Notes From the Future

8/3/2019 Notes From the Future

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Nov 9

Memorize the article #s; X txtbk reqd X ans substantial justice, X say I think Time pds are impt! Memorize! Be confident during recit = prepare! X looking at notes Cheating: giving/rcvng help during recit 8 sentences in the exam

o Ans SIRS was

Course description:o Civil procedure: the J of phil Cts & the rules of judicial procedure in civil axns, bth ordinary & spcl, including provisional

remedies & prescription of axns based on the ROC & other laws Part of procedural law = Remedial law

o Bec talks abt a remedy (process/the procedure = how to)

Vs relief (spcfc thing asked for from the Ct, restitution/reparation for a leg inj)o Lawyers Law: bec a lawyer is charged w knowledge of how to go abt the Cts/quasi-judicial agencies

lawyers push the button/lever of the State machinery Very technical technicality matrs in this subj

o Alonso v Villiamor: its X substantial justice in procedure wc matrs

Framework to all the technicalitieso X rem the principles only

o Rem EVERY DETAIL abt procedure

will always be in a conflict sito

Its always 1 wc will be difiicult to resolve You were born in this world alone, youll probably die along, so best to live it alone = stand on your own Learning depends on you

Nov14 Why shld we be technical?

o Technicalities are impt/inherent in the law bec a lawyer may make so many permutations of a word/have so manyinterpretations of the law

o Thus, law shld be made clearer wc is why the law is technical

o Ex) 15dys from today: exclude the 1st & count the law = in CC

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Appeal shld be made in 15dys wc is the 29tho To prevent ambiguities, frivolity may stop a discussion/resolution on the substantive issue

o By being technical, it allows the judge to focus on the issue

o If 1 lawyer dnst know the technicalities, this may be used by the other to his adv

In order to bring a cause, you have to know how to bring it or the substantive ideas will be muddled in the technicalitieso X mtr how trivial it may seem, it may win you case

X here to study justice & fairness, here to study law J. Malcolm: ponente in Ruby v Provincial Board

o Negative pregnant: denial but makes assertions

o 1st dean of UP wc is why the college is named after him

Provs may be frivolous or common sense, but if you dont know it, the other counsel will do it for you & youll lose your case

Remedial Law: Lawyers Lawo Bec a lawyer is charged w the knowledge of how to go abt the Cts

o Bec every leg opinion you give, you guarantee

X only bec of substantive law but bec you know the technicalities & no1 can dance arnd u on that

X worth anything if u dnt know procedure = this is how you move the state machinery in favor of your client

Its how you work the sys that matrso Bec a career as a lawyer depends on if you can work the procedure

Career will be based on the ruleso Client wont know the ROC

Lawyer enters his appearance for his client

*its how u see urself that matrs be honest & authentic only to yourself* grades will mtr for the 1st 15secs, but what really mtrs is if youre effective = perf matrs!

Hohfeld: Fundamental Legal Concepts Fundamental leg concepts: what he discusseso He wanted a briefing of what these were

Made a distinction btwn leg & non-leg conceptso there are certain words wc may have non-leg meanings but have diff meanings in law

why the diff in meanings?o Ex) lay person: contract = pc of paper

To him, X contract btwn a passenger & jeep driver bec in his mind, its X a contract if its X in writingo Ex) lawyer: contract = mtg of minds, involves a definite offer & an unqualified acceptance

o * ignorance of the law dnst excuse 1 from compliance therewith

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X raise this as a defense bec every1 is presumed to know the lawo in order to understand what the law is, need to know leg concepts

ex) cause of axn: reason why u filed a case (ordinary person)o reason: our law has its origins from other laws, thus the concepts embodied therein are diff from an ordinary law persons

understanding

law was imposed on us, thus the creation of the profession

law has been transplanted or takes in from other theories/laws, thus concepts tend to have diff meanings a word may have many meanings depending on the context

o applies to commonsensical meanings = but since itll aply based on diff perceptions, its X really common

theres always a distinction btwn a leg term & non-leg termo ex) contract: agreement w a definite offer & unqualified acceptance = this is when theres a mtg of minds

o theres a leg & non-leg meaning to particular terms = implies an attitude

Operative/Constitutive Facts: can change leg relationsEvidential facts: affords a logical basis for inferring some other facts

In a complaint you allege ultimate facts, X leg concepts yet, just operative facts = in pleadings

Evidentiary facts = dealt w in trials Theres a diff btwn the leg concept & the OF wc bring this into being

Ex)Contract Legal concepts

Mtg of the mindsDefinite offer Unqualified

acceptanceOperative facts

Man waiving his

hands

Jeep slows down Things wc can be

observed

Contract & mtg of minds is alrdy a leg concept = its a creation of the mind Facts: things wc can be seen/observed = particulars At 1 stge, leg concepts actually jump to the factual OF: things wc summarize those things wc bring abt the leg concepts/bring the leg conceptions into being if they are present Ex) Theft

o Boy hsnt eaten for 10 dys, really hungry sale of bread in a bakery; he takes a piece of breach, eats it & leaves

o Only thng impt here is the facts wc constitute theft

X the owner Drilon3


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Wo consent Personal prop owned by another Intent to gain

Taking/asportation Actus non facti. = the act isnt a criminal act unless there is criminal intent Ultimate facts

Law defines the essential elems of the offense = these are the operative factso Thus, the lawyer disregards the irrelevant acts

Ex) if a person dsn pay after eating in a restaurant whats the crime?o X theft bec the restaurant gave its consent

o Estafa! Bec didnt pay for a service rendered

There are leg concepts & OF wc bring the concepts into beingo When all the facts are present, theft is present, this triggers the operation of a penalty

o Factual normative normative penalty factual penaltyFacts find the law if law is applicable imprison* this is a cycle

The leg concept is the button wc wi change other rules Lawyers expertise is being able to identify the facts

o Can you translate what you find in the facts & bring it into the OF?

Theres a hierarchy btwn the OF & the EFo OF: primary importance wc bring the leg concept into being

Have alrdy happened in the pasto EF: necessary in order to lead to the conclusion that the OF happened

Those wc are present today Ex) Student of the college of law (leg concept)

o Prove this by showing a form5, signature on it shows acceptance into the College of law for the semestero Evidence to be presented is also a fact registration, etc cant be shown today unless you have a time machine, instead

you have a form5o BUT the form5 isnt registration but is a residue of registration

o It allows s to jump to the conclusion

If you cant prove a fact, a leg concept wont exists, if it dsnt exist, there can be no penalty

Truth isnt what really happened out there, but WHAT YOU CAN PROVE X EF X OF X leg concept X punishment Ex) passenger offered to board 1st allegation

o Evidence: witnesses who saw it; if only 1 person, his testimony

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o This testimony will be diff from the passenger who offered to board = thus, differentiate them

o Testimony = EF; passenger offering to board = OF

Theres a diff btwn OF & EF usually X sufficient just to identify the evidence need to secure it & preserve it

o If dnt secure it or preserve it wont be able to prove the OF

o Thus, identify, secure & preserve

o Preserve the evidence bec theres a diff btwn leg concepts, the OF wc bring the leg concepts into being & the OF & the EF

= need this in order to see things properly In order to litigate, need to know:

o 1) leg concept

** Hello garci tapes: Pres is guilty of s3, RA __ (anti graft & corrupt practices Act) = persuading another govt ofcr to do smthn contraryto law

Nov20Summary of last class:

OF: facts constitutive of a legal concepto Facts necessary to bring a leg concept into being

o Know + operative facts proven to exist

o Provided for in law: the text themselveso Interpretation: rdg means following as interpreted by jurisprudence

o No OF = no leg concept = no relief (wont trigger anything from the CT)

o OF are proven to exist by evidence

4 kinds of Evidence:o Obj evidence: I present this jagged knife, from wc u can see a pattern similar to the cut in the victims bdyo Docum evidence: I present this pic, in it u can see person A having sex w person B

Lawyers shld know how to memorlize evidence

Lawyers need to know how pictures are developed, how to record MP Form 5, how to use digital recording & whatlevel of deterioration is expected as to quality & veracity

o Testamentary Evidence: I present the testimony of person C on what he saw during the commission of the crime

Lawyers must be men of the world Lawyers need to learn how ppl from diff backgrounds react to sits, so we can anticipate how they shld act Lawyers must learn to mobilize & manipulate ppl

o He didnt say

OF: Hohfeldian term

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Our jurisdiction: Ultimate facts (Phil term)o Leg concept

o After establishing the facts, can conclude that the leg concept exists

o Divide the abstract from the phys/ divide the descriptive & prescriptive world

o Its ultimate bec after u estab it, u can conclude that a leg concept exists

Lecture: Leg concepts are provided in law

o In the text itself (statute)o In the text as interpreted in jurisprudence

Leg concepts laws & rules prescriptiveo Truth conditions: X prove sensorially

o Valid in relation to a more superior ruel (Consti)

o Law resides in presumptive statements

close the door

Must, shld = words used

It dsnt matr if its actually closed the rules exist Won theyre follower Rules arent invalid just bec they arent followed

o Law are Prescriptive: it cant be proved sensorially, can only be proved by referring to a superior rule

(a) The sun should be shining(b) One can only justify if it is valid as to a higher rule.(c) It doesnt matter if it is not shining

Descriptive: describes the thing as it happenso State the fact now/pasto Exists sensorially

o Facts are part of the descriptive world

o Test: to det whether the descriptive thing is true, prove it exists sensorially

o The sun is shining

o One is stating a fact, either a past one or a present one.

o One can prove it exist sensorially.

Descartes: There is no difference between prescriptive and descriptive. (if we follow Descartes, which we dont) Make use of the facts (substantive) deploy it in the right way (procedural)

Jural opposites: uselessJural Correlatives: what we focus

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Bth are juridical necessities

Right: can exact complianceo Active party/subj can exact beh from the duty holder

Duty: passive subj There must be a clear right-duty correlative to give rise to a clear prestation Horatory: not subj of a clear violation in procedural law

o Exhorts/puts in direction

o Sets a general purpose

o Ex of a right wo a corresponding duty

o Its not a source of a R-D correlation, u cant know the duty imposed bec of its generality

A2, s16: the state shall protect & advance the right of the ppl to a balanced & healthful eco in accord w the rhythm & harmony ofnature

o D: state shld ensure a healthful eco

o Right: X a clear right

o Constitutional but horatory: cant be the subj of a violation

Bec no elems

Only sets a direction Prestation: juridical necessity to do, not to & to give (thing involved)

o Understand rights in terms of prestations

o No clear prestation of duty-holder = horatory

o Shld be clear & specific

It shld be very clear in order to invoke the proper prov & so that the party can reply properlyo Right holder: active subj who has to power & option to exact compliance or not

Shld follow what the leg prov says

Comes into existence only thry leg provs

Its a power, can opt not to exer it But when availed of, the duty-holder shld follow bec there might be leg sanctions

o Contract: 1 way to create rights & duties

Method by wc persons create rights & duties, vis a vis ea other Ex) contract of lease

o Use, how much rent, duration, maintain in tenable shape, who pays RVAT

Parties can create the rules themselveso Ex) contract of lease

Ownership: NOT a prestation but a bundle of rightso Jus posidendi, jus utendi, jus frutendi, jus despodendi, jus vindicandi, jus abutendi

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o May give rise to prestations

o U dnt violate a law but a prestation in law u dnt violate the right to ownership but a spcfc right defined by the code itself

Contract ISNT the prestation Therell be a cause of axn not when the contract is breach but if 1 of the prestations is breached Breach of a R-D correlative gives rise to a cause of axn

o R holder = plaintiff

o D holder = def

o Theres a R, a D, & a corresponding breach

Summary of Jural correlatives:o Right Duty

o Privilege No right: tolerate on prop (ex smokestack)

o Power Liability: spcl proceedings

o Immunity Disability: affirmative defenses (Constitutional, civ pro)

Primary rule: basis of other ruleso Cond precedent b4 any rule comes in

o When this is violated, a 2ndary right arises to file a case, spcfc perf

R-D correlativeo Once its violated, it triggers another rule

o Ex) theft penalty

Primary secondary (adjectival)R (owner) D (thief) breach R(state) D (thief)

o Protasis: cond precedent

o 2ndary rules (adjectival) Hohfeld

o Primary rule was violated wc triggers a 2ndary rule

Remedy: procedure on how to prove a crime & entitlement

o Brings 2ndary rights into existenceo Procedure to bring abt the 2ndary right

Relief: what the Ct orders the party who lost, to do or not to do

Breach: privilege of starting procedure No-right person: responds in an ans, MTC/summary judgment Right to invoke procedure if theres a cause of axn (violation of prestation) of offense

o Cause of axn ISNT why u filed the caseo Its the existence of R-D & theres a breach of such

o Cause of axn exists when:

Existence of a leg right w a corresponding leg dutyDrilon8


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Breach of that right Procedural Law: set of 2ndary rights

o Adjectival law or Remdedial law: tells u what to do in case a R-D correlative is breached

Prayer: ask/plead for it Anatomize the prov/the relation: right-duty

o Whats the prestation? R? D? R-D correlative? Is there evidence to prove this?

Nov27Summary & Lecture:

Lawyers write laws:o When in Congresso Ct interprets & applies law wc become the part of the law

o Creating corp laws/contractso Priv law: set rules binding 2/several parties = Creation of contract

o When submit pleadings, memorandums

god exists in law? No, law is agnostic w regard to this; its neutral

o God seen only in the preamble of the consti preamble s considered valid bec part of the constio How do we know the consti is valid?

Its made in accordance w the previous consti

What abt Javellana, freedom of consti? Theres nthng higher than the consti, so shld be in accordance w the previous 1

Descriptive statement: is a declaration of the state of things in the present, past or future Rules arent invalidated or truth conds under wc they exist dnt depend on sensorial experience rule is still valid or may be invalid but it has nthng to do w sensorial experience can be proven as existing, from sensorial experience

o proven from a perceived fact if this fact is present, it mustve happened

ex) inferences from the observation that the ground is weto Mustve rained, watered the ground, spilled water, leaking underground pipe, threw water out the window, etc

o Such statements are statements of fact

Statements wc can be inferred from such statement of facts = theres always an inferenceo This brings us to the fallacy of affirming the consequent/antecedent

An antecedent fact is concluded based on a subsequent facts even though the antecedent fact isnt related to thesubsequent fact to give rise to the conclusion

Ex) rainWet Leaking pipe

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OF: no longer present, in the past EF: facts being established has alrdy happened what ur trying to prove has alrdy occurred Lawyers are engaged in the fallacy of affirming the antecedents Up to the cross examiner to try to prove or suggest that another fact that may have caused the result

Normative Statement: a declaration the aspirations contained in a rule Whats the struc of a rule?

o Cant be a simple verbo It shld be informative

o It MUST contain the words: must, shall, may, can

These are the words found in a statement

Truth or validity depends on anthr rule (Consti, statute, etc) Valid only in relation to other normative statements We assume we know something, thus it isnt pleaded Statement is worded = shall, mustwc reqs beh Its a statement of reqd beh in verb form

But the beh dnst kick in, unless the conds are present Structure: theres a conds (protasis) & a beh (apodosis)

o Conds = the prestation

Rules apply only if certain conds are present, wc leads to a mode of beho Ex) after prof comes in, always keep the door closed

When analyzing the rules of the ROC:o Whats the beh reqd

o This beh will only come in, if these conds are present

Ex) def must file an answer

Ex) after the service of summons

What ds this mean? Look at anthr rule for its definitiono * look at the mode of beh & radiate outwards

* chronological order in the law is only for convenience, look at the heart of the statute & everything else follows from thereo Ex) if X (conds), then Y (beh)

Ex) if theres theft, then theres a penaltyo Cond here is to prove that the rule was broken

o Thus 2ndary rule comes in

Entire apodosis can be a rule + a 2ndary rule

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Primary & Secondary Rule

2ndary rule contains the relief being soughto It can be conditioned on, if _____ is violated, then ______

o Ex) if X isnt careful, then he will be liable for damages

Body of the entire complain is abt breaking the primar rule Relief: show the substantive law wc your relief is based on

o Structured to show that OFs are present, wc is why the rule was violated & the prayer shows hes granted a relief basedon substantive law

KNOW how to file a complainto Know the idea wc shld be placed there

o Even if you know the form but not the relation of the rules, wont be able to create a complaint

o Relation of primary & 2ndary rules

Rules of Procedure tell u what to do bec you know that a primary rule was violated & a 2ndary rule was violatedo Other rule is procedural law: provided that u have a cause of axn, u can file a case

Cause of axn: primary rule & breacho Reqs: prestation wc has a right-holder & duty-holder (shld be held by an indiv) = theres a R-D correlative

Theres a normative statement when 1 shld comply & another who can exact compliance Ex) contract offer acceptance

Shld comply w GF Failure to meet an oblig, the party can be liable for damages Contracts can have several prestations THUS, the norm can be created by the parties = thru the creation of the prestation

o 1 beh = 1 prestation 1 beh, if breached = 1 cause of axn

o 2 behs, if breached possible to have 3 diff causes of axns (rule2: can file 3 diff cases)

o Bth parties may have obligs = reciprocal at times (thus, can be an active & passive party on bth ends)

Ownership: X make any sense, wc is why you need to specify statuteso Bec theres no natl concept of ownership, unless its reduced into a R-D, it cant be enforced as litigious rights

Only things wc can be used in procedures are those wc can LOCATE SPECIFIC types of beho If dont spcfy, cant be a source of cause of axno Ex) Oposa: no cause of axn bec what are u requiring from the state?

Law dsnt say no logging concessions so why stretch it to that

Can be a source of a valid or extendable rights

Hohfeld: there are several rights jural correlationsRight Duty

Hs to do something positive; Has to comply w the duty; canDrilon11


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has the oblig to do apositive thing; can demandfrom the passive subj tocomply w the duty

be compelled to comply

Privilege No rightCan do things Person shld simply accept it

ds the positive act Shld be/must be tolerated bythe no right person

Ex) Possessor of prop can dowhatever he wants

Has to suffer it & deal w it

Power Liability

Party can create a diff relationship can create anew relationship

Person just has to accept it

Ex) I have the power to make

an agent

Person who has to suffer it

Diff from no-right but almst aspecie of it

Immunity Diability

Ex) right against self-incrimination

Passive person cant doanything to you

Can be broad or spcfc

Application in crim proc: depends on the stage ur ino Ex) arrest: immunity from answering spcfc Qs & R-D correlation

o Prelim I: immunity against inquiry

Certain relationships an produce all these correlatives & need to know & indetify this bec when file a case, need to state thecause of axn (exp in the bill of particulars)

The framework used is Hohfeldiano Need to spcfy the oblig wc was breached

o Hortatory: san d\iego v ca

He flunked the med test several time, so he sued to be accepted = Ct sd cant place a square peg in a circle hole Way of looking/rdg the txt of the statute in order to discern the mode of beh

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Every norm congeals a value, a political or philosophical position, even an eco consequence = norms thus carry a particular biaso Ex) drugs: b4 shown, get registration fromBFAD

Presumption arises: BFAD knows what its dng bec cant know if ads are reliable, so rely on the govt/we have to asksm1 who know more abt it

o Ex) need to pass the bar/ordinary person cant be a lawyer immediately

Bias: the profession shld be regulated/state checks ur ability or expertise When 1 litigates a case, may have biases but have to use/work w the norms

o U may want to assert ur own ideas, but u have to work the norms & put this in writing

o Words/lang will bear on the interpretation in certain ways

o Thu, have canons for leg interpretation

Lay person: words meanings may be close to infinity Lawyer: there are definite limits & margins to the meaning of words

o Margins: are also dependent, to a certain extent, on ur reputation (winning & interpreting it in the leg profession way ofinterpretation; so need to win a few cases)

Legally accepted way of rdg the ROC is what we focus on in classo Legally accepted = there are nuances in some cases

o There are certain dominant ways in rdg this rule..if u cant understand it, just keep repeating ito But itll alwys depend on what the decision maker wants

X ans the way Te wants, ans the way Sir wants

Theory of the Trial: Burns

Celebrates performance Shows that most lawyers try to present variations of fact = theyre trying to pick the general inferences wc generally happens

There are certain things wc we assume, thus we have inferenceso Inferences may or may not be common sense

o Ex) Mangyan: X the sme common sense as us cross the street in 1 line bec thats how they walk thru mountainso Our assumptions might not be common sens

The Received View: centered on the concept that evidence can be presented to come up w a story/narrative wc can beobjectively discerned

o And as such a leg norm/leg rule may be applied

Series of evidence:o Only way we can make sense of the world is to make it into a story bec theres too much info to take in = we make a

narrative of it When present a case, need to make a story: put in characs, list the evidence, make inferences Rcvd View: when 2 diff stories clash, the jury/judge will sift thru every bias & det what really happens

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o Critique of Burns: theres no 1 story to everything, therere a multitude of stories & interpretations

o So how do u choose a story? Or that its the correct theory of the case?

Cant just say 1 want this story bec itll have an impact on the mediao Wo regard for the technicalities, clients future is at a disadv

o Cant create a fictional story may be famous for 15 secs, but wont be able to further ur theory/proposition

Thus, NEED to consider the evidence Need to know/anticipate the others story

o If u dont, ull lose 50% of ur battle

o Knowing ur self & the enemy, ur sure to win all ur battles

o Thus, know the evidence of the other side

Human experience: to blve the 1st story heard person ends up sticking to thiso Point is, need to know ALL the evidence

Compulsory fishing expeditions: cant get the opposition to tell u what u have, but only after the case is filed B4 case, conduct ur own investigation, cross-examine witnesses, etc

Theory of the Caseo Depends 1st & foremost on evidence = chose it based on this

o 2 kinds of indivs (psychology): Sensing indiv: bases experiences on senses loves details & from there, makes conclusions

Intuitive indiv: 1st create diff stories & test it based on evidence availableo Depends on whether ur a sensing or intuitive indiv, but thisll 1st depend on the facts availableo If choose at 1 level, wo considering the facts, esp the OF, theory will fail

o Even if theres no evidence, dnst mean that it didnt happen or even if theres only 1pc of evidence

Ex) who killed Magellan? Lapu lapu? Pc of evidence is a thousand hearsayo We have to be able to sense evidence, otherwise its not there

o BUT in the Ct of law, we HAVE to have evidence, so theres something wrong w our sys

Also possible for evidence to be lost (ex. changing lanes) Hence, the criticism on the adjudicatory process

o Ct of law: truth isnt what happened, but what u can prove happened

Were structured/trained to do 1 thing = prove evidence, prove it applies to the norms, and use the state machineryto prove such

X evidence = u lose the case TRIAL: stage of procedure where we present evidence

o Means: the trying of factso Wc is why called the TC tries the facts, assesses the evidence & applies the law)

Method of prescribing evidence has a framework:Drilon14


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o To det if admissible tells us what evidence is accepted by the CT

o How to present it

How the judge infers from the evidence presented isnt an aspect of our course its an aspect of how inferences are presentedin the world

o The inferences arent a part of remedial law

o Theyre part of our common practice/experience

o We understand that inferences can only be learned on ur own = X from bks

The more conservative approach (at the start), the btr bec judges tend to be conservative

FLOWCHART OF THE COURSE:

Round 1/1st level:

Pleadings Pre-trial trial judgment (this is the main highway, bt there are many detours)

Round 2/2nd level:

appeal final judgment

Round 3/3rd level:

execution of judgment entry of satisfaction of judgment

*detours: compromise agreement, skip everything & go to dismissal; Motion to quash/dismiss; motion for summary judgment evenduring pre-trial

Pleadings 1st state ur position Practice in the Phils/world: depends on whether the lawyer can write Anglo-Am sys & law here: gives primacy to the written word

o Ex) can say im a student, but need to show Form5 to prove it

o Parole evidence rule: nthn outside the written agreement will be considered

U commit urself to a theory in the 1st pleading = this is what ull commit to all the way to the SC Have to know the evidence, theory of the case, gone thru jurisprudence, reduce ur claims, ultimate facts, OF = in a pc of paper

80% of the practice is writing (includes rdg part); 20% arguing (includes the representing part)

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Start w filing the pleading:

o Complaint answer (can opt not to file this yet; can file a motion to dismiss or motion for summary judgment or motionfor judgment on the pleadings)

Motion to quash in crim pro: Disadv: if prosecution is weak, dnt file this, go to trial so that double jeopardy will apply. Bec if file & info is

dismissed, can just file again

o Counter claim answer

o If other def: 3rd party complaint

Burns: lawyers always deal w probabilityo X file a case bec its a good case, u file bec u assessed out there & can state it can win or that the client can handle the

length of the litigation, etco When file, there are many other considerations aside from evidence, etc

Setting up pleadings takes a long time:o Service of summons

o Service of other pleadings

o Concept of registered mail (X pleadings thru courier or air mail) or personally filed/served

Complaint is structured in such a way that theres 1 idea per paro Subj-predicate = simple!

Simpler pleadings, the btr the more words used, the more chances of making a mistakethus, chance of committing anegative pregnantn

Issue: assertion of a fact deniedo 1st theres an assertion, then a denial (def says smthng istn true/didnt happen)

o Ex) u signed the contract! I deny signingo When u set up an issue/s, u alrdy know the evidence available

Issues created from filing of pleadings sets up the parameters of the trialo Bec know the evidence availableo Sets up the kind of issues ull engage in

o Crim pro: plead guilty = everything true!

Plead not guilty = everything deniedo Civpro: can deny just certain things/parts

Fatal mistake in pleading, WONT be able to engage in trialo If dont set up the logistics properly, u may go to war wo no ammunition

What wins a case is the way u set it up = Civ Prdo X cross examination will make u winits more of a formality in the Phils

o The theoretical workings here in the Phils are in the struc of the pleadings

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Pre-trial Issues to be litigated are laid down Exhibits to be presented are marked Facts wc bth parties agree to wont be litigated anymore Purpose: to save some time from the trial

Trial Has a flow chart w/in itself

Judgment 1st judgment the trial judge makes the 1st decision

Execution of Judgment U may win the case in round 1 &2, but thats just on paper, havent really won for the client

Most difficult part is execution U can lose here by not being able to execute the judgment, even if u won the case

Know the provisional remedies (5)o Designed so that the status quo is preserved during litigation

o Impt for a lawyer

o Part of the main thing, just assures the judgment will ltr be complied w

o In the meantime, can use this for discovery procedures (5)

Interrogatory, depositions (test witness b4 gng to Ct), inspection of docums, etc Ordinary civ axns: impt bec normal way of dng things

Spcl civ axns: rule 63-71o Spcl bec ea of them have variations of the basic/ordinary procedure

*Movement of class:

Basics understanding norms alternative modes of dispute resolution (mediation, sense of strength & weaknesses in resolving in alawyers way) Q of jurisdiction pleadings onwards.

Dec 4Subic case: 1 conviction (Smith) 3 acquitted

Prosecution: Atty OrsuaDrilon17


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Def: Atty Justianno, Atty de Venecia Judge __ Lots of technical issues involved

o Now that Smith is convicted, can he remain in the Us Embassy? Shld be brought to jail?

PNP got custody of Smith, now in Mkti City Jail

Commotion happened byut PNP got him even if the Marines had more manpower, bec the PNP had a judgmentfrom the Ct

This can affect our relations w the US: where APEC is held, Visas approved It was really a conflict btwn ppl in the defense & ppl in the prosecution

o But the its the lawyers who spoke for them

o Lawyers have a critical role in society, they play a role in the political processes, they articulate the positions of theirclients

Thus, impt to KNOW procedure Orsua didnt have the manpower or resources, just had volunteers to help them (posed as Nicole) In the Ct crm, not the credentials or transcripts wc matr, but ur ability to work procedure

o Our knowledge& ability to translate this into something physical (eg writing a pleading) is all we will have out there & wc

will mtr No time to study the entire struc of civpro, only time to do so is now

Summary: Continued w the Hohfeldian perspective

o Every rule reqs a generalized beh & the rule looks at the proscribed beh & states the conds under wc itll be exercisedo Theres a standard of beh contained in any norm/rule

To be a good rule: look at the law/beh reqd by the state, look at the reasons for it & look at the conds for it to apply Cause of axn: can prove that theres a duty on 1 person & anthr w rights

o Rights existing corresponding to a duty corresponding to a R-D correlative

So need to prove the facts exists If u have a pc of evidence, it can lead to a conclusion that a fact happened Primary rule: breach of this gives rise to 2ndary rules Ex) common carrier: exer utmost dil of a good father of a fam breach!

o Show that theres a R-D & a violation of such, thus anthr rule kicks in

o So if theres a right, theres a duty of the other to pay damages

Standards of conduct are conditioned on WON a primary rule exists & 2ndary rules rely on primary rules bec they arise onlywhen the primary rules are breached

o Mode of thinking, in order to understand a substantive cause of action versus substantive relief

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Theres a diff btwn the 2 Ex) penalties are conditioned on a commission of an offense There are 2 kinds of 2ndary rules:

o ______________

o Given that theres a cause of axn/offense, provided theres a relief provided under substantive law, then, othr 2ndary rule

is 1 HAS the privilege of filing a caseo Thus, no procedural right unless theres substantive law that has been violated

Knowing the procedural right granted to a client is diff from knowing what to do in order to enforce sucho Ex) knowing how to file a complaint

o Knowing procedure tells u the reqs & how to put it in writing

Pleading: can discern it from the rules & u can write it the way u wanto BUT theres certain conduct wc isnt acceptable for a lawyer (ex manner of dress, how u write a pleading, etc)

o So in writing out pleadings, tehres an acceptable way (ex. font = TNR, bookman, arial, courier)

there are certain points we will need to be traditional, but there are cracks have to be able to translate the privilege into procedure

R-D correlative ea has a R & D, but there are things over wc the rights & duties exist

o thing is called the subj-mtr

o R-D amng humans & w the institutions we endow w leg personality

o Know when a class suit is allowed vs a consolidated case

o Ex) right of reinvindicatoria/recovery of a parcel of land, but thing over wc reinvicatoria exists is the lando Ex) intellectual prop over a patent

o Ex) cert of stock thing is the share represented by the certificate

o The thing isnt the right itself but the subj mtr over wc the right exists

Res: refers to the entire concept to of litigationo Much broader than a subj mtr

X all R-D correlatives have a thing over wc its exists = no things or subj mtro Ex) right to take an enthe trance exam, but dnt have the inherent right to enter the college

Whats impt is we see the correlatives & be able to distinguish 1 prestation from anthro Contained in contracts, statutes, etco We shld know what beh is necessary & from there you can draw out many rules coming from it

Ex) oblation: statute = tangibleo Right to reproduce = intangible, theres a copyrighto If a corp wnts to transact w anthr person, principal idea is to lease the prop to anthr to earn money

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o Principal prestation = right to replicate

o But need to put in conds

o Key in drafting is to understand the principal prestation & oblig, & radiate outward from there

Allows us to understand why were suing As lawyers we try to predict the most malicious, logical extreme sit

o We assume the other party wont comply

o Our duty is to impute malice to the other party & create provs to prevent such

o this is our modal of thinking:

framework: 1) think maliciously & provide for it, 2) identify the key prestation/obligBurns article

our appreciate of facts is opposite to the scientific method fallacy of affirming the consequence: for a certain conclusion to happen, there are many causes

o a lawyer chooses 1 & isolates it & tires to convince the judge that its the reason

ex)1 eye-witness, if the other party cant present other evidence, Ct wil have to conclude tha tit happened

Ct has to start tabularasa: cant say they know of diff instances/reasons Bec our theory is there are many sides to the truth, we CREATE stories = fundamental trial technique

o scientists: tries to prove that theres a cause & effect by showing that certain things cldnt happen in order to prove histheroey

a lawyer produces a story & ea story produces a particular reality in Ct: ea party is understood to have stories & the dominant theory is we have an institution (the Cts) who will listen & be able to

det a value-free narrative & det what the laws are & if they apply in order to attain a decision = Rcvd View lawyers now present scientific evidence

o ex) trademark cases in Phils

show the marks to the judge & he decides if its too similaro US/Europe: can conduct a survey to det if the sign is minterpreted

So sampling takes place = scientific evidence is presented Phils: sci evidence isnt affordable so we usually rely on 1 witness

o Results in injustice

If client dnst have the resources to access the evidenceo Witnesses dnt usually wnt to be bothered or afraid to testify, so client may have to pay the witness to testify = witness fee

(allowed)o Difficult to persevere evidence & even discover evidence

Ex) if ur a nobody, police dnt usually take ur cases seriously stolen cellfne Creating stories isnt evil, its a part of life = just hope it approaches accuracy

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o Thru our senses, we cant acquire all the info available, so were selective of what e take note of = impt to know the things

wc will be relevant We necessarily have to make sense of a mass of data, so we take into consideration evidence presented

o To create a theory of the case, we shld KNOW wc leg prov shld be applied (we cant guess)

All this shows the weakness of the adjudicatory process, but this is what we have to work w Creating a story, either closest to accuracy or story in order to win = ethical Q wc ea person decides on their own

Pretrial: map out all the details, filing pleading Trial: where the OF & EF are considered Judgment

= all this happens in the TC; 1st stage* crimpro is more complicated than this

Civpro: for Cts to start, need to simplify things in the pleadingso Everything wc happens b4, happens in the firm

o You assess 1st b4 u file, but in reality, ppl pay 1st & file

TCs: RTC, MTC, MCTC = X called inferior Cts, called 1st

level Cts 2nd stage: pd of appeal (CA & SC in some cases) 3rd stage: goes back to the TC for the pd of execution

Plaintiff will want to get to execution, def will want to go thru all the detourso Reality: more difficult to be a plaintiff bec u have to discharge the burden, def just has to sit back& wait for them to commit

a mistake B4 filing, know WHERE to file:

o Jurisdiction: power of Ct to hear, try & decide a case

If improper, can be attacked at any timeo Venue: location o a spcfc Ct

If improper, attached thru a motion to dismiss

Discussion:Alternative Modes to Dispute Resolution

Most practices will revolve arnd this

Arbitration is now a full blown optiono Principal mode of conflict resolution

ADR: normally just look at the struc, but this isnt enfuo Thus we study Getting to Yes & Difficult Conversations

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Getting To Yes

Result of a Harvard Negotiation Proj: to look at whats been known abt negotiation to create a txtbk Staple rdg of ppl who want to be good negotiators

Positional Bargaining: focuses on positionso Only looks at the results, insists on the pos rather than the reasons for that position

o It pits power w anthr power

o Itll depend on who has dominance over the othero Ur doomed to using power in order to achve a result but you dont come out w a sustainable result, bec theres a possibility

of it not being complied wo Getting into an agreement is the 1st part for lawyers, for others its the end

Bec lawyers have to look at its enforcement/execution & itll be breached

Ex) create a law to regulate the price of PLDT & Globe, but after its made, they wont follow it immediatelyo U only get half of what u want

Ex) focusing on grades: u choose the nice prof over the mean prof, not knwng that the mean prof is the btr teacher never satisfied bec u just find a middle ground

Principled Negotiations: focus on the interestso If bth parties agree to a result, where bth their interests are satisfied, no need for a lawyer to make sure its complied w

bec theyre bth happy/satisfiedo there may be anthr way to skin a cat!

o Look at the REASONS behind the positions of the parties

o Look for advantages, by look for mutual gain

Ex) min wage is 350o U wants P500, mgmnt wnts P400

o PB: they bth insist on their positions, but they secretly can accept more/less

o Haggle back & forth

o U wants higher wages bec they may have a cost of living study wc says 500/dy is enuf ofr a fam of 6o Mngmnt wnts 400 bec of cost purposes they can give more nenefits in kind but not in cash (bec cahs is transferable)

o Common interest: Co stays afloat & happy EEs

o So what are the other solutions?

Medical prog: get a good doctor who can treat any ailment so long as ur an EE

Transpo: supply a shuttle (productivity dstn go dwn & cost-effective) Bonus Day care centers

o Can negotiate on a combo of the package insteadf forcing the amtn of money/result

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Ex) gradeso Admin: 2.75 so that students will study harder & learn more

o Students: 3.00 bec dnt wnt too much restriction; only goal is to finish

o 1.0 motivates those w higher grades

o Students have other motivations to study

Ex) NDF: Natl Democratic Front (1968)o Coalition allegedly aligned w CPP-NPA

o Claim to fame: longest running revolution in history (2008 = 40yrs)o GRP: govt of RP

o When negotiated didnt talk abt territories

o Started w what were their common grounds human rightso Even met in advance to det guidelines for it

o Started talking abt principles

Weakness of Getting to Yes: works for indiv-indiv, U-mgmnto But when dealing w greater/bigger representations, more diffcult bec political interests come in

BATNA: Best Alternative to a Negotiated Agreemento This is ur bottomline if u dnt agree then ______

o Will always approach an implementing prog wc will have mistakes bec its human nature

Bec it dsnt address the fundamental Q

Negotiate w a cool head Emotion: sep the ppl from the prob Getting to yes: look at things from a larger/broader perspective

Difficult Conversations

Goes into the nitty gritty When u get into passionate/difficult conversation, u cant sep emotions fro convos bec its usually based on emotions Dnst mtr how often were told to be objective bec emotions will always come into play

o When we deal w these interactiosn, there are always emotions

There are 3 diff convos: regardless of the topico What really happened:

We tie this up w a story

Looking at the stories of 2 indivso Feelings convo:

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How we feel abt things/we get too invovled Thus, need to get a disinterested person = lawyer Everything mtrs to u in sme way

o Identity convo:

Everything affects us so it somehow reflects smthng abt u

We tend to mke conclusions abt our own identity but things happen not bec of our identity but they may end upchanging our identity as well

Dec 12

Getting to yes: focus on the interests/reason behind the positions Principled negotiation: the dialogue isnt abt positions but is abt the reasons behind the positions Positional Bargaining: focuses on positions Interests as opposed to the positions of the parties

o Interests:reasons/purposes behind their position/result

o Position of the parties: only looks at the results/ positions

Insists on the positions rather than the reasons for their positions

Ppl get into a position bec of the things wc they want as a result Core concept: focus on the interests, the reason behind (motivations) the result or positions of the parties/what they want in the

end In negotiation, what ppl shld tackle are the resons/motivations wc impel the positions/results

o Ex positions) UP campus

Students: dnt wnt any army ppl w arms in the campus

administration: want secu guards/UP police to be supported by the phil police

these are the results/positions but why do they want this?

Students: bec of safety? Bec campus is only for students, dnt trust the police bec they can tell their superiors whatsgng on in UP

dont want any show of coercion Admin: students can have their freedom, but when they get too violent, need some1 to control them = we need

secu & need to show others that the admin has the will to impose themselves on bad ppl If think the other has good intentions, itll be easier to get to the reasons behind their positions

o You can capture the real reasons, instead of assuing that the person wants the worst

If said: ok 5 policemen only = focuses on the results In principled negotiation: can create options wc can address the positions of bth

o Solutions tend to address the reasons & it appears creative bec you conjure up other things wc address the interests of

both

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Called principled negotioation bec both interests are satisfied/all address the reasons & the parties are more prone to complyingw the agreement

Laywers interest isnt the interest if the client, so win or lose, youre paidso only the lawyers interest is satisfied Adversarial litigation: sm1 elses interest are satisfied/benefits, instead of the parties Emotion: usually dont last PN: says emotions disturb/they motivate, they make us human

o Thus, PN arent effective if the conflict arises bec of emotions = conflict is emotion

o Bec if you talk abt the conflict in an objective way, wo regard to emotions, it wont work for the parties = wont listen

Different Conversations: What happened: we each have our own frame/perspective/story to tell given a fact

o Bec there will always be diff perspectives wc have some common ground & some might not understand your

positions/perspectiveso Thus, we shld recognize that stories ppl tell might be genuine on their part

o But there may be a 3rd or 4th version, if we work together, they may agree on certain things

o There might be an instance where bth parties may agree you open conversation & try to find common ground

Identity conversation: always abt thinking that its just bec the other party dsnt agree, you think its abt youo Inevitable

o Maybe the pob is that the person takes things too personally

Feelings conversation: you ave to acknowledge that youre a person, identify the emotion & look at how you can control thiso Usually ppl dnt identify the stages of emotions, so end up losing control

o Need to identify it bec emotions are inevnitbale

o Need to master what your buttons are/what makes you lose your cool bec if you ant, youll be defeated

A seasoned negotiator/lawyer: knows their weaknesses/knows that smthn may be your vulnerabilityo Any strength may be a weakness later on

Dec 14 RA 7160: Chap 7 KB (b4 PD1508) All disputes btwn parties residing in the city or municipality

Civ cases: plaintiff is the priv party Crim cases: plaintiff is the state; party leagally injured is the state but its possible for a crim case to have a civ case tried at the

sme time (R111: all civ cases are deemed to have been impliedly instituted w crim axns) 2kinds of remedies in the entire procedure:

o *Relief: what the party is asking rom the Ct to address an injury/result of the case wc the Ct can enforce

o *Where theres a R-D corr, theres a breach = either a State or priv indiv is wronged

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o 1) action: there shld be a R-D wc is breached

a) crim

b) civ a)ordinary b) spcl civ axn

o 2) spcl proceeding: process wc establishes a fact; estabs a fact or status

X R-D wc is violated

Ex) adoption, pet for change of name (our name is the way we are known/lable so not easy to just cnge becyoure trying to change a status or fact c dsnt affect the pub ex. creditors)

Theres no ordinary

Spcl = means that ea & every proceeding is unique Cts have J over certain kinds of axns & proceedings Conflicts under KB (informal so no technicalities) arent proceedings wc may ripen into axns

o Bec if dont go thru the conciliation process, cant go to Cto Law: provided they reside in the sme city or municipality

Provided in any kind of civil axns

Gen rule: therefore - all civ axns shld undergo KB Exceptions: when a prov remedy is alleged in the complaint (s412b)

Katarungang Pambarangay (KB) Process is negotiation

o Tho parties can choose the mode of settling disputes at 1 point

o Negotiation: decision may be based ona 3rd party = mediator

Mediation: parties make the decision themselveso Vs arbitration

Lupon chairman: from the lupong tagapamayapa Pangkat ng tagapagkasundo (3mems): X an arbitration panel, its a mediation panel

o Parties can only have an arbitration if the parties enter a contract = an agreement to arbitrate (contract wc leads to

arbitration promotes party autonomy)

Provs of the contract wc can be include wc stats who will be the arbitrator

Related to the ADR Act of 2004 (says parties have party autonomy)o X lawyer shall represent a party he can assist & advice

o 1 can refuse to arbitrate thru representation w/in 5 dys (s413)

Procedure:o File a complaint w the lupon chairman

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o Lupon chairman summons (nxt working day), attached w the complaint of the complainant

o w/in 10 working dys, shld meet the parties

o *punong brgy just facilitates the negotiation, communication & assist the parties in resolving the problem

He communicates btwn the parties (mediation) = shld be an agreement btwn the parties, shld be in writing(amicable settlement)

Ex) Malaysia acted as a mediator btwn the MILF & the Phil govt

Amicable settlement: agreement on the merits of the disputeo Repudiation may be done w/in 10dys from date of executiono Reiterated in Galuba v Laureta: 10 dys wld be unreasonable bec wld need time inspect

Xextendable, bec law says 10dys = mandatory bec provided by law (can be changed only be passing asubsequent law) by Congress (2houses Senate & HR)

X be changed by judgment

Jan4 KB: resolves all types of disputes, except when provisional remedies are alleged in the complaint Provisional remedies: Rules 57-61 X need for KB

o

57 prelim injunctiono 58 prelim injunction

o 59 receivership

o 60 replevin

o 61 support

Lupong Tagapamayapa: a roster/a list containing the names of those who can constitute the Pangkat Tagapamayapa (mediationparty)

Arbitration: arbitrator renders an award Concillation/mediation: 3rd party facilitates communication & negotiation btwn the party

o Neutral 3rd party all the time?

o No, parties can agree on who will act as the mediator *marriage: an agreement imbued w social interest

o There was a mediator: the frnd who introduced the boy & girl to ea other

o The mediator dsnt always have to be netral

In C/M, the 3rd party is usually not neutralo Its jst a mtr of agreement btwn the parties/jst a mtr of preference btwn the parties

o Sme in real life: generally the 3rd party isnt always netural

o He can still be effective even if hes biased

o Neutral in what aspect?

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Thus, it dsnt matter, dnst need to be neutral at all times Pangkat Tagapamayapa: concillation panel

o Diff from arbitration bec NEVER gives an order/award & it never decides

o Jst facilitates communication

Order: a decision from a Ct of lawo May not refer to the case itself but jst 2 a certain issue

o Not necessarily a final order, may be interlocutory, etc = spcl

o Ex) arrest warrant, search warrant Order w spcl names, but theyre still orders

o Ex) writ of habeas corpus

X a final decision, just interlocutory

X a case/proceeding, but an order

The consti prov on this refers to its suspension

If its suspended, 1 may file for a writ HC

U may not avail of the decision to bring the person to Ct but u may get a decision saying that u have no right todetain the person

Its issued while the case is pending Impt bec its an extraordinary process that allows u to ensure that the person is still alive

Arbitration panel: gives an award/order, decides for the partieso Ex) CT: decision/order of the Ct is called a judgmento May come up w a decision but its called an arbitral award

Why the diff in terms, if theyre the same?o Bec many of the provs in the Local Govt code refer to remedies against an arbitration award, wc is diff from arbitration

itselfo Also, future laws (intl laws, etc) refer to the concept of an arbitration award

Pangkat T dsnt render an A award, unless during the process the parties agree to undergo arbitration & they choose the PT tobe the arbitrator

o However, the parties may choose some1 els to be an arbitrator

Can there be an arbitration agreement under the KB law while the case is infront of the punong brgy? YESo Theres no limit in the law on the agreement to arbitrate

o They can agree to do so at any stage of the proceedings

Agreement btwn parties is called an amicable settlemento Its a contract AND a final judgment of a Ct of law (2 characs)

o If it was only a contract, then if its breached, youll have to file an axn but before that, youll haveto go thru KB agn

It becomes anthr conflict wc ndergoes the entire process of Rule 1-71 & KB

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o Mst impt rule is Rule 39 execution of judgment

Can only execute a judgment wc has undergone appeal or has waived appeal or appeal pd has lapsed

Shld be a final judgment!o Thus, since its in the nature of a final judgment, if brached, the party can jst go to Ct & file for execution of judgment

File for execution in the MTC

Ex) Natl personso A owns a bldg. he lives in Katip ave, bldg is in cubao = bth is in QC

o B leases 1 of the stalls in the bldg for 1M/mo = 13.2M/yr (w VAT)o B lives in UP village. B fails to pay 2 mos rental

o A approaches u & asks whether it shld undergo KB>

o They reside in the sme city, but diff brgys. But since their in 1 city, they shld undergo KB despite the amnt

Ex) X natl personso Ayala wnts 2 develop 38 hectares. The cost of devt is 4.7B minimum as rental to UP

o 1 prov in the contract: upon construction of the 1 st bldg, shld pay 10% of the rental & ltr it increases to 15% so foreverything Ayala earns, UP gets 15%

o Ayala misses payment; shld UP undergo KB?

o NOKB requires residency & Ayala dsnt have a residence, only a principal place of business Also, theres no mediation btwn 2 corps

Also, UP is a govt instrumentality

To mke absolutely sure that no KB is needed can immediately file a case & ask for a provisional remedy = prayfor a preliminary attachment

Regardless of whether its ranted, its immediately removed from KB A & B case (natl persons):

o A files an axn in Ct, B shld file a motion to dismiss based on a cond precedent for filing a case (Rule 16, par J)

o Royales: its not a Q of whether the Ct has auth to decide but its the failure to undergo a precond for filing a case!

o This is diff from jurisdiction

Defn: law authorizes a Ct to hear cases = it imbues it w the power to hear & try certain cases

Conferred by lawo Jurisdiction can only be removed (over the res, subj mtr, person) by a subsequent law or invalidation of the law granting

jurisdicationo Authority of the Ct has nthn to do w the parties in no case do the litigants participate in the creation of the law so

jurisdiction has nthn to do w what the parties do/fail to doo X a case of no cause of axn bec the cause of axn is alrdy present - the law jst reqs that b4 the cause of axn can be brot

to CT/b4 it cld ripen in2 a case, u have to undergo a procedure

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o In Royales, called an insufficiency of a cause of axn, but this isnt accurate so it was revised & now called a failure to

undergo a cond precedento Thus, the vice isnt lack of jurisdiction, but a failure to undergo a cond precedent

o Failure to undergo KB = X change the law, its merely a failure to comply w the law

Lay person: all the sme to himthe case is dismissed so the terms dnt mtr Lawyers: insist on the technicality bec failure of jurisdiction can be raised at any pt of the procedure, even if the parties fully

participateo Bec it dnst change the fact that the Ct had no power to hear/decidethe case = any judgment has no leg effecto X statutory or consti auth to hear, try or decide an axn

Wo the requisite prov giving the Ct jurisdiction, a party can file a motion to dismiss at any stage Royales: its nvr abt jurisdiction Can a cond precedent be waived? YES

o A right granted by law may be waived

o Auth given to a Ct cant be waived, bec if not granted a power/auth, cant exercise it

o A cond precedent is a right granted to 1 of the parties, wc can be waived by the party granted the right

Ex. right of self-incrimination can be waived so long as the reqs are present

o Gen rule: once a right is granted to a person, it may be waived, provided the waiver is in accordance w lawo This waiver is done in procedure, if the Q isnt raised seasonably

Seasonably: means that it shldve been raised via a motion to dismiss under Rule 16 Usually AFTER a complaint is filed or anytime B4 an answer is filed

o If the ground isnt raised seasonably, it can no longer be raised

Unlike jurisdiction, it can raise the Q of lack of it/motion to dismiss at any stageo After the pd for filing a motion to dismiss or filed an answer = the right is considered waived

Royales is procedurally significant bec it tells us that the remedy is to file a motion to dismisso If the case didnt exist, the defect can be raised at anytime thus, its impt to make the proper distinctions

Such technicalities are impt bec waivers shld be very clear!o If avail of the remedy in the end, it may complicate the entire process

Amicable settlement:o May be immediately enforcedo But it may be repudiated

o Ground: consent was vitiated y fraud, violence, intimidationo Remedy: repudiation (label for the procedure) = its the vehicle

o Done by: filing a statement to this effect w the brgy chairman & sworn to b4 him = sworn statement (swearing = dne b4 anauthority wc is usually a notary)

o The sworn statement is the procure but it has a basis/ground in order for the process to apply

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o Force, violence, intimidation = vices of consent

X argue that u had less info

Fraud: other party was misled & acted on info wc is completely false

Lack/less info isnt fraud Y do we allow contracts when we know that the other person dsnt have full info? Bec we charge ppl w full

knowledge bec wo contracts, we wld need a huge admin machinery to facilitate such & no person truly knwseverything

Assumption that every indiv shld have full knowledge of what theyre getting into Motion to dismiss & repudiation = bth are processes/vehicles & the grounds for them are limited...only the grounds listed will

allow the process to move Can repudiate an agreement to arbitrate BUT an arbitral award CANT be repudiated

o The amicable settlement & agreement ot arbitrate are contracts, thus persons are allowed to go back on it bec of a vice in

consento The arbitral award is the product of the agreement, thus, the grounds for attacking such are very few

Repudiation of amicable settlement:o

10 dys from date of settlement/execution of settlemento Ex) P & J entered into an amicable settlement, while P was signing, J had a gun & showed it to him, saying it might go off

it he didnt sign (Jan1, 07). P has a hard time getting a lawyer, but he gets 1 on Jan 15, 07o Whats the remedy? NONE, the law says 10dys & the Cts cant change the law

o 10 dys is Jan 11 (exclude the 1st, include the lst)

o Galuba: X repudiate, the finality of the settlement cant be attacked = so whats the remedy?

o In the AS, P was to pay J 10Bwhat now?

*my answer: pay J or consign the amnt. Then file for annulment of contract bec of vitiation of consentso comply 1 st w the AS then filedfor annulment

Jan 8 (ach & donna)*ach

Compromise: adjudication

Mediation: amicable settlemento Is a cond precedent for filing a case

o Failure to mediate isnt a matter of J

How to attack:o Amicable settlement: repudiate

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Why the need for a Ct order? Con of compulsory mediation

o Contradicting main motive of mediation

No agreement: certificate to file axn (dsnt expire) Agreement: amicable settlement

o Contract & final judgment

o May repudiate w/in 10dys from date of execution of settlement

Lawyers may be present but cant represent the partyo Why? To allow parties to proceed in GF, to facilitate, they muddle up issues

ADR of 2004o S14: lawyer may legally represent/assit in mediation; may be waived & rescindedo Why are there provs that presume the other party ddnt want the amicable settlement

Degrees of conest, cld be grudgingly given

Enforecement provso 1/in 6mos: MTC; past 6mos: axn for revival

ADR s3(a): includes

o Arbitration, mediation, conciliation, early neutral evaluation, mini trial, combo Adv of ADR: quiker resolution of conflict: heavily recommended Mini-trial: contractual, bth parties agree, non-binding Were trained that parties stick to their sides but in reality, they can change thier minds

Mediation: voluntary, not compulsory like KBo Problem: if the contract provides for mediation w a 3rd party, wc applies? Contract provs (ADR) or KB

Look at ADR policy policy autonomy

KB not applicableo S6 exception to ADR: cant be mediated

Labor disputes Civil status of person

Validity of marriage Grounds for leg sep J of Cts

Future legitime

Crim liability

By law cant be compromisedo State interests are involved

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Breach of substantial prov of a contract providing for mediation, how do you enforce the prov?o Go to Ct to have the prov interpreted

UNCITAL: arbitration provs are separable from the contract

*donna KB allows a shift from mediation to arbitration Whats in the nature of the arbitration wc prohibits gng back to mediation? (agreement to arbitrate) bec mediation assumes

that theres no agreement Compromise Agreement: adjudication; amicable settlement; mediation in KB Compulsory Meidation: (mandatory) compelled to go to a process in KB in mediation KB: mediation (amicable settlement) ADR: arbitration (arbitral award) S412 (b)(3)

To avoid KB, file an axn that contains a prov remedy:o Prelim injunction

o Attachment

Provisional remedies under the ROC:o Prelim attachment

o Prelim injunctiono Rcvrship

o Replevin

o Support pendente lite: even compulsory mediation cases are domestic disputes

COMPULSORINESS in mediationo How compulsory is mediation? Simply a cond precendet & not jurisdictional (Royales v IAC) & (Morata v Go)

failure to state a cond precedent = R16, s1j magic words = words sir looks for in the exams End of concillation: either succeeds or not What is issued?

o Cert to file an axn no conciliation is reached, amicable settlement 0 if a settlement is reached

Amicable settlement v Cert to file an axno Cert to file an axn: dnst expire, but the axn prescribes

o Pd of repudiation of amicable settlement: 10dys from the date of the execution of the settlement

Lawyers can coach their clients in KB Why are lawyers not allowed to represent clients in KB?

o To facilitate the resolution of the case

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o To allow the parties to agree

In ADR, a party may designate a lawyer or any other person to provde assistance in the mediation (may be represented by alawyer)

Galuba v Laureta: after the expiration of the 10 dy repudiation, but theres fraud, intimidation?o Sir: relief is not to comply then, undergo anthr negotiation when a dispute arises

Enforced w the MTCT; after 6 mos Petition to nullify b4 the MCTC & MTC

o Why is there a need for a petition to nullify b4 a Ct of law? Very difficult for the arbitral panel to go back to their work Unreasonable law may be challenged DP challenge ADR: mode of dispute resolution?

o Mediation

o Arbitration

o Conciliation

o Mini-trial: non-binding resolution of a conflict (contractual)

Trial on the cadse b4 senior decision makers or w neutral 3rd persono Early neutral evaluation: a panel assess the conflicts

o Or any combination thereof Advs of stipulating submission to ADR in a contract:

o Party autonomy, freedom of the parties to make own arrangements

o Speedy resolution of cases (bec of cligging of dockets, few competent judges)

o Some cases reach 10yrs to be resolved

o However, to provide for the right law applicable, you will still need a lawyer (the secret)

Most contracts have ADR clauses ADR is hevily recommended Voulntary Arbitration (RA9285) ADR Situation: if parties reside in the sme city but in the contract there is a ADR clause to undergo mediation, do they have to

undergo KB?o YES, bec 1 has to get a certificate to file axn to enforce the mediation provisiono Is this logical?

A party may be named in the mediation caluse as long as there is consent (por atrui) Meidators need accreditation from the DOJ: to det competence

o S50to certify ADR practitioner & ADR service providers have undergone the professional training provided by the Ofc

Party autonomy is the policy of the state KB: compulsory mediation where they may agree to arbitration

ADR: voluntary mediation

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o Labor disputes

o Civil status of persons (daughter, son, married, single, major or minor)

o Validity of marriageo Any ground for leg sep

o Jurisdiction of Ctso Future legitime

o Criminal liability

o Those wc cant be compromised State interest in marriage: family If not spcfc (the mediation clause): the law kicks in Mediation process?

o No, process provided in the law

o Facilitation of communiation negotiation

o Assists in the rdg of a voluntary agreemento Steps:

Write the mediation prov

Parties have to agree on who the mediator it Try to negotiate first Write a lttr to the other party, regardning the mediation prov, mediator, grounds, failing in wc, Ct to enforce the

contract spcfclly the voluntary mediation clause to det the time, place, mediator, etc Trigger an agreement, BEC THE LAW DNST PROVIDE FOR AN EXACT PROVEDURE International commercial arbitration seperable (from the main contract) s16 of the UNCITRAL Model Law Can parties agree thru an arbitration to det the mediation process?

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Jan 9ADR is one of the quickest way to process the issue(donna)

Certificate to file axn: proof that 1 or the parties have undergone the process reqd in the Local Govt Code

Def: if MTD re: lack of cond precedent Plaintiff: allege the existence of CTFA CTFA: alleged in the complaint as existing

o Integral part but absece of CTFA isnt fatalo General allegation of cond precedent is sufficient

Ground for MTDo Failure to allege/state the existence of the cond precedent not fatalo Failure to undergo the cond precedent fatal

Significance of missing a statement:o May lead to a denial of DP if the lawyer keeps on changing the complaints but the ROC allows the amendments of

complaints, info & supplements to the complaint MTD: the cond precedent for filing the claim hasnt been complied w (dsnt exist, not merely failure to state a cond precedent)

Diff from failure to state a COAo Diff btwn stating & the existence

In KB, ground for MTD is non-existence Repudiation of amicable settlement: process, remedy of party aggrieved by it

o Labelo Repudiation: a sworn statement as opposed to a petition to nullify by the complaining party (not the lawyer) b4 the lupon

chair or the notary Grounds for repudiation of an amicable settlement:

o Vitiation of consent by: fraud, violence, intimidation

Petition to nullify: also sme ground as above arbitral awardo File a case to nullify (legalese)

Compulsory arbitration:LA If arbitration becomes compulsory when ds the law kick in? LAs need not be lawyers

Adjudication Compulsory arbitration

Judiciary Executive (DOLE)ROC Own rules & procedures

- more flexible procedure

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Compulsory arbitration: conflicts arising in construction industryo No, not compulsory arbitration s4 of EO1008, must agree to submit to voluntary arbitration

Construction industry conflicts: voluntary arbitration After the conflict arises, the parties may agree to arbitrate Lawyer may represente in the arbitration

Arbitrator not necessarily a lawyer not a practice of law In intl law is there compulsory arbitration: in gen theres none, but there are some bilateral investment treaty of RP-Australia

(Investment Disputes) 249 countries under WTO (250-300) Convention of settlement of investment disputes btwn states & nationals of other states also a compulsory arbitration

WTO: provides for compulsory arbitration Voluntary arbitration:

o Domestic arbitration: 2 types

General

Construction induatry (EO1008) Who can be arbitrators? Appointed by the parties (establish their confidence in you)

Model:o i: institution that takes care of the roster

o e: contract of arbitration, the choose the procedure

there is a Phil Mediation Center UNCITRAL: UN Commission on Intl Trade Law

o Suggests statutes dealing commercial law

o Made the model law

o Uncitral: mere annex in RA9285

But weve adopted the Model Law (s19,RA9285)

RA9285: international party excludes domestic subsidiary conlict chap4 wc incorporates the model law wc includes thedomestic subsidiary

UNCITRAL: general Ct cant interveneo Exception: when otherwise provided by law (a33,a34, etc)

o Not goverened by the model law (ex. dispute btwn the arbitrator & the parties)

o A5 applies only to international domestic arbitration

Theres a conflict here btwn s32 & 33o Domestic arbitration: governed by RA876 (s32)

o Model law suppletory?

Wc governs KB or voluntary mediation?

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o Possible argument: voluntary mediation bec of the policy of party autonomy (sir wld go w party autonomy)

(bones)2 outcomes in ADR

1. No settlement

a. CFA (Certificate to File Action) proof or evidence that KB was complied with. File action in court*2. Settlement/award

a. Amicable Settlement (parties agree)

i. Aggrieved party can repudiate within 10 days from the execution of the settlement (filing of a sworn statementby the aggrieved party) grounds are vices of consent. All you need to do is file it and the amicable settlement isvacated.

b. Arbitration Award (arbitrator/s decide)i. Aggrieved party can file an action to nullify. Grounds are vices of consent with regard the arbitrator/s.

Aside: ONE thing good to remember, which will help us in our study of remedial law is as follows

Label name / magic words / Toyota corolla

Remedy Vehicle itself (not just the label but what the vehicle itself)

Grounds the people who ride the vehicle

So Toyota Repudiation can only be ridden by Misters Fraud, Violence and Intimidation. But that is not the only car they can ride, theycan also ride the Toyota Petition to Nullify

*What is done with the CFA is that it is alleged in the complaint that such CFA is existing, and the CFA itself is usually attached to thecomplaint. But the absence of the attachment is not fatal to case as what is contemplated in rule 16 (1) (j) is the existence of theCFA and not merely that it is alleged. However, such can be attacked under rule 16 (1) (g) for failing to state a cause of action (ifapplicable).

Also, it is absurd to contest the validity of the issuance of the CFA, as the act of contesting is a proof that conflict does exist.

Aside: Why do we quibble about the importance of what is being alleged, making it seem as important as the existence of the fact thatmay or may not be alleged? Because, generally speaking, when you fail to allege it in a statement, it will be a denial of Due Process,as the other party would not know what to defend.

Is there such a thing as a compulsory / mandatory arbitration? Yes. The provisions on the labor Arbiter (Arbitration in the Constructionindustry is voluntary)

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If it is compulsory, what makes it different from adjudication? The Labor Arbiters derive its authority from the SOLE, the courts deriveits power from the judiciary. In labor Arbitration, non-lawyers can be arbiters (they study longer, specializing in a school of laborrelations for 4 years, not including Masteral and PH studies). In a court of law, lawyers (except generalists) are used.

Arbitration leeway to change procedure

Adjudication cannot change rules of court (there are some flexibility but still not that great)

Can parties agree on arbitration after the conflict has arisen? Y

Can parties provide for it? Y

Can lawyers be representatives in arbitration? Y

Can lawyers be arbitrators? Y

Can a non-lawyer be a representative? Y, but advantage of having a lawyer as a representative is that you already have a lawyershould you need to file a case.

How does one become an arbitrator? By choice of the parties. But they are chosen by the parties because they are known to be goodarbitrators, and they are known to be good arbitrators if they are part of an certified arbitrators list or something to that effect.

Internationally is Arbitration Compulsory? Y, example is the RP-US Bilateral Investment Treaty (BIT)

Why is International law a 3rd year subject? To create a domestic bias in the curriculum.

B.I.T. is entered into for the protection of investors. In case state party or the transnational have disagreements commercial arbitrationwith an international flavor is entered in to.

How many countries are there in the world? around 250-300 (249 are member of WTO)

WTO has a mandatory arbitration clause.

International Court of Justice, however, is voluntary.

Aside: Philippines proposed to China to settle Spratly issue in the International Court of Justice. China declined, as it is voluntary and itwill be easier for them to occupy the islands compared to us. We must wait for it to be a trade issue, WTO then will have jurisdiction,and this is mandatory.

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WTO arbitral awards, powerful body, as soon as you become a member you submit yourself to compulsory arbitration.

NAFTA also for North AmericaUS-SING BIT also for US & Sing

In the economic sense, arbitration is now very important

I. Arbitrationa. Compulsoryb. Voluntaryc. International

i. Commercialii. Non-commercial

d. Domestici. In generalii. Construction industry

Our law only cover international commercial arbitration.

EO 1008 creates a commission, form, all you have to do in construction contract is put voluntary arbitration and the law is deemedread in the contract.

Again:

Who can be arbitrators? Anyone picked by the parties

But how do you get picked? Join groups

Usually Eco-Law professors are chosen as arbitrators.

There are institutions that take care of the model and the roster, if you employ them, you get whole package.

When parties say there will be arbitrators, contract provides for the entire process

When parties choose a firm, the rules of the firm is followed. From roster, to fees, to procedure

Theres a Philippine Mediation Center that is being set-up

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IBP is also thinking of setting-up a similar institution

The International Chamber of Commerce also has an arbitral panel

The World Bank is a group of institutions (IBRD, IDA, IFC, MICA, and the ICSID)

A lot of investors will take ICSID, because if you go against the arbitral award of the ICSID, you go against the entire WB group

UNCITRAL they suggest to states model laws (arbitration)

When we adopted the UNCITRAL, we adopted it by making it into an annex (annexing it)

PAL (Phil Airlines) flies from Manila to LAX, a conflict arises, does UNCITRAL cover this?

Would any conflict for international routes be covered by International Commercial Arbitration?

DELL has a subsidiary in the Phil (incorporated in Phil) with 95% ownership by DELL Intl, while 5% owned by Lee, Lim, Ocampo &Kabatay (more money, be corporate secretary para more money din) the business is to hire in the Phil

Dell Phil contracts with call center operator, you negotiated and assured a friend that he / she will be a call center supervisor and not acall center agent. But he / she was assigned as call center agent. Would this fall under the UNCITRAL?

In UNCITRAL, as long as parties agreed that the subject matter of the arbitration agreement relates to more than one country.,UNCITRAL governs. Article 1 (3) (c), while in the definition of the ADR Law, a domestic subsidiary is not considered an internationalparty. The difference lies in that the ADR law defines an international party, while the UNCITRAL defines an internationalcommercial transaction.

What if DELL is an Australian company? Then RP-Aus BIT is applicable.

What is the courts participation in Arbitration? Articles 33-35 & fees and damages

Contract of parties and arbitrator can be arbitrated.

Art 5 applies only to International Commercial Arbitration?

In RA 876, can a party file and compel a court to appoint an arbitrator?

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For International Commercial Arbitration, the whole UNCITRAL is adopted. For domestic arbitration, only articles 8, 10-14, 18-19 and29-32 of the Model law was adopted.

876 governs or UNCITRAL?

KB of voluntary mediation (party autonomy)? But there is a statement that KB is not repealed.

Sir would go with party autonomy. You are changing the situation.

Re-read and make an outline of

RA ADR Law (with model law as annex)RA 876 (Arbitration Law)EO 1008 (Construction)NY Convention of 1958RP-Aus BITUNC RF FAA

Jan 11 CFA: absence of KB = ground for a motion to dismiss

o Non-compliance w Rule 16j means complete absence of KB

o Burden is on the def who is filing a motion to dismiss

Amicable settlement (AS): repudiation for vitiation of consent (3 grounds)o Violence

o Force

o Intimidation

Compulsory Arbitration: ex is the LC

RA 9285: ADR Act of 2004 Clarifies the mode of dispute resolution in the Phils Lists the modes of DR Are the modalities in the law exclusive?

o Ex) avoidance = mode of DR?

Yes , it is. Is it legitimate?

Law dsnt say that any other DR isnt legit so long as its by agreement of the parties

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Indigenous practices of settling disputes; family concillation, mediation, sheer power, mediation arbitration, etc = theyre all legitforms of DR

o Other exs) Ibayao truth telling; killing all the mems of a tribe

o Theres much more than trial by ordeal, there are other modes of DR

Mediation In mediation, there are mtrs tackled during the M wc is treated as confidential

* arbitration awards: arent precedents BUT the award itself isnt confidential bec it needs to be recognized & enforced There are at least 2 parties in M Ex) if exams are to be postponed, usually the classes undergo M bec the class Pres talks to the class regarding the sched If M is open to the pub does this change the dynamic btwn the 2 persons?

o YES bec theres a 3rd parte being spoken to the pub - & sme matrs are best left btwn the parties themselves

o So its impt to ensure the confidentiality in M = so that the parties can freely talk

Can the Ct subpoena 1 of the parties? YES (gen rule)o But the law lists exceptions

o Law dsnt say that theres no subpoena allowed if a person undergoes M

Gen rule: a person cant be compelled to testify on what transpired during a M processo BUT he may testify on info wc he knows, not related to the M process

o Mtrs dnt become confidential merely by their use in M

A person may share a fact wc he shared during the M but he cant testify that it was shared during M (sec9, par c)o Indep of its sharing in the M process it wstn inadmissible but the fact/process by wc it was shared may not be shared

AGAINo Theres NO prohibition against a party who participates in a M process to be called on by a Ct to testify

o BUT confidential info obtained during the M process cant be obtained/compelled to be told from the person

If the medium of info youre seeking is confidential, you cant compel a person to reveal it; BUT if the info is admissible even b4

its use in M, it may be revealed Ex) Counsel A asks counsel Bs client what did u say during the M process?

o Object!! Bec every mtr shared in the M is confidential

Reform the Q so prohib wont apply:o Ex) Pedro saw Maria sign the contract; then a conflict arose & they undergo M; Pedro says during M that he saw Maria

sign the contracto Ask: what did you do if any on Aug 26, in relation to ur conflict w Maria? What did you see in that room?

o Here, you arent using the info in the M proceeding

IMPT: info isnt rendered confidential by its mere use in M! (sec9)

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Mediatior & confidentiality Gen rule: Ct CANT subpoena him (sec9f) A party can be subpoena/called but for a mediator, the gen rule is they cant Reason: bec a mediator has no connection to the conflict aside from thru the M The parties however, may have info related ot the conflict wc wsnt subj to the M itself

o bec went thru M, possible that the parties tried to resolve it even b4 the M, thus there may be other admissible info

exceptions: sec 11 ex) pedro & maria wife of Pedro is present = is the info pub or confidential?

o Public: dsnt this imply there shld be more than 1? Ds it imply also that so long as it isnt private? = wc defn shld we follow?

Ex) secretary of the lawyer is presento Sec9d still applies = still confidentialo Relevant bec it recognizes that the present of certain ppl still makes the mtrs confidential & dsnt mke it pub

When does a proceeding becomg pub? Ex) P & M agree to meet in Jollibee w a mediator pub?

o You can argue that the pub had access to the info

o

Its has be come pub bec u chose Jollibee Ex) Mla Penn

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