GROUP 5

CHAPTER 4 – CLINICAL LAWYERING AND COUNSELLING

(FEAR OF LITIGATION – J. CRITERION ON DETERMINING
WHETHER SUBJECT IS CAPABLE OF PECUNIARY ESTIMATION)

SUBMITTED BY:

ALDEZA, DANIEL

GATCHALIAN, JOEY

LUMAGUE, MONICA

MACABABBAD, REALYN

TOLENTINO, LENIN KING

SUBMITTED TO:

ATTY. DAVID BALLESTEROS

I. Negotiation

Characteristic: It is essentially conciliatory in nature participated in by two or more parties

usually with the assistance of their respective counsels. It may be initiated by counsels who
propose overtures on the terms and conditions for the settlement of a controversy or justiciable
issue, progressing into a bilateral hard bargaining over the table.

How may it be conducted?

1. It may be conducted by lawyers of both parties without a special authority. This is subject to
the ratification of client.

2. It may be conducted with the client's prior authority before the terms become the basis of an
out of court settlement.

3. It may be conducted even during litigation to force down the necessity of amicable
settlement to avoid court trials.

II. Factors that influence negotiations

1. Fear of litigation by potential litigants

• Considerations such as the propensity of wrecking his family life and the future of his
children, as well as financial burden of litigation, weighs heavily on a litigant's mind.

2. Fear of incurring unnecessary expenses of litgation

• Clients are hounded by the prospect of litigation expenses, particularly exorbitant

lawyer's fees.

3. Fear of suffering mental torture, anxiety, social humiliation, character assasination and
family ruin

• A lawyer must avoid making false promises and pursue an illegal and immoral course of
action just to please his client, when the latter is gripped by the feeling of insecurity.

4. Desire on the part of lawyers to rake fat incentives without undergoing tedious court
hearings

• It is the tendency of a lawyer to resort to negotiation especially when he could

accomplish the same end that he would have achieved through litgation.
5. Psychological pressure induced by court warnings and active participation

III. Other persons who may play as negotiator

1. It is advisable to hire the services of experienced brokers for purpose of pushing the parties
to negotiating table especially when the relations of the parties are too strained or their lawyers
are too proud to make the first move to negotiate. These brokers or agents are interested in
commissions.

2. Fly-by-night operators, most of whom are court employees, contribute to out of court
settlement. Their acts must not border on bribery or corrupt practices.

3. A judge may play an active role of negotiator. However, a judge must have a reputation for
integrity and sincerity to be an effective negotiator. By playing as a negotiator, a judge shows his
interest in the early disposal of a case.

4. It is during the pre-trial stage that the trial judge proves himself as an effective negotiator. He
plays master of ceremonies.

Pre-trial conference a keystone to abbreviate litigation

When the case has been placed in the trial calendar, the first task of the court is to call the parties to a
pre-trial conference. It is during this stage of court proceedings that the Judge ought

to play the key-man role, and it is precisely at this pre-trial stage that his leadership and mettle in judicial
statesmanship is tested and is badly needed. He is likened to a conductor in a

concert who leads the orchestra with his baton and a Floor manager at a stage show. As floor manager
he controls the show and tells the parties when to start and stop talking.

Advance opinion of presiding judge not pre-judgment

It is however a misimpression and wrong conclusion to say that simply because the Presiding Judge has
made a comment about his position or off-hand opinion On the matter pending before him, he has
already pre-judged the case.

According to the late Justice Antonio Barredo:

Prejudgment - you form your own opinion before you have read the pleadings. You come to know of a
case and before you have read any of the pleadings, you are already in favor of the defendant or of the
plaintiff as the case may be.
Advanced judgment - when you can tell from the pleadings what the law is, that is not prejudgment.

Preliminary conference pursuant to rule 48 precedes pre-trial (A.M. No. 03-1-09-SC)

A. Civil Cases

Within one day from receipt of the complaint:

1.1. Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a
motion to dismiss and instead allege the conformity with IBP-OCA Memorandum on Policy Guidelines
dated March 12,2002.

1.2.The court shall issue an order requiring the parties to avail of Rule 25 and Rule 26 or at their
discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five
(5) days from the filing of the answer. A copy of the order shall be served upon the defendant together
with the summons and upon the plaintiff.

Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex-parte that the
case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the
Branch COC shall issue a notice of pre-trial.

2. The parties shall submit. At least three (3) days before the pre-trial, pre-trial briefs containing the
following:

A. A statement of their willingness to enter into an amicable settlement indicating the

desired terms thereof or to submit the case to any of the alternative modes of
dispute resolution:

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. No evidence

shall be allowed to be presented and offered during the trial in support of a
party's evidence-in-chief other than those that had been earlier identified and pre-
marked during the pre-trial, except if allowed by the court for good cause
shown;

E. A manifestation of their having availed of or their intention to avail themselves of

discovery procedures or referral to commissioners; and
 F. The number and names of witnesses, the substance of their testimonies, and the
approximate number of hours that will be required by the parties for the
presentation of their respective witnesses;

The rule on the contents of the pre-trial brief must strictly be complied with.

The parties are bound by the representations and statements in their respective pre-trial briefs.

3. At the start of the pre-trial conference, the judge shall immediately refer the parties to the PMC
mediation unit for purposes of mediation if available.

If mediation fails, the judge will schedule the continuance of the pre-trial conference. Before the
continuance, the Judge may refer the case to the Branch COC for a preliminary conference to assist the
parties in reaching a settlement to mark the documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison and to consider such other matters as may
aid in its prompt disposition.

During the preliminary conference the Branch COC shall also ascertain from the parties the undisputed
facts and admissions on the genuineness and due execution of the documents marked as exhibits. The
proceedings during the preliminary conference shall be recorded in the "Minutes of Preliminary
Conference" to be signed by both parties and/or counsel. The minutes of preliminary conference and the
exhibits shall be attached by the Branch COC to the case record before the pre-trial.

4. Before the continuation of the pre-trial conference the judge must study all the pleadings of the case,
and detemine the issues thereof and the respective positions of the parties thereon to enable him to
intelligently steer the parties toward a possible amicable settlement of the case, or at the very least to
help reduce and limit the issues.

The court shall initially ask the parties and their lawyers if an amicable settlement of the case is possible.
If not, the judge may confer with the parties with the opposing counsel to consider the following:

a. Given the evidence of the plaintiff presented in his pre-trial brief to support his claim,
what manner of compromise is considered acceptable to the defendant at the present
stage?

b. Given the evidence of the defendant described in his pre-trial brief to support his
defense, what manner of compromise is considered acceptable to the plaintiff at
the present stage?

If not successful, the court shall confer with the party and his counsel separately.
 If the manner of compromise is not acceptable, the judge shall confer with the parties without
their counsel for the same purposes of settlement.

5. If all efforts to settle fail, the trial judge shall:

a. Adopt the minutes of the preliminary conference as part of the pre-trial proceedings
and confirm markings of exhibits or substituted photocopies and admissions on
the genuineness and due execution of documents.

b. Inquire if there are cases arising out of the same facts pending before other courts
and order its consolidation if warranted:

c. Inquire if the pleadings are in order, if not, order the amendments if necessary;

d. Inquire if interlocutory issues are involved and resolve the same;

e. Consider the adding or dropping of parties.

f. Scrutinize every single allegation of the complaint, answer and other pleadings and
attachments, thereto and the contents of documents and all other evidence
identified and pre-marked during pre-trial in determining further admissions, of
facts and documents.

To obtain admissions, the Court shall ask the parties to submit the depositions taken
under Rule 23, under Rule 25 and under Rule 26. It may also require the
production of documents or things requested by a party under Rule 27 and the
results of the physical and mental examination of persons under Rule 28;

g. Define and simplify the factual and legal issues arising from the pleadings.
Uncontroverted issues and frivolous claims or defenses should be eliminated.
For each factual issue, the parties/counsel shall state all the evidence to support
their positions thereon. For each legal issue, parties/counsel shall state the applicable
law and jurisprudence supporting their respective positions thereon. If
only legal issues are presented, the judge shall require the parties to submit their
respective memoranda and the court can proceed to render judgment.
 h. Determine the propriety of rendering a summary judgment dismissing the case based
on the disclosures made at the pre-trial or a judgment based on the pleadings,
evidence identified and admissions made during pre-trial;

 If all efforts to settle fail, the trial judge shall:

1. Define and simplify the factual and legal issues arising from the pleadings.

2. Uncontroverted issues and frivolous claims or defences should be eliminated.

3. Ask the parties to agree on the specific trial dates for continuous trial.

 During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all
questions or comments by counsel or parties must be directed to the judge to avoid hostilities
between the parties.

 All the proceedings during the pre-trial shall be recorded. The minutes of each pre-trial
conference shall contain matters taken up therein more particularly admissions of facts and exhibits
and shall be signed by the parties and their counsel.

 The judge shall issue the required Pre-Trial Order within ten (10) days after the termination of
the pre-trial. Said Order shall bind the parties, limit the trial to matters not disposed of and control
the course of the action during the trial.

 The court shall endeavour to make the parties agree to an equitable compromise or settlement
at any stage of the proceedings before rendition of judgment.

B. Criminal Cases

 Before arraignment, the Court shall issue an order directing the public prosecutor to submit the
record of the preliminary investigation to the Branch Clerk of Court (COC) for the latter to attach
the same to the record of the criminal case.

 After the arraignment, the court shall forthwith set the pre-trial conference within thirty (30)
days from the date of arraignment and issue and order:

a) Requiring the private offended party to appear thereat for purposes of plea bargaining;

b) Referring the case to the Branch COC, of warranted for a preliminary conference;
 c) Informing the parties that no evidence shall be allowed to be presented and offered
during the trial other than those identified and marked during the pre-trial.

 During the preliminary conference, the Branch COC shall assist the parties on reaching a
settlement of the civil aspect of the case, mark the documents to be presented as exhibits and
copies thereof attached to the records after comparison, ascertain from the parties the
undisputed facts and admissions on the genuineness and due execution of documents marked
as exhibits.

 Before the preliminary conference the judge must study all the pleadings of the case, and
determine the issues thereof and the respective positions of the parties thereon to enable him
to intelligently steer the parties toward a possible amicable settlement of the case.

 The Judge with all tact, patience, impartiality and with due regard to the rights of the parties
shall endeavour to persuade them to arrive at a settlement of the dispute. The Court shall
initially ask the parties and their lawyers if an amicable settlement of the case is possible.

If not, the judge may confer with the parties with the opposing counsel to consider the
following:

a) What manner of compromise is considered acceptable to the defendant at the present

stage?

b) What manner of compromise is considered acceptable to the plaintiff at the present

stage?

If not successful, the court shall confer with the party and his counsel separately.
If the manner of compromise is not acceptable, the judge shall confer with the parties
without their counsel for the same purposes of settlement.

 If all efforts to settle fail, the trail judge shall:

a) Adopt the minutes of preliminary conference as part of the pre-trial proceedings and
confirm markings of exhibits or substituted photocopies and admissions on the
genuineness and due execution;

b) Inquire if there are cases arising out of the same facts pending before other courts and
order its consolidation if warranted;

c) Inquire if the pleadings are in order, if not, order the amendments if necessary;

d) Inquire if interlocutory issues are involved and resolve the same;

e) Consider adding or dropping of parties;

 f) Scrutinize every single allegation of the complaint, answer and other pleadings and
attachments thereto and the contents of documents and all other evidence identified
and pre-marked during the pre-trial in determining further admissions of facts and
documents;

g) Define and simplify the factual and legal issues arising from the pleadings.
Uncontroverted issues and frivolous claims or defences should be eliminated;

h) Determine the propriety of rendering a summary judgment dismissing the case based on
the disclosures made at the pre-trial or a judgment based on the pleadings, evidence
identified and admissions made during the pre-trail;

i) Ask the parties to agree on the specific trial dates for continuous trial; adhere to the case
flow chart determined by the court, which shall contain the different stages of the
proceedings up to the promulgation of the decision and use the time frame for each
stage in setting the trial dates. The One-Day Examination of Witness Rule, that is, a
witness has to be fully examined in one (1) day only, shall be strictly adhered to subject
to the court’s discretion during trial on whether or not to extend the direct and/or cross-
examination for justifiable reasons.

S.C. Circular No. 1-89 dated January 19, 1989

A. Pre-trial Elements

a. The parties shall submit at least three (3) days before the conference pre-trial briefs containing
the following:

1. Brief statement of the parties' respective claims and defenses;

2. The number of witnesses to be presented;

3. An abstract of the testimonies of witnesses to be presented by the parties, and the

approximate number of hours that will be required by them for the presentation of their
respective evidence;

4. Copies of all documents intended to be presented;

5. Admissions;

6. Applicable laws and jurisprudence;

7. The parties' respective statement of the issues; and

8. The available trial dates of counsel for complete evidence presentation, which must be
within a period of three months from the first day of trial.
 b. At the pre-trial conference

1. The judge with all tact and patience shall endeavor to persuade the parties to arrive at a settlement of
the dispute, or agree to stipulation of facts including the authenticity of documents to be submitted
during the trial.

2. The judge shall then define the factual issues arising from the pleadings and endeavor to narrow them
down to material issues.

3. If only legal issues are presented, the judge shall require the parties to submit their respective
memoranda on the issues, and shall render judgment thereon.

4. If a trial is to be conducted, the judge shall fix the necessary trial dates to complete presentation of
evidence by both parties within 90 days from initial hearing.

c. The pre-trial order shall include the following:

1. A statement of the nature of the case;

2. The stipulations or admissions of the parties including testimonial and documentary evidence;

3. The issues involved: (1) factual and (2) legal;

4. Number of witnesses;

5. The dates of trial.

d. This is without prejudice to a finding that either judgment on the pleadings or summary judgment is
appropriate.

e. Failure to file pre-trial briefs may be given the same effect as the failure to appear at the pre-trial.

B. Filing of complaint

 When all of avenues for negotiation and amicable settlement have failed, the counsel has no other
recourse but to bring the matter to court, for the protection of his client’s interest.

 The judge has only up to where his efforts and ability to negotiate can reach, and without the cooperation
of the party litigants, the Judge can do nothing to consummate settlement.

 Assuming the counsel had completed the interview with the client, gathering of evidence and witnesses,
the next step is to ascertain to which court or quasi-judicial body has jurisdiction.

a. Meaning of jurisdiction in a legal point of view

  is the power of the court to decide a matter in controversy and presupposes the existence of a duly
constituted court with control over the subject matter and the parties;

 defines the power of the courts to inquire into facts, apply the law, make decisions, and declare
judgment;

 power and authority of justice to hear and determine a judicial proceeding;

 the power to render a particular judgment in question;

 the right and power of the court or quasi-judicial body to adjudicate concerning the subject matter in
a given case (Black’s Law Dictionary, p 853)

b. Territorial jurisdiction defined

 the power of the court to exercise jurisdiction to adjudicate cases committed or which occurred
within the territory defined by law or the Supreme Court

c. Jurisdiction over the subject matter

 the power to hear and determine cases of general class to which the proceedings in question
belongs;

 the power to deal with the general subject involved in the action

 it is conferred by law

d. Jurisdiction over the person

 the power of the court or quasi-judicial agency or administrative body to subject the person of
the defendant or respondent and to bind him of all judgments and orders of said court or quasi-
judicial body that may be rendered by it with the force of law

e. Jurisdiction over the res or property

 is that obtained by a seizure of the property under legal process of the court, whereby it is held to
abide by such order as the court makes, and with respect to the persons whose rights in the
property are to be affected, jurisdiction may be attained by constructive service of process
f. Modes of acquiring jurisdiction

 Jurisdiction over the subject matter is acquired/conferred by law.

 Jurisdiction over the person is acquired by either the voluntary submission or appearance of the
party to the authority and control of the court or quasi-judicial body, or by the coercive power or
legal process exerted over the person of the defendant or respondent.

 Venue may be the subject of the agreement of the parties, jurisdiction cannot because it is fixed
by law.

 In criminal cases, the court must have jurisdiction over :

a) the subject matter of the offense;

b) the territory wherein one of the essential ingredients of the offense took place;

c) the parties

 In private crimes, jurisdiction is acquired by the filing of the complaint by the private offended
party.

 In public crimes, jurisdiction over the subject matter of the offense is provided by law.

 In civil cases, venue may be waived by the parties; in criminal cases, venue or place of
commission of a crime is jurisdictional; in meritorious cases, where the health condition of the
accused poses to be a primary consideration, the place of trial may be changed by the Supreme
Court.

 In continuing offense, where any of the essential ingredients of the crime took place, the courts
of the different places where any of those ingredients of the offense was committed, can exercise
concurrent jurisdiction and the charges may be filed with any of said courts.

 In cases falling under the jurisdiction of the Sandiganbayan, and in libel cases wherein the
jurisdiction falls on the court

a) where the libelous material is printed and first published, or

 b) where any of the offended parties actually resides, or

c) in case of a public officer, where he holds office at the time of the commission of the
offense

g. Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts

a. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the value of the personal
property, estate, or amount of the demand does not exceed One hundred thousand pesos
(P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the
demand does not exceed Two hundred thousand pesos (P200,000.00), or in Metro Manila
where such personal property, estate, or amount of the demand does not exceed Four
Hundred Thousand Pesos (P400,000.00), exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, the amount of which must be specifically
alleged. However, interest, damages of whatever kind, attorney’s fees, litigation expenses,
and costs shall be included in the determination of the filing fees.

b. Exclusive original jurisdiction over admiralty and maritime cases where the demand or claim
does not exceed Two hundred thousand pesos (P200,000.00).

Where there are several claims or causes o actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the claims in all the causes of action
irrespective of whether the causes of action arouse out of the same or different transactions.

h. Cases to which the Rules on Summary Procedures shall apply

A. Civil Cases

1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages
or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same
shall not exceed twenty thousand pesos (P20,000.00).
 2) All other civil cases, except probate proceedings, where the total amount of the
plaintiff's claim does not exceed ten thousand pesos (P10,000.00), exclusive of interest
and costs.

B. Criminal Cases

1) Violations of traffic laws, rules and regulations;

2) Violations of the rental law;

3) Violations of municipal or city ordinances;

4) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, that in offenses involving damage to property
through criminal negligence, this Rule shall govern where the imposable fine does not
exceed ten thousand pesos (P10,000.00).

i.) Jurisdiction of Regional Trial Courts

A. Original and exclusive jurisdiction

The Regional Trial Courts exercise exclusive original jurisdiction in the following:

(a) Civil actions in which the subject of litigation is incapable of pecuniary estimation.
(b) Civil actions which involve the title to, or possession of, real property, or any interest
therein, where assessed value of the property involve exceeds Twenty Thousand
Pesos (P20, 000.00) or, for civil actions in Metro Manila, where such value exceeds
Fifty Thousand pesos (P50,000.00) except actions for forcible entry into and unlawful
detainer of lands or of buildings, the original jurisdiction over which is conferred
upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts.
(c) Actions in admiralty and maritime jurisdiction where the demand or claim exceeds
Two Hundred Thousand Pesos (P200,00.00) or, in Metro Manila, where such demand
or claim exceeds Four Hundred pesos (P400,00.00).
(d) Matters of probate, both testate and intestate, where the gross value of the estate
exceed Two Hundred pesos (P200,00.00) or, in probate matters in Metro Manila,
where such gross value exceeds Four Hundred Thousand Pesos (P400,000.00).
(e) Actions involving the contract of marriage and marital relations.
(f) Cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions
(g) Civil actions and special proceedings falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as
now provided by law. (Note: These cases now fall under the Jurisdiction of Family
Courts)
 (h) Other cases in which the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs or the value of the property in
controversy, exceeds Two Hundred Thousand pesos (P200,000.00) or, in such other
cases in Metro Manila, where the demand exclusive of the abovementioned items
exceeds Four Hundred Thousand Pesos (P400,000.00)

j.) Criterion in determining whether or not subject is not capable of pecuniary estimation

Principal action – recovery of a sum of money (claim I capable of pecuniary estimation)

Jurisdiction – depends on the amount of claim.

Money claim is purely incidental to, or consequence of principal relief sought – exclusively
cognizable by the Regional Trial Court

Example of actions incapable of pecuniary estimation:

(a) Action for annulment of marriage, contract or Deed of Declaration of Heirs;

(b) Action for annulment of partition of land regardless of the assessed value of the
land; the complaint for partition which under RA 7691 falls within the
jurisdiction of MTC, is merely incidental to the main action of annulment;
(c) Action for expropriation or eminent domain.
(d) Action for specific performance, support pendent lite;
(e) Action for annulment of judgement, annulment of mortgage, deed of sale and to
recover the price;
(f) Independent action for rescission of contract or as incident to action for specific
performance;
(g) Action for declaration of absence, for foreclosure of mortgage.
(h) Action for abatement of nuisance.

NOTE: foreclosure of mortgage is capable of pecuniary estimation – if contains

a prayer for foreclosure of a chattel mortgage involving personal worth more
than P2,000.00, cognizable by the RTC (Pestolante v. Barimbao

The following are pleadings which must be verified

(a) Petition for review on certiorari under Rule 45, and petition for certiorari under
Rule 65;
(b) Petition for prohibition, mandamus, quo warranto, injunction;
(c) Petition for habeas corpus (Sec. 3, Rule 102);
(d) Petition for change of name (Sec. 3, Rule 103);
(e) Petition for voluntary dissolution of corporation (Sec. 2, Rule 104);
(f) Complaint for forcible entry or unlawful detainer;
(g) Petition for appointment of general guardian;
(h) Petition for leave to sell or encumber estate of ward;
(i) Petition that competency of ward be judicially determined;
 (j) Complaint for replevin;
(k) Complaint with prayer for attachment;
(l) Answer to complaint for usury;
(m) Petition for adoption, hospitalization of insane;
(n) Petition filed or signed by a party litigant;
(o) Petition for custody of minor;
(p) Complaint with prayer for temporary restraining order;
(q) Complaint for appointment of receiver;
(r) Petition for probate of a will;
(s) Complaint for recovery of termination pay, reinstatement due to illegal dismissal
under the Labor Code; Memorandum of appeal from decision of Labor Arbiter to
NLRC;
(t) Complaint with the prayer for TRO and preliminary injunction before the
Department of Agrarian Reform Adjudication Board;
(u) Petition for Intestacy and for the Distribution of estate of deceased;
(v) Petition for registration of imperfect title under Act 496;
(w) Petition for registration of Articles of Incorporation with the SEC;
(x) Complaint for Damages with TRO and preliminary mandatory injunction arising
from the Defamation and Libelous publications;
(y) Petition for reversion of private land to the public domain, covered by a fake or
fraudulent certificate of title;
(z) Complaint for annulment of title with TRO and damages;

NOTE: Certification on non-forum shopping is required to be embodied in the body

of the petition or in separate page. Failure will cause the outright dismissal of the initiatory pleading.