OUTLINE OF A LECTURE ON

EFFECTIVE PRETRIAL AND TRIAL TECHNIQUES

By: HON. ZENAIDA N. ELEPANO

Professor, PHILJA
Court Administrator (Ret.)
Supreme Court

I. INTRODUCTION

II. Definition of Pre-trial: Rule 18 (formerly Rule 20) of our Rules of

Court

III. The Role of Counsel in Pre-Trial

IV. HOW TO PREPARE FOR PRE-TRIAL
Good pretrial practice consists of: (1) determining what you need to know, (2)
figuring out what you already know and what you don't know, (3) conducting
investigation, discovery, and legal research to obtain the necessary information
that you didn't know, and (4) preparing to present the useful information at
trial.

A.. Pretrial Planning -

Issues that you'll need to answer as you begin to plan your case:

What happened?

How did it happen?

When did it happen?

Why did it happen, i.e., now that I know what happened, what
happened before this to make this happen?

Where did it happen?

 What else would necessarily or probably happen after this happened?

Who did what? To whom or what was it done?

What do I need to prove?

How do I use the evidence to prove what I need to prove?

How do I get the evidence I want in front of the court?

How do I persuade the court that the evidence proves what I want it to
prove?

What evidence will my opponent present?

What will my opponent argue based on the evidence?

How do I counter my opponent's arguments?

How do I convince the court to rule in my favor?

II. Organizing the Case File -

The Trial Brief

The ideal trial brief should contain:

1. A statement of issues or an analysis of the pleadings and pre-
trial orders.
2. A diagram and outline of proof.
3. A list of witnesses, both favorable and unfavorable.
4. A resume of the expected testimony of each witness or the
statements of each witness whether he is to be presented for plaintiff
or defendant.
5. Notes about each witness to assist the lawyer in properly
handling the witness.
6. Notes for cross-examination.
7. Notes pertaining to trial motions or objections to testimony.
8. Brief of law and jurisprudence.
9. An exhibit file.
A. Gathering Information About the Case

"Defense counsel should conduct a prompt investigation of the circumstances of

the case and explore all avenues leading to facts relevant to the merits of the
case x x x." (Standard 4-4.1(a) - Duty to Investigate , ABAStandards for
Criminal Justice : Prosecution and Defense Function)

1. Investigation
2. The Interview of Witnesses

1. What Will Be Investigated? People, places, and events that are reflective
either of cause of action or the commission of crime or existence of defense to
crime.

What Information Will Be Gathered?, The investigation of people, places, and

events is guided by: (1) your understanding of what needs to be investigated, (2)
available resources, (3) laws and procedural rules, e.g., the substantive
law; procedural rules especially the rules of evidence, and (4) a good measure
of common sense.

What Is Your "Theory of the Case"? The

information that is gathered about the
people, places, and events will yield a tentative theory of the case ( "working
hypothesis."). Two Ways to Obtain Information - Discovery and Investigation

Methods of Gathering Information Useful to Your Defense: As the old saying

goes, "Forewarned is forearmed." If you know what is coming from the other
side, you will be better prepared to deal with it.. The two basic methods
arediscovery and investigation.

DISCOVERY

Informal and Formal methods of discovery are very much in use un

the US. Informal is done through investigation by the lawyers themselves, or
professional investigators, from different sources.

Formal Discovery is done through prescribed rules of procedure. For

instance, depositions, written interrogatories, admissions of parties, production
of documents, physical examination of a person. In the United States, the
accused can invoke the BRADY RULE which provides some threshold rights for
defense the discovery of information in possession of the prosecution and/or
its agents when such information is favorable to the accused. This is derived
from Brady v.Maryland, 373 U.S. 87 (1963) holding that, irrespective of the good
or bad faith of the prosecution, it violates constitutional due process for the
prosecution to suppress evidence favorable to the accused and material to guilt
or punishment when there has been a defense request for such information.
Subsequent cases such as:Giglio v. United States, 405 U.S. 150 (1972) making
clear that the Brady Rule applies to information that relates to credibility of a
witness as well as substantive evidence; United States v. Agurs, 427 U.S. 97
(1976) which indicates that the prosecution's duty to disclose under Brady does
not require a request by the defense:

Conducting Your Own Investigation:.

Gathering Information About the Complainant: What can you learn about
your client? the complainant / complaining witness / alleged victim? Aside
from basic personal facts such as sex, race, age, marital status, personal
appearance, education, socioeconomic level, residence, vehicle, prior criminal
record, etc, develop a reasonably accurate profile of a persons childhood
history, lifestyle, intelligence, and personality.

2. Interviewing Witnesses as Part of Case Investigation:

Attitudewise, Witnesses come in three kinds: friendly, neutral, and hostile.

(Adverse witnesses, either the opposing party or witnesses identifying
themselves with the opposing party, are almost always hostile.)

In terms of the nature of testimony of the witness, they are classified into: afact
witness, a character witness and the expert witness.

C. Visiting the Relevant Scene(s) and Gathering Useful Information

D. Using the Internet to Locate and Gather Information: You can gather
relevant information from sources on the Internet.
E. Knowing the Opposition, the Judge, the Courtroom Layout, and the Local
Rules:
F. Analyzing and Interpreting Information - Generating a Supportable Story of the Case

How do you analyze and evaluate the information that you have gathered?
a. identify information that is inconsistent with other information.
b. determine the facts that are truly in dispute.
c. recognize factual information that that is beyond dispute and learn to
visualizing the differing conclusions that can be drawn from facts that are
beyond dispute.

G. Developing Your Case Theory

H. Finding a Unifying Theme That Summarizes Your Theory

Your case theme is the catchy headline, phrase, or short sentence that
connects your various proofs to each other and to the court. You can look for
themes in a lot of places, e.g., advertising slogans, sermons, etc

I. Legal Research -

J. Litigation Strategies & Tactics

Scouting Out the Trial Judge:

Scouting Out the Opponent:
Scouting Out the Opposing Experts:

K. Preparing Exhibits, Visuals and a Trial Kit for Courtroom Presentation

Planning the Visual Aspect of Your Case Story : Some things are beyond the
realm of words. Some things can only be understood by being seen. Like it or
not, defenders and prosecutors alike must present something more than a case
of words. Visuals are a necessity. This is good because visuals can make a good
case theory more understandable and palatable. You'll need to plan and
prepare your visuals well before trial.

Learning How to Use Technology to Assist Your Presentation :

Preparing a Trial Kit for Courtroom Support:
You will probably always need the following:
legal pads
laser pointer (preferably green rather than red) & batteries
portable tape recorder & extra batteries extension cord
trial workbook with documents that you need for every case

V. The Pre-Trial Proper

A. When is the Case Ready for Pre-Trial?
B. The Pre-Trial Brief- . Contents
C. Appearances at Pre-Trial
D. Referral of case for Mediation or to Judicial Dispute Resolutions
(JDR)
When Settlement Fails -

3. Stipulations or Admissions
3. The Pre-Trial Order Formulating Issues Controls Subsequent
Course Unless Modified - :

CASE UPDATES:

1. G.R. No. 135384, April 04, 2001 -MARIANO DE GUIA AND APOLONIA DE GUIA,
PETITIONERS, VS. CIRIACO, LEON, VICTORINA, TOMASA AND PABLO, ALL SURNAMED DE
GUIA, RESPONDENTS.
Under the pre-1997 Rules of Civil Procedure, a notice of pretrial must be served separately on
the counsel and the client. If served only on the counsel, the notice must expressly direct the
counsel to inform the client of the date, the time and the place of thepretrial conference. The
absence of such notice renders the proceedings void, and the judgment rendered therein
cannot acquire finality and may be attacked directly or collaterally.

2. G.R. Nos. 143689-91, November 12, 2002 - SIXTO M. BAYAS AND ERNESTO T.
MATUDAY, PETITIONERS, VS. THE SANDIGANBAYAN (FIRST DIVISION), THE PEOPLE OF
THEPHILIPPINES AND THE OFFICE OF THE SPECIAL PROSECUTOR, RESPONDENTS.
May pretrial stipulations duly signed by the accused and their counsel be unilaterally
withdrawn before the commencement of the trial? To this main issue, the answer is No.
Stipulations freely and voluntarily made are valid and binding and will not be set aside unless
for good cause. The Rules of Court mandate parties in a criminal case to stipulate facts. Once
they have validly and voluntarily signed the stipulations, the accused and their counsel may
not set these aside on the mere pretext that they may be placed at a disadvantage during the
trial.

3. [ G.R. No. 155010, August 16, 2004 ]- JONATHAN LANDOIL INTERNATIONAL CO., INC.,
petitioner, vs. Spouses SUHARTO MANGUDADATU and MIRIAM SANGKI MANGUDADATU,
respondents.
Lawyers must be careful in handling cases, because their negligence in the performance of
their duties binds their clients. The issues in the instant case stem from the failure of the
counsels and their client to attend the pretrial. Their non-appearance was compounded by
their subsequent inaction, which resulted in the eventual finality and execution of the default
judgment.