PRACTICE COURT I

CHAPTER I THE LAWYER AND THE LEGAL

PROFESSION

The Legal Profession

-

The legal profession is a branch of the

administration of justice (Jayme v. Bualan).
It is a profession whose main purpose is to aid
in the doing of justice according to the law
between the state and the individual and
between man and man (Rosenthal v. State Bar
Examining Committee).
It is imbued with public interest, because it is
intimately connected with the exercise of
judicial power in the administration of justice.

Practice of law
As generally understood
It is the doing or performing of services in a court
of justice in any manner depending therein throughout
its various stages, but in a larger sense includes legal
advice and counsel, and the preparation of instruments
and contracts by which legal rights are secured.
Modern concept
Includes activities done outside court and having
no immediate relation to proceedings in court such as
conveyancing, giving of legal advice on a large variety
of subjects, and the preparation and execution of legal
instruments concerning an extensive field of business
and trust relations and other affairs).
Cayetano v. Monsod (1991)
Practice of law means any activity, in or out of
court, which requires the application of law, legal
procedure, knowledge, training and experience. To
engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally,
to practice law is to give notice or render any kind of
service, which device or service requires the use in any
degree of legal knowledge or skill.
Thus: Interpreted in the light of the various
definitions of the term practice of law, particularly
the modern concept of law practice, and taking into
consideration the liberal construction intended by the
framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager,
a lawyer-entrepreneur of industry, a lawyer-negotiator
of contracts, and a lawyer-legislator of both the rich
and the poorverily more than satisfy the
constitutional requirementthat he has been engaged
in the practice of law for at least ten years.
Attorneys defined
-

The term attorney has a fixed and general

signification, and has reference to that class of
persons who are by license constituted officers
of courts of justice, and who are empowered to
appear and prosecute and defend, and on
whom peculiar duties, responsibilities, and
liabilities are devolved by law in consequence
(Cui v. Cui).

Courts constituency to aid it in the

administration of justice (Dodge v. State).
An attorney may in short be defined as a man
set apart by the law to expound to all persons
who seek him the laws of the land relating to
the high interest of property, liberty, and life
(Planters Bank v. Hornberger).
They are regarded as quasi officers of the court
whose duties are quasi-judicial.

What constitutes practice of law?

Practice refers to the actual performance or
application of knowledge as distinguished from mere
possession of knowledge; it connotes an active,
habitual, repeated or customary action. To practice law,
or any profession for that matter, means to exercise or
pursue an employment or profession actively,
habitually, repeatedly or customarily. (Dissenting
Opinion of J. Padilla in Cayetano v. Monsod).
Essential criteria determinative of engaging in
the practice of law (HACA)
1.
2.
3.
4.

Habituality;
Application of law, legal procedure, knowledge,
training and experience;
Compensatory; and
Attorney-client relationship (Ibid)

NB: It appears that a great number of lawyers do not agree

with the main ruling in Cayetano v. Monsod and would rather
share the sentiment of Justice Padilla. Even in Justice
Pamarans book, he quoted portions of Justice Padillas
opinion but not the main ruling.

Characteristics
distinguishing
profession from a business
1.

2.
3.
4.

the

legal

A duty of public service, of which emolument is

a by-product, and in which one may attain the
highest eminence without making much
money;
A relation as officer of the court to the
administration of justice involving thorough
sincerity, integrity and reliability;
A relation to client in the highest degree of
fiduciary;
A relation to colleagues at the bar
characterized
by
candor,
fairness,
and
unwillingness to resort to current business
methods of advertising and encroachment on
their practice, or dealing directly with their
clients (Petition for Authority to Continue Use
of the Firm Name Sycip, Salazar, Feliciano,
Hernandez & Castillo).

Who may practice law

The practice of law is affected with public interest,
and it is therefore the rights and duty of the state to
regulate and control it, so that public welfare will be
served and promoted (In re: Sycip). The power to
regulate and define the practice of law is a prerogative
of the judicial department
Sec. 1, Rule 138 of the Rules of Court

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Any person heretofore duly licensed as a member

of the bar, or hereafter admitted as such in accordance
with the provisions of this rule, and who is in good and
regular standing, is entitled to practice law.

Good standing means:

a. He has paid all membership dues and
all authorized special assessments,
plus charges owing thereon; and
b. Not under suspension from the practice
of law or from membership privileges
(Rule 139-A and Sec. 20, Art. II of IBP
By-Laws)

Sec. 2, Rule 138 (Requirements for all applicants

for admission to the bar)
Every applicant for admission as a member of the
bar must be:
1.
2.
3.
4.
5.

A citizen of the Philippines;

At least 21 years of age;
Of good moral character;
A resident of the Philippines;
And must produce before the Supreme Court
satisfactory
evidence of good moral
character, and that no charges against him,
involving moral turpitude, have been filed or
are pending in any court in the Philippines.

Note: Only those five are enumerated under Sec. 2,

Rule 138, but we might as well add:
6.
7.

Possesses
the
required
educational
qualifications; and
Must have passed the bar examinations.

4.

5.

6.

Public officials who cannot practice law (Absolute

Prohibition)
1.
2.
3.
4.
5.
6.
7.

8.
9.

1.

XPNS:

2.

3.

A law student who has successfully

completed his 3rd year of the regular four-year
prescribed law curriculum and is enrolled in a
recognized law schools clinical legal education
program approved by the Supreme Court;
provided that such law student may without
compensation in any civil, criminal or
administrative case before any trial court,
tribunal, board or officer, to represent indigent
clients accepted by the legal clinic of the law
school. The appearance of the law student shall
be under the direct supervision and control of a
lawyer (Rule 138-A);
A party to a litigation in person in any court
or through the aid of an agent or friend
appointed by him for that purpose in cases
which the MTC has jurisdiction (Sec. 34, Rule
138);
If the case is pending before the RTC,
the party cannot be represented by an
non-lawyer agent or friend.
In criminal cases before the MTC where a
duly licensed member of the Bar is not
available, the court may appoint any person of
good repute for probity and ability in the
province to defend the accused (Rule 116, Sec.
7);

Judges and other court officials and employees;

SolGen and its officials and employees;
Government Prosecutors;
President,
Vice-President
and
Cabinet
Members,
including their deputies and
assistants;
Constitutional Commission members;
Ombudsman and his deputies;
Civil Service officers or employees whose
duties and responsibilities require that their
entire time be at the disposal of the
government;
Governors and mayors; and
Others prohibited by special law

Public officials who can practice law but with

restrictions (Relative Prohibition)

GR: Only members of the Bar may practice law.

1.

Non-lawyers may appear before the NLRC or

any Labor Arbiter only if (a) they represent
themselves or (b) if they represent their
organization or members thereof;
Under the Cadastral Act, any person can
represent himself or a claimant before the
Cadastral Court (Sec. 9, Act 2259 or the
Cadastral Act);and
Any person appointed to appear for the
Government of the Philippines in accordance
with law (Sec. 33, Rule 138)

2.

3.

A lawyer member of the legislature is

prohibited from appearing as counsel before
any court of justice or before the Electoral
Tribunals,
or
quasi-judicial
and
other
administrative bodies. (Art. VI, Sec. 14, 1987
Constitution);
Members of the Sanggunian may engage in
the practice of law except in the following:
a. They shall not appear as counsel
before any court in any civil case
wherein a local government unit or any
office, agency or instrumentality of the
government is the adverse party;
b. They shall not appear as counsel in any
criminal case wherein an officer or
employee of the national or local
government is accused of an offense
committed in relation to his office;
c. They shall not collect any fee for their
appearance
in
administrative
proceedings
involving
the
local
government of which he is an official;
d. They shall not use the property and
personnel of the Government except
when
the
Sanggunian
member
concerned is defending the interest of
the government. (Sec. 90(b), R.A. No.
7160, Local Government Code of the
Philippines)
A civil service officer or employee whose
duty or responsibility does not require his
entire time to be at the disposal of the
Government may engage in the private
practice of law provided he can secure a

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4.

5.

written permit from the head of the

department concerned. (Sec. 12, Rule XVIII,
Revised Civil Service Rules; Ramos vs. Rada,
A.M. No. 202, July 22, 1975)
Retired judge or justice receiving pension
from the Government, cannot act as counsel in
a civil case in which the Government or any of
its subdivision or agencies is the adverse party
or in a criminal case wherein an officer or
employee of the Government is the accused of
an offense in relation to his office. (Sec. 1, R.A.
No. 910)
A former government attorney cannot, after
leaving
government
service,
accept
engagement or employment in connection with
any matter in which he had intervened while in
the said service. (Rule 6.03, Code of
Professional Responsibility)

1.

2.

Duty of Attorney to Court

A lawyer is duty bound to uphold the dignity and
authority of the court to which he owes fidelity
according to the oath he has taken as such attorney,
and not to promote distrust in the administration of
justice.
Code of Professional Responsibility

Duty of Attorney to Client

The relationship the lawyer has with respect to his

client is highly fiduciary.

But while an attorney is oath-bound to act with all

good fidelity both to his client and to the court, where
his duties to his clients conflict with those he owes to
the public as an officer of the court in the
administration of justice, the former must yield to the
latter.
Duties
under
Responsibility

the

Code

of

Professional

Canon 14 A lawyer shall not refuse his

services to the needy
Canon 15 A lawyer shall observe candor,
fairness and loyalty in all his dealings and
transactions with his clients.
Canon 16 A lawyer shall hold in trust all
moneys and properties of his client that may
come into his possession.
Canon 17 A lawyer owes fidelity to the cause
of his client and he shall be mindful of the trust
and confidence reposed in him.
Canon 18 A lawyer shall serve his client with
competence and diligence.
Canon 19 A lawyer shall represent his clients
with zeal within the bounds of the law.
Canon 20 A lawyer shall charge only fair and
reasonable fees.
Canon 21 A lawyer shall preserve the
confidences and secrets of his client even after
the attorney-client relation is terminated.
Canon 22 A lawyer shall withdraw his
services only for good cause and upon notice
appropriate in the circumstances.

Conflict of interest
A lawyer represents conflicting interests when, in
behalf of one client, it is his duty to contend for that
which duty to another client requires him to oppose.
In Gimeno v. Jaide (2015) , the Supreme Court laid
down the following tests to determine the presence of
conflict of interest:

Whether acceptance of new relation would

prevent the full discharge of a lawyers duty of
undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or doubledealing in the performance of that duty;
Whether the lawyer would be called upon in
the new relation to use against a former client
and confidential information acquired though
his connection or previous employment.

Canon 10 A lawyer owes candor, fairness

and good faith to the court.
Canon 11 A lawyer shall observe and
maintain the respect due to the courts and to
judicial officers and should insist on similar
conduct by others.
Canon 12 A lawyer shall exert every effort
and consider it his duty to assist in the speedy
and efficient administration of justice.
Canon 13 A lawyer shall rely upon the merits
of his cause and refrain from any impropriety
which tends to influence, or gives the
appearance of influencing the court.

Duty of Attorney to the Legal Profession

Code of Professional Responsibility

Canon 7 A lawyer shall at all times uphold

the integrity and dignity of the legal profession
and support the activities of the integrated bar.
Canon 8 A lawyer shall conduct himself with
courtesy, fairness and candor toward his
professional colleagues, and shall avoid
harassing tactics against opposing counsel.
Canon 9 A lawyer shall not, directly or
indirectly, assist in the unauthorized practice of
law.

Duties of attorneys under Sec. 20, Rule 138

1.
2.
3.

4.

5.

To maintain allegiance to the Republic of the

Philippines and to support the Constitution and
obey the laws of the Philippines;
To observe and maintain the respect due to the
courts of justice and judicial officers;
To counsel or maintain such actions or
proceedings only as appear to him to be just,
and such defenses only as he believes to be
honestly debatable under the law;
To employ, for the purpose of maintaining the
causes confided to him, such means only as
are consistent with truth and honor, and never
seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law;
To maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets
of his client, and to accept no compensation in

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6.

7.

8.
9.

connection with his client's business except

from him or with his knowledge and approval;
To abstain from all offensive personality and to
advance no fact prejudicial to the honor or
reputation of a party or witness, unless
required by the justice of the cause with which
he is charged;
Not to encourage either the commencement or
the continuance of an action or proceeding, or
delay any man's cause, from any corrupt
motive or interest;
Never to reject, for any consideration personal
to himself, the cause of the defenseless or
oppressed; and
In the defense of a person accused of crime, by
all fair and honorable means, regardless of his
personal opinion as to the guilt of the accused,
to present every defense that the law permits,
to the end that no person may be deprived of
life or liberty, but by due process of law

Lawyers Oath
I _______ do solemnly swear that I will maintain
allegiance to the Republic of the Philippines;
I will support the Constitution and obey the laws as
well as the legal orders of the duly constituted
authorities therein;
I will do no falsehood nor consent to the doing of
any in court;
I will not wittingly or willingly promote or sue any
groundless, false or unlawful suit, or give aid nor
consent to the same;
I will delay no man for money or malice, and will
conduct myself as a lawyer according to the best of my
knowledge and discretion, with all good fidelity as well
to the courts as to my clients; and I impose upon
myself these voluntary obligations without any mental
reservation or purpose of evasion. So help me God.
Rule-Making Power of the Supreme Court
The Supreme Court has the power to promulgate
rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasijudicial
bodies
shall
remain
effective
unless
disapproved by the Supreme Court. (Article VIII,
Section 5[5], Constitution)
CHAPTER II LITIGATION
Litigation, Nature and Object
There is a popular belief that the main bulk of a
lawyers work involves court appearances and
participating in litigations. This tends to create the
uncharitable impression that members of the legal
profession thrive only in litigious controversies and are

only too apt to foment lawsuits in order to satisfy that

professional need. Contrary to such, litigationwhich
has been aptly defined as a contest in a court of justice
for the purpose of enforcing or seeking a remedydoes
not foment disputes, but on the contrary resolves
them.
Trial defined
Trial is a judicial examination and determination of
issues between the parties to action, whether be they
issues of law or fact, before a court that has the proper
jurisdiction (Blacks Law Dictionary). Simply put, a trial
is the judicial process of investigating and determining
the legal controversies between or among the parties.
During the trial, the parties present their respective
evidence of their claims and defences. Such claims and
defences shall constitute bases for the judgment of the
court.
Trial vs. Litigation
Trial is not the same as litigation, but it can be
considered as an element thereof. Where litigation is
the contest in court for the purpose of enforcing a right
or seeking a remedy, trial is the process by which the
right or remedy claimed is determined. It is a judicial
examination.
Trial under the Constitution
The word trial as used in the Constitution
includes hearing, reception of evidence, and other
processes, such as decision in the first instance, appeal
and executor decision in the last instance (Velasquez v.
Director of Prisons).
Trial distinguished from judgment
Trial and judgment are two different stages of a
judicial proceeding; the former is provided for in Rule
30 (for civil cases) or Rule 119 (for criminal cases), and
the latter is covered by Rule 36 or Rule 120 of the
Rules of Court, and the period of trial terminates when
the judgment begins (Felismino v. Gloria). Stated
otherwise, the trial is terminated once the case is
submitted for decision.
The constitutional right to public and speedy trial
does not extend to the act of pronouncement of
sentences (People v. Acosta).
Trial distinguished from hearing
A hearing is a broader term. It is not confined to
the trial and presentation of the evidence, because it
actually embraces several stages in the litigation. It
includes the pre-trial and the determination of granting
or denying a motion (Trocio v. Labayo).
Trial distinguished from hearing
In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance
of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed

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notwithstanding the absence of the accused: Provided,

that he has been duly notified and his failure to appear
is unjustifiable (Article III, Section 14[2], Constitution).
The right of the accused to a speedy trial and to a
speedy disposition of the case against him was
designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the
administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal
cases. Such right to a speedy trial and a speedy
disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and
oppressive delays (Corpuz v. Sandiganbayan).
In determining whether the accused has been
deprived of his right to a speedy disposition of the case
and to a speedy trial, four factors must be considered:
1.
2.
3.
4.

length of delay;
the reason for the delay;
the defendants assertion of his right; and
prejudice to the defendant (Ibid.)

Scope of trial
1.

2.

In Civil Cases
The trial of civil cases commences from
the time that the plaintiff produces the
evidence on his part and is terminated
(Sec.5[a], Rule 30) and is terminated
when the parties have their evidence
admitted, unless the court directed the
parties to argue or submit their
respective memoranda or further
pleadings (Sec. 5[g], Rule 30).
In Criminal Cases
In criminal cases, the trial begins from
the time the prosecutor, in behalf of
the People of the Philippines, offers
evidence in support of the charges
after the accused has entered a plea of
not guilty (Sec. 11[a], Rule 119). Like in
civil cases, the trial is terminated when
the introduction of evidence shall have
been concluded, unless the court
directs the parties to argue orally or to
submit memoranda (Sec. 11[d], Rule
119).

Court
A court is an organ of government belonging to
the judicial department the function of which is the
application of the laws to controversies brought before
it as well as the public administration of justice (Blacks
Law Dictionary). It may also be defined as
a
governmental
body
officially
assembled
under
authority of law at the appropriate time and place for
the administration of justice through which the state
enforces its sovereign rights and powers.

2.
3.
4.
5.

Jurisdiction
Jurisdiction is the power and authority of court to
hear, try and decide a case. In Echegaray v. Secretary
of Justice, it was held that jurisdiction includes the
authority to execute the decisions rendered by the
court.

A court is a tribunal official assembled under

authority of law, whereas a judge is simply an
officer of such tribunal;

It is said that the most important part of

litigation, whether civil or criminal, is the
process of execution of decisions where
supervening
events
may
change
the
circumstances of the parties and compel courts
to intervene and adjust the rights of litigants to
prevent unfairness (Ibid).

Courts may dismiss an action motu proprio on the

ground of lack of jurisdiction. Under Sec. 1, Rule 9,
When it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the
subject matter, that there is another action pending
between the same parties for the same cause, or that
the action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.
Elements of jurisdiction in criminal cases:
1.
2.
3.

Jurisdiction over the subject matter or offense;

Jurisdiction over the territory where the offense
was committed; and
Jurisdiction over the person of the accused.

Elements of jurisdiction in civil cases:

1.

2.

Court distinguished from a judge

1.

A court is an organ of the government with a

personality separate and distinct from the
person or judge who sits on it;
A court is a being in imagination comparable to
a corporation, whereas a judge is a physical
person;
A judge is a public officer, while a court is an
office;
Jurisdiction does not attach to the judge but to
the court. The continuity of a court and the
efficacy of its proceedings are not affect by the
death, resignation, or cessation from the
service of the judge presiding over it. In other
words, the judge may resign, become
incapacitated, or to be disqualified to hold
office, but the court remains.

3.

Jurisdiction over the subject matter;

This means the power to hear and
determine cases of the general class to
which the proceedings in question
belong (Blacks Law Dictionary).
Jurisdiction over the person of the parties, or
over the res in case of a non-resident
defendant; and
How acquired:
a.Voluntary appearance by a
party
in
court
and
his
submission to it authority; or
b.Coercive power of legal process
executed over the person.
The point decided must be in substance and in
effect within the issues presented in the
pleadings.

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Conferring and determining jurisdiction

Jurisdiction over the subject matter of a case is
conferred by law and determined by the allegations in
the complaint which comprise a concise statement of
the ultimate facts constituting the plaintiffs cause of
action. The nature of an action, as well as which court
or body has jurisdiction over it, is determined based on
the allegations contained in the complaint of the
plaintiff, irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims
asserted therein. The averments in the complaint and
the character of the relief sought are the ones to be
consulted (City of Dumaguete v. PPA). Jurisdiction over
the subject matter is not affected by the pleas or
theories set up by the defendant in an answer or a
motion to dismiss (Del Monte Philippines Inc.
Employees Agrarian Reform Beneficiaries Cooperative
v. Sangunay).
The same principle applies to criminal cases.
Jurisdiction over the subject matter is conferred by the
Constitution or by law. It is determined by the statute
in force at the time of the commencement of the action
and not at the time of its commission even if the
penalty that may be imposed at the time of its
commission is less and does not fall under the courts
jurisdiction (Tolentino v. Social Security Commission).
The jurisdiction of courts in criminal cases is
determined by the allegations of the complaint or
information and not by the findings the court may
make after the trial (Buaya v. Polo).
Venue

CHAPTER III BRIEFING THE CASES

Facts of the case
No lawyer worth his calling should venture to go to
trial without a thorough and comprehensive knowledge
of what the case is all about, i.e., the factual issues
raised or expected to be raised by the parties and the
provisions of the law involved or apposite to the
litigation.
Important Terms
1.

Venue is the place, or the geographical area in

which a court with jurisdiction may hear and determine
a case (Blacks Law Dictionary) or the place where a
case is to be tried.
Jurisdiction distinguished from venue
1.
2.
3.

Jurisdiction is the authority or the power itself,

while venue relates to the territorial limit;
Strictly speaking, jurisdiction is substantive
while venue is a matter of procedure; and
Jurisdiction is conferred by law and cannot be
changed or waived by the parties; venue may
be conferred by the parties except in criminal
cases where venue is jurisdictional.

With respect to criminal cases, the Supreme Court

has the power to order a change of venue or place of
trial to avoid a miscarriage of justice (Article VIII,
Section 5 [4], Constitution).
Basic court system in the Philippines, A fourlevel hierarchy
1.
2.
3.
4.
5.
6.
7.

Supreme Court;
Court of Appeals;
Court of Tax Appeals;
Sandiganbayan;
Regional Trial Court;
Municipal Trial Court/ Metropolitan Trial Court/
Municipal Circuit Trial Court; and
Sharia Court
Parties must both be Muslims.
Sharia lawyers may appear before
Sharia court but cannot appear before

regular courts, while members of the

Philippine bar may appear before
Sharia courts.
A person who has passed the Shari'a
Bar Examination is only a special
member of the Philippine Bar and not a
full-fledged member thereof; even if he
holds a Bachelor of Laws Degree, he is
not qualified to practice to qualified to
practice law before the regular courts.
As a general rule, a Shari'a Lawyer is
not possessed of the basic requisite of
"practice of law" in order to be
appointed as a notary public under
Section 233 of the Notarial Law in
relation to Section 1, Rule 138 of the
Revised Rules of Court (Bar Matter No.
702, 1994).

2.
3.

Ultimate Facts Facts essential to a partys

cause of action or defense or such facts as are
so essential that they cannot be stricken out
without leaving the statement of the cause of
action
inadequate,
as
opposed
from
evidentiary matters which are to be presented
during the trial of the case and not in the
pleadings of the parties.
Under Sec. 1, Rule 8, Every pleading shall
contain in a methodical and logical form, a
plain, concise and direct statement of ultimate
facts on which the party pleading relies for his
claim or defense, as the case may be, omitting
the statement of mere evidentiary facts.
It is also known as the factum probandum,
or facts to be proved by the factum probans.
Material Facts Those that without which the
plaintiff would have no cause of action.
Ultimate facts are also material facts.
Essential Fact One that cannot be stricken
out without leaving the statement of a cause of
action insufficient.

Sources of facts
1. Client
Being the person directly involve, he is
more often than not the most fertile
source of information material to his
own case.
Clients have the tendency of not
disclosing
or
concealing
facts
unfavorable to him, so the lawyer must
explain to his client that he is bound by
the Rule on Privileged Communication.

Page | 6

2.

3.

4.

5.

Under Sec. 24(b), Rule 130, An

attorney cannot, without the consent of
his client, be examined as to any
communication made by the client to
him, or his advice given thereon in the
course of, or with a view to,
professional employment, nor can an
attorney's secretary, stenographer, or
clerk be examined, without the consent
of the client and his employer,
concerning any fact the knowledge of
which has been acquired in such
capacity.
Documents;
Documents, public or private, are
likewise fecund sources of data. Any
document having a material bearing on
the case must then be examined by the
lawyer.
Examples
are
police
blotter,
investigation report, sworn statements
of witnesses given to the investigation,
necropsy report and hospital records
among others.
Witnesses;
Efforts should be exerted in tracking
down persons who have knowledge
surrounding the controversy and, if
possible, enlist them into the clients
cause.
Objects;
Object evidence ranks high in hierarchy
of trustworthy evidence. Where the
physical evidence runs counter to the
testimonial evidence, the physical
evidence should prevail. The reason is
an inanimate object cannot speak
lies.
Scientific Methods
Examples are dactylography (study of
fingerprints),
ballistics,
forensic
chemistry, pathology and DNA tests
among others.

pending, as if turning aside from the main topic of the

case to collateral subjects.
Theory of the Case
Theory of the Case is a comprehensive
correlation and systematic arrangement of the facts
and principles with the view of securing a judgment of
the court in favor of the party presenting it.
CHAPTER IV THE PLEADINGS
Pleadings in Civil Cases
Read Rules 6 to 8.
Pleadings in Criminal Cases
Read Rule 112.
Pleadings or papers required to be verified
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Law applicable to the case

16.

Briefing the case starts with the investigation of

the laws relevant to the controversy. The lawyer must
arm himself with an official copy of the legislative
enactment involved and the amendments thereto.
Moreover, amendments ought to be sought for and
verified.

17.
18.

Analysis of precedents

21.

From the opinions of the highest court rendered on

earlier cases, a lawyer may take his bearings relative
to the case at hand. The reason for this is obvious:
precedents are not only indices of how a given case
was decided before; they likewise explain, often in
great detail, how that decision was reached.

19.
20.

22.
23.

Petition for relief from judgment;

Petition for review on certiorari;
Petition for review from the RTC to CA;
Appeal from quasi-judicial bodies to CA;
Petition for annulment of judgment of the RTC;
Petition for review of judgment of CoA and
Comelec;
Complaint with application for preliminary
injunction or temporary restraining order;
Complaint with application for appointment of
receiver;
Petition
for
certiorari,
prohibition,
or
mandamus;
Petition for quo warranto;
Complaint for expropriation;
Complaint for forcible entry and unlawful
detainer;
Complaint, compulsory counterclaim, crossclaim, and the answers thereto under the Rule
on Summary Procedure;
Petition for appointment of a general guardian;
Petition for leave to sell or encumber property
of an estate by a guardian;
Petition for the declaration of competency of a
ward;
Petition for habeas corpus;
Petition for writ of amparo and writ of habeas
data;
Petition for cancellation or correction of entries
in the civil registry;
Petition to take deposition in perpetuam rei
memoriam;
Petitions governed by summary judicial
proceedings under the Family Code;
Suit between members of the same family; and
Petition for declaration of nullity or annulment
of marriage or for legal separation

CHAPTER V DEPOSITION AND DISCOVERY

Ratio decidendi vs. Obiter dictum

To be discussed.

Ratio decidendi means the reason for deciding or

the reasoning or principle or ground upon which a case
is decided, while an obiter dictum is an opinion
uttered by way, not upon the point or question

CHAPTER VI THE PRE-TRIAL

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Pre-trial in civil and criminal cases

be contained in the record of pre-trial and the

pre-trial order.
However, AM No. 03-1-09-SC, dated
July 13, 2004, now requires the
proceedings during the preliminary
conference to be recorded in the
Minutes of Preliminary Conference
and signed by both parties and/or
counsel. The rule allows either the
party or his counsel to sign the
minutes.

Read Rules 18 and Rule 118.

Distinctions between pre-trial in civil cases and
pre-trial in criminal cases
1.

2.

3.

4.

The pre-trial in a civil case is set when the

plaintiff moves ex parte to set the case for pretrial, whereas pre-trial in criminal case is
ordered by the court and no motion to set the
case for pre-trial is required from either the
prosecution or the defense;
The motion to set the case for pre-trial in a civil
case is made after the last pleading has been
served and filed, whereas in a criminal case the
pre-trial is ordered by the court after
arraignment and within 30 days from the date
the court acquires jurisdiction over the person
of the accused;
The pre-trial in a civil case considers the
possibility of an amicable settlement as an
important objective, whereas the pre-trial in a
criminal case does not include considering the
possibility of amicable settlement of criminal
liability as one of its purposes;
In a civil case, the agreements and admissions
made in the pre-trial are not required to be
signed by both the parties and their counsels.
Under the Rules of Court, they are, instead, to

In a criminal case, there is a stricter

procedure
required.
All
agreements
or
admissions made or entered during the pretrial conference shall be reduced in writing and
signed by both the accused and counsel;
otherwise, they cannot be used against the
accused;
5.

6.

The sanctions for non-appearance in a pre-trial

in a civil case are imposed upon the plaintiff
and the defendant, whereas the sanctions in a
criminal case are imposed upon the counsel for
the accused or the prosecutor; and
A pre-trial brief is specifically required to be
submitted in a civil case, whereas a pre-trial
brief is not specifically required in a criminal
case.

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