publication)
2-7
4.
Extraterritorial service, when allowed
2-8
B.
Effect of Lack of Summons
2-9
III.
INCIDENTS AFTER COURT HAS ACQUIRED JURISDICTION OVER THE PARTIES
2-10
A.
Preliminary
2-10
B.
Rules on the Specific Incidents
2-10
1.
Notice of dismissal of complaint
2-10
2.
Amended complaint
2-11
3.
Supplemental complaint
2-11
4.
Deposition
2-12
5.
Written interrogatories upon defendant
2-12
6.
Request for admission
2-13
7.
Production or inspection of document or things
2-13
8.
Physical and mental examination of a party
2-13
9.
Consequences of refusal
2-13
10.
Default
2-14
11.
Extension of time to file responsive pleading
2-16
12.
Bill of particulars
2-17
13.
Motion to dismiss
2-17
IV.
JOINDER OF ISSUES
2-29
A.
Filing of Answer
2-29
1.
Time to plead
2-29
2.
Strict observance of the period
2-30
3.
Effect of failure to plead
2-30
B.
Counterclaim
2-31
1.
Definition
2-31
2
Difference between permissive and compulsory counterclaim
2-31
3.
Cognate rules
2-32
V.
PRE-TRIAL
2-33
A.
Concept of Pre-Trial
2-33
1.
Concept of pre-trial
2-33
2.
Purpose of pre-trial
2-33
3.
Administrative Circular No. 3-99
2-34
4.
The pre-trial order
2-35
VI.
TRIAL
2-36
A.
Administrative Circular No. 3-99
2-36
B.
Some Rules
2-38
VII.
ADJUDICATION
2-40
A.
Concept and Requirements
2-40
B.
Kinds of Judgment and Definitions
2-40
1.
Without reception of evidence
2-40
2.
With partial reception of evidence
2-41
C.
Cases on Summary Judgments
2-41
D.
Ordinary Judgment
2-43
VIII.
REMEDIES AGAINST JUDGMENT AND FINAL ORDERS
2-46
A
Kinds of Remedies
2-46
1.
Before finality of judgments or final orders
2-46
2.
After finality of judgments or final orders
2-46
B.
Motion for Reconsideration and New Trial
2-46
1.
Common rules
2-46
2.
Motion for reconsideration
2-47
3.
Motion for new trial
2-47
C.
Appeal
2-50
1.
General principles
2-50
D.
Modes of Appeal
2-52
E.
Cognate Rules
2-53
1.
General rule
2-53
2.
Difference between question of fact and question of law
2-53
3.
Notice of appeal
2-53
4.
Record on appeal
2-54
5.
Perfection of appeal
2-54
6.
Effect of perfection of appeal
2-54
7.
Period to appeal
2-55
IX.
EXECUTION OF JUDGMENTS AND FINAL ORDERS
2-56
A.
Basic Concepts and Doctrines
2-56
1.
Definition
2-56
2.
Kinds of execution
2-56
3.
When writ of execution may be quashed
2-57
4.
Execution of final judgments and orders
2-57
5.
Specific rules
2-58
6.
Levy and garnishment
2-59
7.
Rules on redemption
2-61
8.
Rules in deed of possession
2-62
CIVIL PROCEDURE PART TWO
PROVISIONAL REMEDIES
I. COMMON RULES 2-63
A. Attachment 2-64
1. Definition
2-64
2. Concept and purpose
2-64
3. Nature and scope
2-64
4. Strict compliance with the rule
2-65
5. Attachment to acquire jurisdiction over the res
2-65
6. Stages in the issuance of the writ
2-65
7. Orders in provisional remedies
2-66
8. Important jurisprudential rules
2-67
B. Preliminary Injunction and Temporary Restraining Order 2-68
1. Two kinds of preliminary injunction
2-68
2. Purpose
2-69
3. Definition of status quo
2-69
4. Independent action to obtain preliminary injunction 2-70
5. Essential requisites for issuance of preliminary injunction
2-70
6. Rulings
2-70
7. Summary denial without adequate hearing proper
2-70
8. When hearing on the merits unnecessary
2-71
9. Cases where injunction was held improper
2-71
10. Exceptions 2-73
11. Cases where injunction prohibited 2-73
12. Cases where criminal prosecutions were enjoined 2-73
13. Mandatory injunction 2-74
14. Cases where mandatory injunction not granted
2-74
15. Injunction against courts or tribunals of equal rank is prohibited
2-75
16.
Statutory prohibitions against the issuance of a writ of preliminary injunction
2-75
17. Injunctions not issued where act sought to be prevented had been committed 2-77
18.
No injunction beyond prayer in complaint
2-78
19. Temporary restraining order 2-78
D. Receivership 2-79
1. Appointment of a receiver
2-79
2. Specific situations when a receiver may be appointed
2-79
E. Replevin 2-80
1. Steps in the issuance and implementation of a writ of replevin
2-80
2. Notes 2-80
3. Return of property under writ of replevin
2-81
F. Support Pendente Lite 2-81
1. Notes and cases
2-81
CIVIL PROCEDURE PART THREE
SPECIAL CIVIL ACTIONS
I. THE DIFFERENT SPECIAL CIVIL ACTIONS 2-83
A. Interpleader 2-83
1. Requisites
2-83
2. Decisional rules 2-83
3. Procedural peculiarities
2-84
B. Declaratory Relief and Similar Remedies 2-84
1. Requisites
2-84
2. Procedural peculiarities
2-85
3. Declaratory relief improper in the following cases
2-85
C. Certiorari 2-86
1. Requisites
2-86
2. Terminology
2-86
3. When not proper
2-86
4. Exceptions to requirements before certiorari can be availed of
2-87
5. Requirements regarding the extrinsic sufficiency of the petition
2-87
6. Time to file
2-88
7. Decisions
2-88
D. Prohibition 2-88
1. Requisites
2-88
2. Decisional rules
2-88
E. Quo Warranto 2-89
1. Definition
2-89
2. Quo Warranto as distinguished from election contest
2-89
3. Peculiarities of proceedings
2-89
F. Expropriation 2-90
1. Requisites for exercise of right
2-90
2. Two stages in expropriation proceedings
2-90
G. Foreclosure of Real Estate Mortgage 2-90
1. Judgment in a foreclosure proceeding
2-90
2. Distinction between right of redemption and equity of redemption
2-91
3. Writ of possession in judicial foreclosure
2-91
4. Deficiency judgment
2-91
H. Partition 2-92
1. Two stages of the action
2-92
2. Prescription of action
2-92
3. Some decisions
2-93
I. Forcible Entry and Unlawful Detainer 2-93
1. Nature of accion interdictal
2-93
2. Immediate execution and how to stay it
2-93
3. Important decisional rules on unlawful detainer
2-94
J. Contempt 2-96
1. Two kinds of contempt
2-97
2. Two aspects of contempt
2-97
3. Decisions
2-97
4. Necessity of hearing
2-97
5. Contempt by non-party
2-98
6.
Power to punish for contempt to be exercised in preservative not vindictive principle; what constitutes disobedience
2-98
ANNEX: TABLES 2-99
Table 1
Differences among Provisional Remedies
Table 2
Basic Characteristics of Provisional Remedies
Table 3
Differences of Bonds in Provisional Remedies
Table 4
Differences of Counterbonds in Provisional Remedies
Table 5
Differences among the Modes of Appeal
Table 6
Differences between Certiorari , Prohibition and Mandamus
Table 7
Differences between Prohibition and Injunction
Table 8
Differences between Forcible Entry and Unlawful Detainer.
SPECIAL PROCEEDINGS
I.
INTRODUCTION
3-1
A.
Definition of Terms
3-1
B.
Rules That Govern Special Proceedings
3-4
C.
The Special Proceedings Provided in the Rules of Court
3-5
D.
Special Proceedings Under Various Laws
3-5
E.
Jurisdiction of Family Courts
3-6
II.
SETTLEMENT OF ESTATE OF DECEASED PERSONS
3-8
A.
In General
3-8
1.
Jurisdiction and venue
3-8
2.
Kinds of settlement
3-9
3.
Extrajudicial settlement
3-9
4.
Summary settlement of estates of small value
3-10
5.
Judicial settlement with letters testamentary or with letters of administration
3-11
B.
Probate of Wills
3-12
1.
Will, explained
3-12
2.
Time to submit to the court
3-13
3.
Procedure in the probate of a will
3-14
C.
Executors and Administrators
3-17
1.
Requirements For The Issuance of Letters Testamentary and of Letters of Administration
3-17
2.
Appointment of Executors (who may become executors)
3-17
3.
Appointment of administrators; priorities
3-18
4.
Appointment of special administrators
3-18
5.
Bond of administrator or executor
3-20
6.
General powers and duties of executors and administrators
3-21
7.
Inventory and appraisal
3-21
8.
Sales and mortgages
3-22
9.
Actions by and against executors and administrators
3-24
10.
Money claims against the estate; notice to creditors
3-26
11.
Payment of debts
3-29
12
Accountability and compensation of executors and administrators
3-31
D.
Distribution and Partition
3-34
1.
When distribution is made
3-34
2.
Partial distribution, when paying estate taxes
3-35
3.
Expenses of partition
3-35
4.
Project of partition
3-35
5.
Final order of partition; recording of order of partition of estate
3-35
III.
GUARDIANS
3-36
A.
Necessity for guardianship
3-36
1.
“Incompetent” as subject of guardianship
3-36
2.
Parents as guardians
3-36
B.
Jurisdiction and Venue
3-36
1.
Where to file petition for guardianship
3-36
2.
Transfer of venue
3-37
C.
Petition for Guardianship
3-37
1.
Who may file
3-37
2.
Contents of petition
3-37
3.
Notice of hearing
3-37
4.
Grounds for opposition
3-38
5.
Order
3-38
6.
Guardian for the estate of a non-resident
3-38
D.
Guardian’s Bond
3-38
1.
New bond
3-38
2.
Bond to be filed; actions thereon
3-38
E.
General Powers and Duties
3-39
F.
Sale or Encumbrance
3-40
G.
Petition for Termination of Guardianship
3-40
IV.
ADOPTION
3-41
A.
Governing Laws
3-41
B.
Petition for Adoption
3-43
1.
Who may adopt
3-43
2.
Jurisdictional venue
3-44
3.
Subjects of adoption
3-44
4.
Aliens
3-44
5.
Joint adoption
3-45
6.
Age difference
3-45
7.
Procedure
3-45
8.
Civil registry record
3-48
9.
Confidential nature of proceedings
3-48
10.
Service of judgment
3-48
C.
Rescission of Adoption
3-49
1.
Grounds for rescission
3-49
2.
Who may file
3-49
3.
Time to file petition
3-49
4.
Procedure
3-49
5.
Service of judgment
3-50
D.
Inter-Country Adoption
3-50
1.
Adoption by aliens
3-50
2.
The law and the implementing rules and regulations
3-50
3.
The process
3-50
4.
A legally free child
3-50
5.
Adopters
3-51
6.
Application
3-51
7.
Functions of the RTC
3-51
8.
Resident Aliens
3-51
9.
Case rulings
3-52
V.
CUSTODY OF MINORS
3-53
A.
Jurisdiction
3-53
B.
Children Under Seven Years of Age
3-53
C.
Child Abuse
3-53
1.
Protective custody
3-54
2.
Special court proceedings
3-54
3.
When parents are separated
3-54
D.
Special Provisional Remedies
3-55
1.
Restraining order
3-55
2.
Temporary custody
3-55
3.
Support pendente lite
3-56
E.
Foster Care
3-56
F.
Dependent, Abandoned or Neglected Children
3-56
1.
Involuntary commitment
3-56
2.
Voluntary commitment
3-56
3.
Various other provisions
3-57
4.
Special children
3-57
VI.
HABEAS CORPUS
3-58
A.
Definition and Nature
3-58
B.
Functions and Scope of Writ
3-58
C.
Grounds for Relief
3-58
1.
Deprivation of fundamental or constitutional rights
3-58
2.
Lack of jurisdiction of the court to impose the sentence
3-58
3.
Excessive penalty
3-59
D.
Power to Grant Writ; Enforceability
3-59
E.
Requisites of Application
3-59
F.
Procedure (issuance of writ and return)
3-59
G
Discharge of Person Detained
3-59
VII.
ESCHEATS
3-60
A.
Meaning
3-60
B.
Procedure
3-60
1.
When filed
3-60
2.
Who files petition
3-60
3.
Where filed
3-60
4.
Contents of petition
3-60
5.
Order of hearing
3-61
6.
Publication
3-61
7.
Judgment
3-61
C.
Permanent Trust
3-61
D.
Claim Within Five Years
3-62
E.
Other Actions For Escheat
3-62
VIII.
CHANGE OF NAME
3-63
A.
Name Defined
3-63
1.
Minor
3-63
2.
Resident aliens
3-63
B.
Procedure
3-63
1.
Venue
3-63
2.
Petition
3-63
3.
Hearing
3-64
C.
Case Rulings
3-64
1.
Joinder or causes of action
3-64
2.
Resumption of use of maiden name after divorce
3-64
3.
Absence of cause
3-64
4.
Causes for change of name
3-64
5.
Erasing signs of former nationality
3-65
6.
Resulting confusion
3-65
7.
Improving personality or social standing
3-65
8.
Legitimate minor child
3-65
IX.
ABSENTEES
3-67
A.
Basic Concepts
3-67
1.
Provisional representative
3-67
2.
Trustee or administrator
3-67
3.
Notice and publication required
3-67
4.
Preferences
3-67
5.
Termination
3-67
X.
CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
XI
SUMMARY PROCEEDINGS UNDER THE FAMILY CODE
3-69
A.
Summary Proceedings Under the Family Code
3-69
1.
Rationale
3-69
2.
Procedural rules
3-69
3.
Coverage
3-69
4.
Procedure
3-70
XII
TRUSTEES
3-72
A.
Basic Concepts
3-72
1.
Appointment
3-72
2.
Venue
3-72
3.
Notice
3-72
4.
Bond, inventory and sale of trust estate
3-72
XIII
PROCEEDINGS FOR THE HOSPITALIZATION OF INSANE PERSONS
3-73
XIV
OTHER SPECIAL PROCEEDINGS
3-74
A.
Voluntary Distribution of Corporations
3-74
B.
Judicial Approval of Voluntary Recognition of Minor Natural Children
3-75
C.
Constitution of the Family Home
3-77
XV
APPEALS IN SPECIAL PROCEEDINGS
3-78
A.
Appealability
3-78
B.
Who May Appeal
3-78
C.
Perfection of Appeal
3-79
D.
Advanced Distribution
3-80
CRIMINAL PROCEDURE PART ONE
PROCEURE IN TRIAL COURTS
I.
JURISDICTION IN CRIMINAL CASES
4-1
A.
Introduction
4-1
1.
Criminal jurisdiction defined
4-1
2.
Elements
4-1
B.
Requisites For Its Valid Exercise
4-1
C.
Jurisdiction Determined by Allegations of Complaint or Information
4-2
D.
Jurisdiction Over Complex Crimes
4-3
E.
Crimes Punishable by Destierro
4-3
II.
TERRITORIAL JURISDICTION
4-4
A.
General Rule
4-4
B.
Jurisdiction Over the Person of Accused
4-4
C.
Criminal Jurisdiction of Municipal Trial Courts
4-4
D.
Cases Governed by the Summary Rules
4-8
E.
Cases Governed by the Regular Rules
4-8
F.
Damage to Property Through Criminal Negligence
4-11
G.
Special Jurisdiction in Certain Cases
4-11
III.
PROSECUTION OF OFFENSES
4-12
A.
Institution of Criminal Action
412
1.
Prosecution of offenses is instituted either by complaint or information
4-12
2.
Procedure for institution of criminal actions
4-12
3.
Who must prosecute criminal actions
4-13
4.
Recovery of civil liability
4-13
5.
Prosecution of private crimes
4-13
B.
Distinction Between Control of Prosecution and Control of Court
4-14
1.
Control by prosecution
4-14
2.
Control by court once case is filed
4-14
3.
Limitations on control by court
4-15
C.
Testing Sufficiency of Complaint or Information
4-15
D.
Strict Scrutiny in Heinous Crimes
4-16
1.
Cause of the accusation
4-16
E.
Duplicity of the Offense and Continuing Crimes
4-17
1.
Duplicity of the offense
4-17
2.
Continuing crimes: the principle of delito continuado
4-18
3.
Exceptions to rule on duplicity
4-20
4.
Rule on complex crimes
4-20
5.
No duplicity in rape with homicide
4-21
6.
No duplicity in charge of estafa
4-21
7.
Illegal possession of firearm and unlawful killing with the use thereof
4-22
8.
Reckless imprudence cases
4-23
9.
Amendment or substitution
4-23
III.
PROSECUTION OF CIVIL ACTION
4-24
A.
Basic Rule
4-24
B.
Civil Actions not Based on Crime not Extinguished
4-25
C.
Criminal Actions to Recover Civil Liability Arising from Delict and Civil Actions Based on Quasi-Delict may proceed Simultaneously
4-26
D.
Extinction of the Penal does not Carry with it Extinction of the Civil
4-27
IV.
PROCEDURAL CHECKLISTS ON CRIMINAL PROCEDURE
4-28
A.
For Cases Cognizable by the Municipal Trial Courts
4-28
Checklist I - Things to check/do upon receipt of complaint or information
4-28
When Case is for Preliminary Investigation
4-28
When Case is for Trial on the Merits
4-29
Checklist II - Things to check/do after the issuance of arrest warrant and before trial stage
4-32
B.
For Cases Cognizable by the Regional Trial Courts
4-32
Checklist I - Things to do upon receipt of complaint or information up to issuance of the warrant of arrest
4-34
Checklist II - Incidents after issuance of warrant of arrest or commitment order
4-35
C.
Common Procedures in First and Second Level Courts
4-39
Checklist I - Things to do at the arraignment of the accused
4-39
Checklist II - Pre-Trial
4-42
Things to do during the pre-trial conference
4-42
When there is plea bargaining
4-43
When there is no plea bargaining
4-44
Checklist III - What to do after pre-trial to initial trial
4-46
Ten Commandments for a Judge on Applications for Bail
4-48
Checklist IV - Incidents during trial
4-50
What to do when there is application to discharge accused to be state witness
4-50
Effects of discharge
4-53
When a motion/petition to suspend a criminal action based upon the alleged pendency of a prejudicial question in a civil action is filed in the criminal action
4-54
What a judge should do if accused is reported to have died
4-56
What a judge should do in case a motion for disqualification or inhibition is filed
4-57
V.
CONDUCTING THE TRIAL
4-60
A.
Supreme Court Circulars
4-60
B.
Compliance with Periods
4-60
C.
Pertinent Rules
4-61
1.
Time to prepare for trial
4-61
2.
Continuous trial until terminated; postponements
4-61
3.
Exclusions
4-61
4.
Factors for granting continuance
4-63
5.
Time limit following an order for new trial
4-63
6.
Extended time limit
4-64
7.
Public attorney’s duties when accused is imprisoned
4-64
8.
Sanctions
4-65
9.
Remedy where accused is not brought to trial within the time limit
4-65
10.
Law on speedy trial not a bar to provision on speedy trial in the Constitution
4-66
11.
Order of trial
4-66
D.
How to Deal with Accused’s Motion for Examination of his/her Witness before Trial
4-66
E.
How to Deal with Prosecution’s Motion for Examination of its Witness before Trial
4-68
F.
If a Motion for Confinement of an Accused in a Mental Hospital is Filed
4-69
G.
Demurrer to Evidence
4-70
Checklist - Steps to Take When Demurrer to Evidence is Filed
4-70
VI.
JUDGMENT
4-72
A.
Definition
4-72
Checklist - Steps to Take in Rendering Judgment
4-72
B.
Extent of Damages Awarded in Civil Liability Arising from Crimes
4-74
C.
Promulgation of Judgment
4-75
D.
Modification of Judgment
4-77
E.
Entry of Judgment
4-77
VII.
MOTION FOR NEW TRIAL OR RECONSIDERATION
4-78
A.
Grounds for New Trial
4-78
B.
Ground for Reconsideration
4-78
C.
Form of Motion for a New Trial or Reconsideration
4-78
D.
Steps to Take
4-79
Checklist I - Steps from Filing of Application to Referral Thereof to Probation Officer
4-79
SampleProbation Court Forms
4-81
Checklist II - Steps from receipt of Post-Sentence Investigation Report to issuance of Probation Order
4-84
Checklist III - How to Deal with Incidents During Probation
4-85
Sample forms Revoking/Modifying Conditions of Probation
4-88
VIII.
ISSUANCE OF SEARCH WARRANTS
4-91
A.
Rule on Forum Shopping
4-91
B.
Meaning of Probable Cause
4-92
C.
Basis of Probable Cause; Personal Knowledge
4-92
1.
Meaning of knowledge; test is liability for perjury
4-92
2.
Insufficiency of affidavits
4-93
3.
Prudente v. Hon. Executive Judge A.M. Dayrit
4-93
4.
Factors that may be considered in determination of probable cause
4-94
5.
The need of competent proof of particular acts or specific omissions
4-95
6.
Probable cause to be determined only by judge
4-96
7.
Manner of examination
4-97
8.
Examination is heard ex-parte and may be done in chambers but action must be expedited
4-97
9.
The need for searching questions and answers by the judge
4-98
10.
Requisite of particular description of things to be seized
4-99
11.
Tests to determine Particularity
4-100
12.
Description of place to be seized
4-100
13.
Determination of whether search warrant describes premises with particularity
4-101
IX.
PROVISIONAL REMEDIES
4-102
CRIMINAL PROCEDURE PART TWO
PROCEDURE IN SANDIGANBAYAN
I.
STAGES TN CRIMINAL CASES
4-103
II.
CIVIL CASES
4-105
III.
PROCEDURE ON APPEALED CASES
4-106
EVIDENCE BASIC PRINCIPLES AND SPECIAL PROBLEMS
I.
WHEN EVIDENCE IS NECESSARY
5-1
II.
ADMISSIBILITY OF EVIDENCE
5-2
A.
Axiom of Admissibility of Evidence
5-2
B.
Proper Presentation of Evidence
5-3
1.
Object evidence
5-3
2.
Oral evidence
5-3
3.
Documentary evidence
5-4
C.
Formal Offer of Evidence; Need for Statement of the Purpose of Evidence
5-5
III.
MODES OF EXCLUDING INADMISSIBLE EVIDENCE
5-7
A.
Evidence is objected to at the time it is offered and not before
5-7
B.
Motion to strike out answer to testimony
5-7
C.
Objections and Ruling
5-8
IV.
LAYING THE FOUNDATIONS FOR EVIDENCE
5-12
A.
Judicial Notice
5-12
1.
Mandatory and discretionary judicial notice
5-12
2.
Hearing the parties on discretionary judicial notice
5-13
3.
Judicial notice of proceedings in another case
5-13
B.
Admissions: Judicial and Extra-Judicial
5-14
C.
Best Evidence Rule
5-17
D.
Parol Evidence Rule
5-19
E.
Admissibility of Extra-Judicial Confessions
5-19
F.
Examination of Witnesses
5-21
G.
Authentication and Proof of Documents
5-24
H.
Tender of Excluded Evidence
5-26
JUDICIAL ETHICS
I.
THE ROLE OF THE JUDGE
6-1
II
ETHICAL RULES OF JUDICIAL CONDUCT
6-3
1.
Necessity and Sources of Judicial Ethics
6-3
2.
Ethical Rules Relating to Competence
6-3
3.
Ethical Rules Relating to Independence
6-9
4.
Ethical Rules Relating to Integrity
6-13
5.
Social Justice
6-15
JUDICIAL REASONING, WRITING AND RESEARCH: JUDICIAL REASONING
I.
METHODS OF REASONING
7-1
1.
Analogy
7-1
2.
Induction
7-2
3.
Deduction
7-2
II.
FREQUENTLY COMMITTED FALLACIES
7-3
1.
Misplaced authority
7-3
2.
Post hoc, ergopropter hoc
7-3
3.
Tu quoque
7-3
4.
Dicta simpliciter
7-3
5.
Argumentum adpopulum
7-3
6.
Argumentum ad baculum
7-3
III.
THE LOGICAL FLOW IN CASE ANALYSIS
7-4
JUDICIAL REASONING, WRITING AND RESEARCH: JUDICIAL WRITNG
I.
INTRODUCTION
7-7
II.
POINTERS FOR JUDICIAL WRITING
7-7
1.
The Three “Cs” in Judicial Writing
7-7
1.1
Use of single words in place of several words
7-8
1.2
Diction
7-8
1.3
Spell words correctly
7-13
1.4
Verbs not followed by prepositions
7-13
2.
Writing Style
7-13
2.1
Stages of writing process
7-13
2.2
Pointers on style
7-14
2.3
Effective sentences
7-20
JUDICIAL REASONING, WRITING AND RESEARCH: GLOSSARY OF LEGAL TERMS
GLOSSARY OF LEGAL TERMS 7-25
JUDICIAL REASONING, WRITING AND RESEARCH: JUDICIAL RESEARCH
I.
INTRODUCTION
7-29
II.
CONDUCTING LEGAL RESEARCH
7-29
1.
Critical Fact-Related Steps that Must Precede Research in Law Books
7-29
1.1
Gathering the facts
7-29
1.2
Analyzing the facts — the TARP rule
7-30
1.3
Identifying the legal issues
7-30
1.4
Organizing the legal issues in a logical order
7-30
1.5
Doing legal research
7-31
2.
Law Finding Techniques
7-31
2.1
Approaches
7-31
3.
Classifying the Issues Involved in the Problem
7-31
4.
Finding the Law
7-31
4.1
Sources of law
7-31
5.
Research in Statutory Law
7-34
5.1
Constitution
7-34
5.2
Treaties and international agreements
7-35
5.3
Statutes proper
7-35
5.4
Administrative regulations and rules
7-37
5.5
Ordinances
7-38
5.6
Court Rules
7-38
5.7
Military rules
7-39
6.
Researching in Case Law
7-39
6.1
Types of case law
7-39
6.2
Supreme Court decisions
7-39
6.3
Court of Appeals decisions
7-40
6.4
Other courts
7-40
6.5
Decisions of administrative agencies and boards
7-40
6.6
American setting
7-40
7.
Reading the Law
7-41
7.1
Internal evaluation
7-42
8.
Updating the Law
7-41
9.
Writing Your Decision
7-42
10
General Pointers in Legal Research
7-42
III.
CONCLUSION
7-43
COURT AND CASE MANAGEMENT: TRIAL COURT PERFORMANCE STANDARDS AND MEASUREMENT
I
INTRODUCTION
8-1
II
KEY ELEMENTS OF MEASURES
8-1
1.
Methods
8-1
2.
Tools
8-2
3.
People
8-2
III
CREATION OF CORE TEAM
8-2
IV
APPLICATION OF MEASURES
8-3
1.
Court Reviews and Case Data Examination
8-3
2.
Observations and Simulations
8-3
3.
Surveys and Questionnaires
8-4
4.
Interviews
8-4
5.
Group Technique
8-4
COURT AND CASE MANAGEMENT: TOTAL QUALITY MANAGEMENT
I.
Concept
8-5
II
Rationale
8-5
III
Organizing a TQM-CORE Team
8-5
1.
Developing Leadership Qualities
8-5
2.
Applying Teamwork Concepts
8-6
3.
Formulating Vision and Mission Statements and Implementing Strategies
8-6
4.
Values
8-7
IV
Setting up an Ideal Climate for TQM Implementation
8-7
1.
The Self-Assessment Process
8-7
2.
Assessment of Facilities
8-8
3.
Regular Evaluation Meetings
8-8
V.
Case Management
8-9
1.
Concept and Purpose
8-9
2.
Objectives of Case Management
8-9
3.
Basic Principles
8-9
4.
Five Steps to Caseflow Management
8-10
5.
Implementing Guidelines
8-11
VI
Records Management
8-12
1.
Concept
8-12
2.
Types of Trial Court Records
8-12
3.
Protection and Preservation of Records
8-13
4.
Destruction of Records
8-14
VII
Pre-Trial as Component of Caseflow Management
8-15
1.
Nature, Concept and Purpose
8-15
2.
Rules on Pre-Trial
8-15
3.
The Mechanics of Pre-Trial
8-15
4.
The Pre-Trial Order
8-18
Annex “A” - Sample Chart for Fast Track System
8-19
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