The Pre-Trial Brief

By Atty Cesar T. Tirol

Introduction

“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 -

“SUBJECT: EXPEDITIOUS DISPOSITON OF CASES

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.

SUGGESTED FORMAT

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]).