Monday, March 21, 2011

The Pre-Trial Brief


“Brief” means “concise or short in length.” In law it is “a concise presentation of the facts of client’s case” (Webster’s Encyclopedic Dictionary 1992). The papers were carried in a “briefcase.”

Black’s Law Dictionary 1968 says that in American practice it was a document prepared by counsel as a basis for an argument on appeal, and usually filed for the information of the court, or within a rule of court requiring counsel to furnish briefs, implies some kind of statement of the case for the information of the court. While in English practice, it is the document prepared by an attorney (solicitor?), and given to the barrister before trial, for his instruction and guidance.

Citing Black, Mellinkoff says that the English brief is a written case summary for the guidance of a barrister; the American brief for the guidance of the court (The Language of the Law 1963).

An older dictionary descriptively mentions the contents of a trial brief which is “to inform the person who tries the case” and a brief on error or appeal (Bouvier’s Law Dictionary 1914). There is a joke among English-trained lawyers, which still crops up today, about a lady barrister who embarrassingly could not proceed with her case because she had lost her brief.

To create order out of chaos is human. The trial brief was to ensure that the barrister did not go astray, the appellate brief as its name implies was to compel meandering, verbose, and elusive counsel to go to the point.

Later the trial brief was an instrument of trial strategy or “battle plan” prepared by the trial lawyer, and was a closely-guarded secret.

U.S. and Philippine Practice

At the turn of the century American lawyers arrived and were ubiquitous on the legal scene, even up to the Supreme Court. They introduced their procedural practices. The Code of Civil Procedure which took effect on October 1, 1901 (Act No. 190 of the Philippine Commission) did not say anything about trial briefs, which were privately prepared by lawyers. Much less about pre-trial briefs, although a step in that direction is perhaps Sec. 134 on “Agreed Statement of Facts.” The 1940 Rules of Court already had Rule 25 on “Pre-Trial” and its single section states that it is discretionary on the court, enumerates its objectives which is still repeated today, and lays down the contents and effect of a pre-trial order. The 1964 Rules had Rule 20 which makes pre-trial mandatory and is more elaborate with five sections. Nothing is said about pre-trial briefs.

But of course there were occasions when a judge would want more clarification of disputed questions of evidence or law, and would require a trial lawyer to submit a “trial memorandum” on such matters. Sometimes this was volunteered by the lawyer, if he thought that it would help his persuasion on the judge. This took place in the course of a trial, but eventually it came to pass that lawyers volunteered or were ordered to file memoranda at the close of the evidence and before the case was deemed submitted for decision.

Trial lawyers consider the trial brief indispensable for trial preparation. The more important and complicated a case, the more preparation and thoroughness is demanded of counsel. Not to mention that some people are more painstaking and meticulous than others. The work product could become fat and evolve into a “trial notebook” or even expand into a voluminous “trial book.”

The Rule-Required Pre-Trial Brief

The pre-trial brief was an offshoot of the effort to speed up the delivery of justice. Despite the discovery procedure and pre-trial device in the 1964 Rules, cases were delayed. At the end of martial law, Supreme Court Circular No. 13 on Guidelines in the Administration of Justice dated July 1, 1987 underlined the problem of delay and trial courts were instructed to maximize the use of pre-trial and discovery procedures, what was recommended were “exhaustive pre-trials … to reduce areas of conflict and simplify issues, etc. (citing Rule 20, Sec. 1) and with respect to discovery, lawyers should be encouraged to avail of Rule 24 to Rule 29, “a neglected area in our adversarial process. Its use would greatly expedite the trial of cases.” Administrative Circular No. 1 dated January 28, 1988 instructed the judge to encourage the “effective” use of discovery procedures.

It was pointed out by an American lawyer that the reason for delay was the protracted and piece-meal hearings in our courts, unlike the jury trials in his country where trials had to be continuous until termination (otherwise the sequestered jurors would become cantankerous because they could not go home).

Thus was hatched the idea of “mandatory continuous trial.” Circular No. 4 dated September 22, 1988 has a forceful beginning -


The flow of cases in the trial courts from the time of filing until their final disposition has been the subject of constant public criticism. The trial period is exceedingly long. It usually takes more than two to three years to finish. The slow grind of the trial court machinery has made the legal maxim “justice delayed is justice denied” aptly descriptive of the dismal situation obtaining in that level of jurisdiction. Indeed the ultimate victims are always the ordinary litigants. The real culprit is the common practice of piecemeal trial of cases that sets cases for trial one day at a time and thereafter continued or postponed to another date until all the parties have finished their presentation of evidence.”

and started a pilot project to test the efficacy of continuous trial. Circular No. 1-89 effective February 1, 1989 designated certain courts to conduct mandatory continuous trial with the hopeful objective that the whole proceedings be terminated and ready for judgment within ninety days from the date of initial hearing. The parties were required to file pre-trial briefs. The prescribed contents were to suffer later amendments. Strangely, no pre-trial briefs were prescribed for criminal cases.

The lawyer’s trial brief was brought out into the open by judicial fiat. But while the two ran parallel, they had not exactly identical objectives. The trial brief was a “battle plan” (shades of Carl von Clauswitz and Sun Tzu!) while the pre-trial brief compelled the advocate to be candid and straightforward so that the court would not be misled, and could render justice according to law.

While we refer to developments in 1989, the following will have a familiar ring, in retrospect:

“The pre-trial calendar consists of all cases other than personal injury and death actions. The parties receive written notice to attend a calendar call. At the call a time is fixed for the conference, which often is scheduled for the same day. The attorneys are required to submit typewritten memoranda covering such of the following items as are appropriate:

‘1. A brief statement of what the plaintiff expects to prove in support of his claim.
2. A brief statement of what the defendant expects to prove as a defense thereto;
3. Similar statements as to any counterclaim or cross-claim of a defendant.
4. Any amendments required of the pleadings.
5. Any tender of issue in the pleadings that is to be abandoned.
6. Any stipulation of facts, as to liability or damages, that the attorney is willing to make, or on which he requests an admission.
7. The details of the damages claimed, or of any other relief sought, as of the date of the pre-trial conference.
8. The documents and records to be offered in evidence at the trial which will be conceded to be genuine or as to which a concession is requested.
9. The names and specialties of experts to be called as witnesses.
10. Any other pre-trial relief which the attorney will request.’

The attorneys should have discussed these matters in advance of the conference. Generally, it is a good idea to submit to your adversary in advance of the hearing the documents on the identification of which you seek agreement. Some judges even require the exchange of pre-trial memoranda two days before the conference, although the usual practice is to exchange them at the conference. Other judges require the submission of a pre-trial memorandum to the court before the conference.” (Wessel, Federal Pre-Trial and Jury Trial Procedure, Practising Law Institute, published in 1955 with the caveat that the rules have been changed radically since then, page 55, citing Calendar Rule 15(b) of the U.S. Southern District Court of New York).

With respect to the pre-trial brief responsive to the Circular and the “pre-trial memorandum,” Bellosillo cites 1962, 1955, and 1958 U.S. cases (Effective Pre-Trial Technique, 1990, pages 139-141).

The 1997 Rules deal with pre-trial in Rule 18. With a change from discretionary to mandatory, Sec. 2 on nature and purpose copied Rule 25 of the 1964 Rules. There was updating. It runs as follows:

“Nature and purpose.- The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a, R25)”

The contents of the pre-trial brief were prescribed in Sec. 6, Rule 18.

The overlapping and some discordance of topics is obvious, and the two sections could very well be merged into a harmonious one.

The matter was compounded by Circular No. 3-99 dated January 15, 1999 (was it intended to, or does it amend the Rules of Court?). Par. 2 (a) copied Sec. 6, Rule 18, but added that the parties shall state the number of hours they needed to present their evidence, to submit copies of documents to be presented, to state applicable laws and jurisprudence, and available trial dates of counsel. The parties were required to finish their evidence within three months from date of initial hearing.

Two years later there was the Interim Rules of Procedure for Intra-Corporate Controversies, effective April 1, 2001. Rule 4, Sec. 1 enumerated the contents of a pre-trial brief. Among these are a brief statement of the nature of the case, summarizing the theory of a party and separate statement of factual and legal issues. Sec. 2 stated the nature and purpose of the pre-trial conference, and required the parties to consider among other things facts of judicial notice or the subject of express or implied admissions; objections to the admissibility of testimonial, documentary and other evidence; and complete schedule of trial dates. Sec. 4 provided for the format of simultaneous trial memoranda after the ruling on admissibility of evidence. Rule 11, Sec. 2 imposed novel disciplinary sanctions on the judge for failure to observe the special summary procedures in the rules and for failure to issue a pre-trial order in the prescribed form.

Another two years later there was the rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages dated March 15, 2003. Sec. 12 provided for the contents of the pre-trial brief. There was also the Rule on Legal Separation of the same date. Sec. 9 provided for the same contents for the pre-trial brief. Then there was the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors dated May 15, 2003. Sec. 10 provided for the same contents.

Still another two years later there came the Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures effective August 16, 2004. It is so all-encompassing in scope and mandatory in tone that one can say that it has practically supplanted or supplemented Rule 18 on pre-trial and the deposition-discovery rules in Rules 23 to 29 of the 1997 Rules of Court. For the pre-trial in civil cases, Par. I, A, 2 provides for the contents of a pre-trial brief. It follows to some extent Circular No. 3-99 dated January 15, 1999 with the following changes:

It no longer requires the submission of copies of documents, but stresses that no documents shall be admitted during the trial in support of a party’s evidence-in-chief other than those identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown.

It no longer requires a statement of applicable laws and jurisprudence.

It no longer requires a statement of the available trial dates of counsel and the termination of presentation within three months, although there is a separate paragraph on this subject.

The rule on contents must be strictly complied with, the parties are bound by the representations and statements in their respective pre-trial briefs.

Although the circular has Par. B on criminal cases and mentions many topics that could be preliminarily dealt with, there is no form for a pre-trial brief in criminal cases.

Because it is the latest formulation on the matter, we reproduce it hereunder:

“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 or their intention to avail themselves of discovery procedures or referral to commissioners; and

f. The number and names of the 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.

A copy of the Notice of Pre-Trial Conference is hereto attached as Annex “B.”

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.”

The circular starts with the not unfamiliar refrain that it is intended to “abbreviate court proceedings, ensure prompt disposition of cases and decongest court dockets,” and its sincere thrust and unmistakable urgency is evidenced by the meticulous step-by-step guidance it gives to trial judges and clerks of court, which appears rather complicated and excessive.


The following are the suggested contents of a pre-trial brief. It is an action plan of the trial judge, to get at the facts, so that it can render justice according to the truth and the law.

1. Nature of the case. Brief statement of the cause of action, denial, affirmative defense, counterclaim.

2. Issues of law. Brief citation of latest laws and jurisprudence.

3. Willingness to compromise and settle, stating the terms and conditions acceptable to the party.

4. Willingness to submit to alternative modes of dispute resolution such as arbitration or mediation.

5. Admissions of facts and genuineness and due execution of documents, whether express or implied. Possibility of filing a partial or complete stipulate of facts.

6. Identification of issues of fact remaining exclusively for trial.

7. Reference of factual issues to a commissioner.

8. Results of discovery motions and their intended use.

9. Names of witnesses and the substance of their intended testimony.

10. List of documents or object evidence and their intended purpose. These shall not be admissible in evidence unless earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown.

(Important note on “issues”: An issue is a material point, deduced from the pleadings, which is affirmed on one side and denied on the other. Rule 18, Sec. 7 on the pre-trial order states that it shall “explicitly define and limit the issues to be tried” and Rule 30, Sec. 5 limits the trial “to the issues stated in the pre-trial order.” “Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to dispose of a case. The parties must disclose during pre-trial all issues they intended to raise during the trial, except those involving privileged or impeaching matters. Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pre-trial order may be considered only if they are impliedly included in the issues raised or inferable from the issues raised by necessary implication. The basis of the rule is simple. Petitioners are bound by the delimitation of the issues during the pre-trial because they themselves agreed to the same.” (Villanueva v. Court of Appeals, 427 SCRA 439, 446 [2004]).
By Atty Cesar T. Tirol

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