And Now, I'm Back (After taking the Bar Exams 2013)

It's been a while since I posted something here. I stopped blogging for a while to give time for my review for the 2013 Bar. I thought leaving blogging for a while will free me some time, it did.

From graduation (Thank God I graduated, felt like a lifetime in law school), almost five months of intensive review, studying at least ten hours a day. Jeez, what a year it has been. Now that the Bar exams is over, I have this a big gap to fill in. I am used to studying intensively for five months, and now, there's nothing to do but wait. This feeling sadness, I call this the post-Bar partum depression. I just coined that term. Almost 6,000 took the bar this year, I don't know if anyone else feels this way.

Four to five months from now the results will be released. Am I scared? Yes. Should I show everyone that I'm scared. No. I'll take the Bar only once. I'm glad the Bar is over. End - is a good place to start.

where the future belongs

How to pass, nay, top the bar exams - INQUIRER.net, Philippine News for Filipinos

How to pass, nay, top the bar exams - INQUIRER.net, Philippine News for Filipinos


By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 23:46:00 04/19/2008

Filed Under: Laws, Education
MANILA, Philippines?Last Sunday, I commented on the dismal results of the 2007 bar exams. I said that it was high time the Supreme Court, the Philippine president and the law schools collaborated to produce better lawyers. ?We concur,? chorused many readers. But the more pressing query of law students and reviewees for the 2008 test is ?Can you give us tips on how to pass the 2008 tests?

Having taken the exams eons ago, I felt inadequate answering the question. Besides, I placed only sixth. So I called someone more qualified, 2005 topnotcher Joan de Venecia. In turn, she summoned help from two other numero unos, Arlene Maneja (2002) and Mercedita Ona (2007). Incidentally, Arlene comes from UST, Joan from UP and Mercedita from Ateneo de Manila. Here are their common tips.

Believe that you deserve to take the test. Forget the times you botched up a recitation or failed an exam. You?re past that. Believe that you have been allowed to sit for the bar because you have a fighting chance to pass it. Cultivate composure with that thought. You?ll need it.

Make time for serious self-evaluation. Have an honest assessment of the subjects you are good at, and those you feel you have an inadequate foundation on. If you sincerely believe that you do not have sufficient knowledge of a particular subject, accept it humbly and know that you still have a number of months to study for it. Adjust the number of days devoted to each subject according to the results of your self-assessment. A schedule is recommended to serve as a guide as to how many days you can allot for every subject.

Have a study plan and be realistic about it. At the start of the bar review, set aside all the materials you want to cover?all the books, reviewers and notes for each subject. Make it your guide and pace yourself. People without a plan either underestimate the workload or get swamped with available materials; either way, they don?t finish everything. So too, organize your review materials. Time is of the essence during the bar review. You cannot afford to waste time by looking for misplaced review materials. Maintain eight separate boxes or drawers for each of the subjects. This will help you sort through your materials and decide which to read during your pre-week.

Be realistic about your capabilities. People say they will ?start afresh? during the bar review?study more, play less. That?s nice but it rarely happens. So, in setting a study plan, be kind to yourself. Give yourself time to attend review lectures, to wake up late, to be lazy, to go out and to have fun. The bar test is difficult enough without making yourself sick because of unrealistic expectations.

Do not compare yourself with other reviewees. We all have our own rhythm. Listen to yours. Bar preparation is an individual task. It is ultimately your understanding of the law and its varied nuances, not how many readings you do, or the laws that you memorize verbatim that makes the difference.

Be physically fit. Try to get regular exercise. Eat nourishing meals. Get enough sleep every day. Take vitamins and supplements. Manage your stress. Remember, all your efforts will be wasted when your body bogs down.

Use your time wisely. Sit in a review class or do personal reading? If you know the subject well enough, refresh yourself by attending review classes. If not, read up first. Review classes assume a certain level of knowledge and, without it, you?ll be lost during the discussion and waste valuable time. Know that you still have the pre-week review for all those ?bar tips? that most reviewers give.

Abandon all emotional problems. Inform your family and friends about what you are going through in preparing for and in taking the exam. Ask for their understanding and support. The last thing you need is additional source of stress when preparing for the bar is draining enough. Avoid all distractions. Keep your focus.

Perfect your handwriting and grammar. Bar examiners have to go through thousands of exam booklets, and they are only human. As would any other normal person, they appreciate, and understand more, an answer that is at the very minimum, readable and logical. All three topnotchers have good handwriting, and believe that their passing, nay topping, the bar was in large part due to this. So, practice writing neatly, legibly and fast.

If you are a visual person write down your notes. This exercise will aid your quest for a beautiful penmanship, and help you retain the facts and the law that may be difficult to retrieve as you store more information in your brain bank.

Study smartly. Streamline. Codal provisions, a good reviewer for each subject and updates on jurisprudence should suffice. Master the basics. Understand the substance of the law and how to apply it to given situations. Recall legal provisions during your spare time. Listen to audio codals when you travel.

Ask for updates. Doctrines that you have studied in school may have already been overturned or modified by the Supreme Court or by Congress. Request your bar operations team to include abbreviated facts in the updates, because bar questions are often facts-based.

Pray. Pray. Pray.

A final reminder. There is no shortcut to passing the bar. If you want to pass on the first take, you have to put in the hours, and get yourself in the mood to study. Do not focus on things you cannot control (e.g., bar examiners, kinds of questions). Devote all your energies to studying and positive thinking. Good luck!

Practical Suggestions on How to Pass the Bar

by John P. Virgino

Graduation for law students is so anti-climactic. As if the spartan life we have lived the past four years is not enough, we still have to gear up and march to the Coliseum and wage an even greater battle. The fight is filled with uncertainties, for when we step into the ring, we are on our own. There is no assurance that we would emerge as victorious Gladiators cheered upon by the crowd, or be the next Happy Meal for the royal lions.

The first thing a reviewee must do is to accept this reality. Studying for the bar is one big marshmallow test. It would entail a drastic change in habit and lifestyle. Sacrifices must be made. The sooner you accept it, the better you could cope with the bar exam’s demands and challenges.

As Sun Tzu once said, the art of war includes knowing ones enemy. The number one enemy that a bar reviewee must confront is his fear – of the unknown, the anxiety as to what lies ahead. It is human to fear what one doesn’t understand. So, the main goal of this exercise is to help you understand what the bar is. I hope this article could serve as a map that would aid you conquer the bar’s perilous terrain.

The tips contained herein are not foolproof. Its objective is modest-it is simply to pass the bar. Most of the suggestions contained here were culled from my experience. However, to give it some credibility, I also included the effective habits of fellow reviewees, as well as sound advice from previous topnotchers (Macel and Raj).

I. PREPARING FOR THE BAR

· Set your goals and devise your own strategy on how to do it. When you have no gameplan, you simply conform and follow what the others are doing. This can be dangerous.

· Strategize and maximize. Follow the Pareto principle. Each one is given more or less the same amount of time to study. You must be able to manage your scarce resources. Concentrate on your critical few, the 20% input that would produce 80% of your output.

· Organize your materials ahead of time. Buy the right books and review materials.

Political Law -Outline by Nachura
Labor Law- Azucena’s Everybody’s Labor Code and Alcantara
Civil- Jurado
Taxation -Dan Calica’s Reviewer
Commercial -Miravite/Villanueva
Criminal -Ortega Notes
Remedial -Regalado
Legal Ethics -Aguirre

STARTER KIT

a good and sturdy bookstand
a good lamp, white light
a cubicle made from illustration boards, this would give you privacy and minimize distractions (for student lounge people)
earplugs, to block off noise. It also sends a signal to noisy co-reviewees to shut-up
vitamins/supplements
notebook, index cards
a good supply of highlighters
post-its. The tags can be used to divide the material, which can mark your goal for the day. By breaking the books into parts, it makes reading more manageable.
II. STUDYING FOR THE BAR

· Master the codal provisions. This is a minimum requirement. You can never go wrong with this strategy.

· Manage your time according to the weight of the subject. Not all bar subjects are created equal.

· Prepare a tentative schedule for your bar review.

· Adjust your body clock. Sleep early, start early. Some reviewees even go to the extent of simulating the bar month by making Monday their rest day (since Mondays are brain-dead days during September)

· Have a study buddy so that you can have a benchmark. This would help pace yourself, giving you the extra push to study. Your study buddy must have good study habits. She need not be your girlfriend.

· Learn the art of answering the bar. Study how bar questions are phrased and how it should be answered.

The bar questions are crafted differently from the usual law exams we have. Look at the Suggested Answers published by the UP Law Center. Some questions repeat over time so make sure you get the survey of bar questionnaires to concentrate on areas, which are favorite sources of questions.

· While studying for the bar, take down notes and prepare your mnemonics. Whether we like it or not, the bar is a memory game, and there is no substitute for memorizing.

· Emphasis should be made on the quality of your study time and not the amount of hours you spend studying. Don’t be obsessed with the number of pages you read in a day. The problem with being obsessed with the number of readings is that you are tempted to postpone your understanding of the material since at the back of your mind, you intend to second and third read it any way. Next thing you know, it is already bar month and you’ll be cramming all the information in your head.

· Read to understand and not for the sake of simply reading. Reading can become a mechanical exercise. Most reviewees brag that they have read their bar materials three times. Don’t be alarmed. Some read faster than the others. However, speed-reading should not be done at the expense of comprehension. It is better to have one good reading than have three lousy readings.

· Less is more. One important faux pas to avoid is the temptation of reading a lot of materials. We have this thinking that five months should be spent reading all the materials we can get. Anything less would make us feel guilty and insecure. You may read all you want, but remember that you should not spread yourself too thinly. The truth is, the bar is composed of only 30-40 questions per subject. You must be conscious of the fact that the examiner will grade you solely on the basis of the way you answer these questions. The fact that you read all the commentaries would be immaterial.

· Practice good handwriting skills. This is important. Your exam may be readable to your law professor, considering that he is checking around fifty bluebooks. Imagine multiplying it by one hundred. Bar examiners are humans too. Their patience could be equated as inversely proportional to the number of bluebooks they will be checking. The bar examiner might not have the forebearance to decipher your encrypted hieroglyphics.

III. CAVEATS

· Learn the proper way of highlighting materials, since you will re-read the materials. Highlight only the important words and phrases. Avoid highlighting everything since it defeats the very purpose of highlighting in the first place.

· Read carefully. Don’t accept everything you read as gospel truths. There are a lot of errors that you need to correct in your reading materials. Also, make sure that the law you are reading is udpated.

· Avoid the Maricon virus (the syndrome of photocopying all the materials that one can get his hands into. A tribute to Maricon, the xerox empress) like the plague. The next time someone flash you a candidate material, think twice. Inspect the materials carefully and determine if you truly need it, or whether you will be able to read it. Photocopied materials give us a false sense of security. We justify this photocopying spree saying that you need the option of being able to read it if your time permits it. The danger lies in the fact that if we have too many materials at hand, it might overwhelm us and reduce us into a state of helplessness. It also make us lose our focus. Added to this, is the sense of inadequacy if we failed to finish our ambitious reading list.

· Rumors are just rumors. In the duration of the bar review (even after), be wary of the rumors that would spread. One example is that you will hear that this person is the examiner, so the next step you will take is to ask if he has written a book so that you can buy it. We have this standing theory that the one responsible for spreading these rumors are the book publishers who wants to increase their book sales. Don’t believe these rumors! Be aware of the fact that you are extremely vulnerable as a reviewee. Withhold belief even when the person tells you that the information comes from a “very reliable source.” With respect to knowing who the examiner is, don’t preoccupy yourself with it. As a co-examinee bluntly puts it, in spite of the fact that we know our law professors, we still could not predict the questions that they ask during finals. This is the same case with the bar examiners.

· Hot tips are not hot, even if they are stamped confidential. Tips are overrated and you should take it with a grain of salt. It caters to a reviewee’s psychological need, a placebo. Even if you did not receive any hot tips, don’t despair. You can do good without it, maybe do even better.

IV. RECOMMENDATIONS

· Should you enroll in the bar review classes? Well this is open to debate. I enrolled in the bar review classes because my philosophy then was never to shortchange my review. I told myself that six thousand pesos might spell the difference between passing and failing. Enrolling would preclude me from blaming myself, in the unfortunate event that I fail, thinking that I would have passed if only I enrolled myself. However, I was disappointed with the way review classes were conducted. The lectures could be boring and slow at times. Listening is a skill, it drains too much energy and takes too much of your time. Sometimes, you will be deluded into believing that your understanding mirrors that of the lecturer. Your option would be to just borrow the materials from a co-reviewee and have it photocopied. Take time to sift through the materials and segregate the materials you think might be useful.

· Should you billet yourself in a hotel? I talked to my classmates who did not stay in hotel and they said that they were more relaxed. If you decide to stay home, think of these two things:

a. how to receive the tips (if you still think it is indispensable) b. how to get to the examination area on time (6 am ideal)

If you decide to stay in a hotel, I suggest that you don’t share a room, to minimize movements and distractions.

· Study in the student lounge. Personally, I think my stay there has helped me pass the bar. The daily interaction with fellow reviewees, the jokes, small talks and power naps form part of the student lounge experience. It has definitely kept my head above water in those grueling five months. There, we found humor in our collective misery.

· Exercise. It is normal to gain weight during the bar review. We reviewees use eating as a mechanism to deal with tremendous stress. I eat five full meals during the bar, excluding merienda, because I used eating as an excuse not to study. Don’t worry, you will shed the unwanted fats after the bar review (I did say my advice is not foolproof right?) To deal with this, some co-reviewees enrollled in gym classes. Others simply jog around the academic oval. Exercise improves blood and oxygen circulation, even when it only means a walk to the vendo machine.

· In the duration of the review, pamper yourself once in a while. This is part of stress management, to combat the possibility of burnout.

V. IMPORTANT REMINDERS

· During the night before the exam, try to get a good night rest. Bubble bath. Drink a warm chocolate. · Ask someone (your bar buddy) to prepare your food. Grab a sliced Subway so that you can eat and read in the afternoon within La Salle.

· Be sure to bring all the papers (exam permits, I.D). It is suggested that you buy a transparent envelope and hang it in your neck (with a fancy ID holder) so that you won’t lose these important documents. This is simple but this would be very helpful, as it would reduce unnecessary stress.

· Bring a jacket or umbrella.

· Do not bring your celphones inside La Salle and avoid the hassle of depositing it.

· Go to La Salle early to avoid the madness in the hotel lobby. Know in advance which gate you would have to go to.

· Choose the materials you think you have to read in the interim before the exam. Bring only these materials, lest you want to subject yourself to a panic attack. Remember, you need to relax yourself.

· Never leave your blue book, switching is not a remote possibility

· Bring mineral water, sweets/chocolates as brain boosters during the exam.

VI. DURING THE BAR EXAM

The thirty minutes before the exam after the proctor told us to bring our things in front was really nerve-wracking. Imagine staring blankly at your co-examinees and whispering to yourself that the minutes could have been productively used reading codal provisions.

· After the distribution of the exam questionnaire, scan the questions. Compute the number of questions and allocate your time accordingly. Remember that it is okay if you feel you don’t know the answer. This is the so-called information rush. Breathe and allow things to settle down.

· In answering bar questions, take a deep solid breath and process the question. Be responsive and try to answer clearly and directly. Cite legal provisions or case law to support your arguments. If you don’t know the exact provision, cite a provision that you think comes close. It is rare that you know all the answers to the questions, don’t fret. In the event that you don’t know the answer, guess, but support it with legal arguments or case law. Use good English to mask your ignorance. My experience with the bar is that even if I know the answer, I had difficulty answering because I wanted to craft and formulate my answer in the best possible way. Be conscious of time, make sure to start writing, never mind if it is not as grand as you initially wanted it to be.

· Skip questions you are not sure of the answers. Just be sure to get back to it. Review your answers, make sure you answered all the questions sequentially.

VII. AFTER THE BAR EXAM

· Learn how to compartmentalize. Even if you didn’t do well in one exam, don’t despair. Don’t let the bad feeling affect your performance in the next exam, otherwise it will not only be one subject you will have to worry about. I avoided discussion of answers with fellow reviewees. It is cathartic for some but it is depressing for most. I personally believe that the exercise is very counter-productive. It only depresses us more to know that our classmates were able to eloquently answer the questions we thought was difficult. Often, our co-reviewee approached the legal problem from a different angle and we tend to blame ourselves for failing to see it the way he did.

· Be contented with your answers. You have already submitted your bluebook have already done everything from your end. It is already up to the examiner to appreciate your answers. It is futile to feel sorry. Sure you could have answered better but it is sad that it always seems to dawn only after you submitted the booklet. Remember that given the limited time we had, we may have failed to give our best and most rational answer. The ratio of last clear chance comes to mind.

· Sweet Surrender. Pray and trust in the Lord Almighty. As a friend puts it, the bar is a humbling experience. It is impossible to control all the factors that would guarantee our passing the bar. Undergoing the bar experience makes us more keenly aware of our limitations as human beings. Within the limited time we have, we can only study and prepare so much. I believe that there is more to the bar than the bar questions we need to answer. The real exam is surviving the four Sundays without cracking from the tremendous pressure the whole exercise brings. In the course of writing this article, I may have committed some mistakes, grammatical or otherwise – my apologies. For whatever this article might lack in logic and coherence, is made up for with a genuine and sincere desire to help you hurdle and pass the bar.

Goodluck to all of you!

2 Secrets to Pass the Bar Exam

The panda is your super ego. He is what you always wanted to be.

Philippine Bar Exam: 2012 Remedial Law Syllabus

SYLLABUS 

FOR THE 2012 BAR EXAMINATIONS

REMEDIAL LAW

I. General Principles

A. Concept of remedial law
B. Substantive law as distinguished from remedial law
C. Rule-making power of the Supreme Court
1. Limitations on the rule-making power of the Supreme Court
2. Power of the Supreme Court to amend and suspend procedural rules
D. Nature of Philippine courts
1. Meaning of a court
2. Court as distinguished from a judge
3. Classification of Philippine courts
4. Courts of original and appellate jurisdiction
5. Courts of general and special jurisdiction
6. Constitutional and statutory courts
7. Courts of law and equity
8. Principle of judicial hierarchy
9. Doctrine of non-interference or doctrine of judicial stability

II. Jurisdiction

A. Jurisdiction over the parties
1. How jurisdiction over the plaintiff is acquired
2. How jurisdiction over the defendant is acquired
B. Jurisdiction over the subject matter
1. Meaning of jurisdiction over the subject matter
2. Jurisdiction versus the exercise of jurisdiction
3. Error of jurisdiction as distinguished from error of judgment
4. How jurisdiction is conferred and determined
5. Doctrine of primary jurisdiction
6. Doctrine of adherence of jurisdiction
7. Objections to jurisdiction over the subject matter
8. Effect of estoppel on objections to jurisdiction
C. Jurisdiction over the issues
D. Jurisdiction over the res or property in litigation
E. Jurisdiction of courts
1. Supreme Court
2. Court of Appeals
3. Court of Tax Appeals
4. Sandiganbayan
5. Regional Trial Courts
6. Family Courts
7. Metropolitan Trial Courts/Municipal Trial Courts
8. Shariah Courts
F. Jurisdiction over small claims, cases covered by the Rules on Summary Procedure and barangay conciliation
G. Totality rule

III. Civil Procedure

A. Actions
1. Meaning of ordinary civil actions
2. Meaning of special civil actions
3. Meaning of criminal actions
4. Civil actions versus special proceedings
5. Personal actions and real actions
6. Local and transitory actions
7. Actions in rem, in personam and quasi in rem
B. Cause of action
1. Meaning of cause of action
2. Right of action versus cause of action
3. Failure to state a cause of action
4. Test of the sufficiency of a cause of action
5. Splitting a single cause of action and its effects
6. Joinder and misjoinder of causes of action
C. Parties to civil actions
1. Real parties in interest; indispensable parties;
Representatives as parties; necessary parties; indigent parties; alternative
Defendants
2. Compulsory and permissive joinder of parties
3. Misjoinder and non-joinder of parties
4. Class suit
5. Suits against entities without juridical personality
6. Effect of death of party litigant
D. Venue
1. Venue versus jurisdiction
2. Venue of real actions
3. Venue of personal actions
4. Venue of actions against non-residents
5. When the rules on venue do not apply
6. Effects of stipulations on venue
E. Pleadings
1. Kinds of pleadings a) Complaint b) Answer
(i) Negative defenses
(ii) Negative pregnant
(iii) Affirmative defenses c) Counterclaims
(i) Compulsory counterclaim
(ii) Permissive counterclaim
(iii) Effect on the counterclaim when the complaint is dismissed d) Cross-claims
e) Third (fourth, etc.) party complaints f) Complaint-in-intervention
g) Reply
2. Pleadings allowed in small claim cases and cases covered by the Rules on
Summary Procedure
3. Parts of a pleading a) Caption
b) Signature and address
c) Verification and certification against forum shopping
(i) Requirements of a corporation executing the verification/certification of non-forum shopping
d) Effect of the signature of counsel in a pleading
4. Allegations in a pleading
a) Manner of making allegations
(i) Condition precedent
(ii) Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts
b) Pleading an actionable document c) Specific denials
(i) Effect of failure to make specific denials
(ii) When a specific denial requires an oath
5. Effect of failure to plead
a) Failure to plead defenses and objections
b) Failure to plead a compulsory counterclaim and cross-claim
6. Default
a) When a declaration of default is proper
b) Effect of an order of default
c) Relief from an order of default
d) Effect of a partial default
e) Extent of relief
f) Actions where default are not allowed
7. Filing and service of pleadings a) Payment of docket fees
b) Filing versus service of pleadings c) Periods of filing of pleadings
d) Manner of filing
e) Modes of service
(i) Personal service
(ii) Service by mail
(iii) Substituted service
(iv) Service of judgments, final orders or resolutions
(v) Priorities in modes of service and filing
(vi) When service is deemed complete
(vii) Proof of filing and service
8. Amendment
a) Amendment as a matter of right b) Amendments by leave of court
c) Formal amendment
d) Amendments to conform to or authorize presentation of evidence e) Different from supplemental pleadings
f) Effect of amended pleading
F. Summons
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
2. Voluntary appearance
3. Personal service
4. Substituted service
5. Constructive service (by publication)
a) Service upon a defendant where his identity is unknown or where his whereabouts are unknown
b) Service upon residents temporarily outside the
Philippines
6. Extra-territorial service, when allowed
7. Service upon prisoners and minors
8. Proof of service
G. Motions
1. Motions in general
a) Definition of a motion
b) Motions versus pleadings
c) Contents and form of motions
d) Notice of hearing and hearing of motions e) Omnibus motion rule
f) Litigated and ex parte motions g) Pro-forma motions
2. Motions for bill of particulars
a) Purpose and when applied for b) Actions of the court
c) Compliance with the order and effect of noncompliance
d) Effect on the period to file a responsive pleading
3. Motion to dismiss a) Grounds
b) Resolution of motion
c) Remedies of plaintiff when the complaint is dismissed d) Remedies of the defendant when the motion is denied e) Effect of dismissal of complaint on certain grounds
f) When grounds pleaded as affirmative defenses g) Bar by dismissal
h) Distinguished from demurrer to evidence under Rule 33
H. Dismissal of actions
1. Dismissal upon notice by plaintiff; two-dismissal rule
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
3. Dismissal due to the fault of plaintiff
4. Dismissal of counterclaim, cross-claim or third-party complaint
I. Pre-trial
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; effect of failure to appear
5. Pre-trial brief; effect of failure to appear
6. Distinction between pre-trial in civil case and pre-trial in criminal case
7. Alternative Dispute Resolution (ADR)
J. Intervention
1. Requisites for intervention
2. Time to intervene
3. Remedy for the denial of motion to intervene
K. Subpoena
1. Subpoena duces tecum
2. Subpoena ad testificandum
3. Service of subpoena
4. Compelling attendance of witnesses; contempt
5. Quashing of subpoena
L. Modes of discovery
1. Depositions pending action; depositions before action or pending appeal a) Meaning of deposition
b) Uses; scope of examination
c) When may objections to admissibility be made
d) When may taking of deposition be terminated or its scope limited
2. Written interrogatories to adverse parties a) Consequences of refusal to answer
b) Effect of failure to serve written interrogatories
3. Request for admission
a) Implied admission by adverse party
b) Consequences of failure to answer request for admission c) Effect of admission
d) Effect of failure to file and serve request for admission
4. Production or inspection of documents or things
5. Physical and mental examination of persons
6. Consequences of refusal to comply with modes of discovery
M. Trial
1. Adjournments and postponements
2. Requisites of motion to postpone trial a) For absence of evidence
b) For illness of party or counsel
3. Agreed statement of facts
4. Order of trial; reversal of order
5. Consolidation or severance of hearing or trial
6. Delegation of reception of evidence
7. Trial by commissioners
a) Reference by consent or ordered on motion b) Powers of the commissioner
c) Commissioner’s report; notice to parties and hearing on the report
N. Demurrer to evidence
1. Ground
2. Effect of denial
3. Effect of grant
4. Waiver of right to present evidence
5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case
O. Judgments and final orders
1. Judgment without trial
2. Contents of a judgment
3. Judgment on the pleadings
4. Summary judgments
a) For the claimant
b) For the defendant
c) When the case not fully adjudicated d) Affidavits and attachments
5. Judgment on the pleadings versus summary judgments
6. Rendition of judgments and final orders
7. Entry of judgment and final order
P. Post-judgment remedies
1. Motion for new trial or reconsideration a) Grounds
b) When to file
c) Denial of the motion; effect d) Grant of the motion; effect
e) Remedy when motion is denied, fresh 15-day period rule
2. Appeals in general
a) Judgments and final orders subject to appeal b) Matters not appealable
c) Remedy against judgments and orders which are not appealable d) Modes of appeal
(i) Ordinary appeal
(ii) Petition for review
(iii) Petition for review on certiorari e) Issues to be raised on appeal
f) Period of appeal
g) Perfection of appeal
h) Appeal from judgments or final orders of the MTC
i) Appeal from judgments or final orders of the RTC
j) Appeal from judgments or final orders of the CA
k) Appeal from judgments or final orders of the CTA
l). Review of final judgments or final orders of the COA
m) Review of final judgments or final orders of the Comelec n) Review of final judgments or final orders of the CSC
o) Review of final judgments or final orders of the Ombudsman p) Review of final judgments or final orders of the NLRC
q) Review of final judgments or final orders of quasi-judicial agencies
3. Relief from judgments, orders and other proceedings a) Grounds for availing of the remedy
b) Time to file petition c) Contents of petition
4. Annulment of judgments or final orders and resolutions a) Grounds for annulment
b) Period to file action
c) Effects of judgment of annulment
5. Collateral attack of judgments
Q. Execution, satisfaction and effect of judgments
1. Difference between finality of judgment for purposes of appeal; for purposes of execution
2. When execution shall issue
a) Execution as a matter of right b) Discretionary execution
3. How a judgment is executed
a) Execution by motion or by independent action b) Issuance and contents of a writ of execution
c) Execution of judgments for money
d) Execution of judgments for specific acts e) Execution of special judgments
f) Effect of levy on third persons
4. Properties exempt from execution
5. Proceedings where property is claimed by third persons
a) In relation to third party claim in attachment and replevin
6. Rules on redemption
7. Examination of judgment obligor when judgment is unsatisfied
8. Examination of obligor of judgment obligor
9. Effect of judgment or final orders
10. Enforcement and effect of foreign judgments or final orders
R. Provisional remedies
1. Nature of provisional remedies
2. Jurisdiction over provisional remedies
3. Preliminary attachment
a) Grounds for issuance of writ of attachment b) Requisites
c) Issuance and contents of order of attachment; affidavit and bond
d) Rule on prior or contemporaneous service of summons
e) Manner of attaching real and personal property; when property attached is claimed by third person
f) Discharge of attachment and the counter-bond
g) Satisfaction of judgment out of property attached
4. Preliminary injunction
a) Definitions and differences: preliminary injunction and temporary restraining order
b) Requisites
c) Kinds of injunction
d) When writ may be issued
e) Grounds for issuance of preliminary injunction
f) Grounds for objection to, or for the dissolution of injunction or restraining order
g) Duration of TRO
h) In relation to R.A. 8975, ban on issuance of TRO or writ of injunction in cases involving government infrastructure projects
i) Rule on prior or contemporaneous service of summons in relation to attachment
5. Receivership
a) Cases when receiver may be appointed b) Requisites
c) Requirements before issuance of an order d) General powers of a receiver
e) Two kinds of bonds
f) Termination of receivership
6. Replevin
a) When may writ be issued b) Requisites
c) Affidavit and bond; redelivery bond
d) Sheriff’s duty in the implementation of the writ; when property is claimed by third party
S. Special civil actions
1. Nature of special civil actions
2. Ordinary civil actions versus special civil actions
3. Jurisdiction and venue
4. Interpleader
a) Requisites for interpleader b) When to file
5. Declaratory reliefs and similar remedies a) Who may file the action
b) Requisites of action for declaratory relief
c) When court may refuse to make judicial declaration d) Conversion to ordinary action
e) Proceedings considered as similar remedies
(i) Reformation of an instrument
(ii) Consolidation of ownership
(iii) Quieting of title to real property
6. Review of judgments and final orders or resolution of the Comelec and COA
a) Application of Rule 65 under Rule 64
b) Distinction in the application of Rule 65 to judgments of the Comelec and COA and the application of Rule 65 to other tribunals, persons and officers
7. Certiorari, prohibition and mandamus a) Definitions and distinctions
(i) Certiorari distinguished from appeal by certiorari
(ii) Prohibition and mandamus distinguished from injunction b) Requisites
c) When petition for certiorari, prohibition and mandamus is proper d) Injunctive relief
e) Exceptions to filing of motion for reconsideration before filing petition f) Reliefs petitioner is entitled to
g) Actions/omissions of MTC/RTC in election cases
h) When and where to file petition
i) Effects of filing of an unmeritorious petition
8. Quo warranto
a) Distinguish from quo warranto in the omnibus election code b) When government commence an action against individuals
c) When individual may commence an action d) Judgment in quo warranto action
e) Rights of a person adjudged entitled to public office
9. Expropriation
a) Matters to allege in complaint for expropriation b) Two stages in every action for expropriation
c) When plaintiff can immediately enter into possession of the real property, in relation to R.A. 8974
d) New system of immediate payment of initial just compensation e) Defenses and objections
f) Order of expropriation
g) Ascertainment of just compensation
h) Appointment of commissioners; commissioner’s report; court action upon commissioner’s report
i) Rights of plaintiff upon judgment and payment
j) Effect of recording of judgment
10. Foreclosure of real estate mortgage
a) Judgment on foreclosure for payment or sale b) Sale of mortgaged property; effect
c) Disposition of proceeds of sale d) Deficiency judgment
(i) Instances when court cannot render deficiency judgment
e) Judicial foreclosure versus extrajudicial foreclosure f) Equity of redemption versus right of redemption
11. Partition
a) Who may file complaint; who should be made defendants b) Matters to allege in the complaint for partition
c) Two stages in every action for partition
d) Order of partition and partition by agreement
e) Partition by commissioners; appointment of commissioners, commissioner’s report; court action upon commissioner’s report f) Judgment and its effects
g) Partition of personal property h) Prescription of action
12. Forcible entry and unlawful detainer
a) Definitions and distinction
b) Distinguished from accion publiciana and accion reivindicatoria c) How to determine jurisdiction in accion publiciana and accion reivindicatoria
d) Who may institute the action and when; against whom the action may be maintained
e) Pleadings allowed
f) Action on the complaint
g) When demand is necessary
h) Preliminary injunction and preliminary mandatory injunction i) Resolving defense of ownership
j) How to stay the immediate execution of judgment k) Summary procedure, prohibited pleadings
13. Contempt
a) Kinds of contempt
b) Purpose and nature of each
c) Remedy against direct contempt; penalty
d) Remedy against indirect contempt; penalty e) How contempt proceedings are commenced f) Acts deemed punishable as indirect contempt
g) When imprisonment shall be imposed h) Contempt against quasi-judicial bodies

IV. Special Proceedings

A. Settlement of estate of deceased persons, venue and process
1. Which court has jurisdiction
2. Venue in judicial settlement of estate
3. Extent of jurisdiction of probate court
4. Powers and duties of probate court
B. Summary settlement of estates
1. Extrajudicial settlement by agreement between heirs, when allowed
2. Two-year prescriptive period
3. Affidavit of self-adjudication by sole heir
4. Summary settlement of estates of small value, when allowed
5. Remedies of aggrieved parties after extra-judicial settlement of estate
C. Production and probate of will
1. Nature of probate proceeding
2. Who may petition for probate; persons entitled to notice
D. Allowance or disallowance of will
1. Contents of petition for allowance of will
2. Grounds for disallowing a will
3. Reprobate
a) Requisites before a will proved abroad will be allowed in the Philippines
4. Effects of probate
E. Letters testamentary and of administration
1. When and to whom letters of administration granted
2. Order of preference
3. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration
4. Powers and duties of executors and administrators; restrictions on the powers
5. Appointment of special administrator
6. Grounds for removal of administrator
F. Claims against the estate
1. Time within which claims shall be filed; exceptions
2. Statute of non-claims
3. Claim of executor or administrator against the estate
4. Payment of debts
G. Actions by and against executors and administrators
1. Actions that may be brought against executors and administrators
2. Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the deceased
H. Distribution and partition
1. Liquidation
2. Project of partition
3. Remedy of an heir entitled to residue but not given his share
4. Instances when probate court may issue writ of execution
I. Trustees
1. Distinguished from executor/administrator
2. Conditions of the bond
3. Requisites for the removal and resignation of a trustee
4. Grounds for removal and resignation of a trustee
5. Extent of authority of trustee
J. Escheat
1. When to file
2. Requisites for filing of petition
3. Remedy of respondent against petition; period for filing a claim
K. Guardianship
1. General powers and duties of guardians
2. Conditions of the bond of the guardian
3. Rule on guardianship over minor
L. Adoption
1. Distinguish domestic adoption from inter-country adoption
2. Domestic Adoption Act
a) Effects of adoption
b) Instances when adoption may be rescinded c) Effects of rescission of adoption
3. Inter-country adoption a) When allowed
b) Functions of the RTC
c) “Best interest of the minor” standard
M. Writ of habeas corpus
1. Contents of the petition
2. Contents of the return
3. Distinguish peremptory writ from preliminary citation
4. When not proper/applicable
5. When writ disallowed/discharged
6. Distinguish from writ of amparo and habeas data
7. Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC)
N. Writ of Amparo (A.M. No. 07-9-12-SC)
1. Coverage
2. Distinguish from habeas corpus and habeas data
3. Differences between amparo and search warrant
4. Who may file
5. Contents of return
6. Effects of failure to file return
7. Omnibus waiver rule
8. Procedure for hearing
9. Institution of separate action
10. Effect of filing of a criminal action
11. Consolidation
12. Interim reliefs available to petitioner and respondent
13. Quantum of proof in application for issuance of writ of amparo
O. Writ of Habeas Data (A.M. No. 08-1-16-SC)
1. Scope of writ
2. Availability of writ
3. Distinguish from habeas corpus and amparo
4. Who may file
5. Contents of the petition
6. Contents of return
7. Instances when petition be heard in chambers
8. Consolidation
9. Effect of filing of a criminal action
10. Institution of separate action
11. Quantum of proof in application for issuance of writ of amparo
P. Change of name
1. Differences under Rule 103, R.A. 9048 and Rule 108
2. Grounds for change of name
Q. Absentees
1. Purpose of the rule
2. Who may file; when to file
R. Cancellation or correction of entries in the civil registry
1. Entries subject to cancellation or correction under Rule 108, in relation to R.A.
9048
S. Appeals in special proceeding
1. Judgments and orders for which appeal may be taken
2. When to appeal
3. Modes of appeal
4. Rule on advance distribution

V. Criminal Procedure

A. General matters
1. Distinguish jurisdiction over subject matter from jurisdiction over person of the accused
2. Requisites for exercise of criminal jurisdiction
3. Jurisdiction of criminal courts
4. When injunction may be issued to restrain criminal prosecution
B. Prosecution of offenses
1. Criminal actions, how instituted
2. Who may file them, crimes that cannot be prosecuted de officio
3. Criminal actions, when enjoined
4. Control of prosecution
5. Sufficiency of complaint or information
6. Designation of offense
7. Cause of the accusation
8. Duplicity of the offense; exception
9. Amendment or substitution of complaint or information
10. Venue of criminal actions
11. Intervention of offended party
C. Prosecution of civil action
1. Rule on implied institution of civil action with criminal action
2. When civil action may proceed independently
3. When separate civil action is suspended
4. Effect of the death of accused or convict on civil action
5. Prejudicial question
6. Rule on filing fees in civil action deemed instituted with the criminal action
D. Preliminary investigation
1. Nature of right
2. Purposes of preliminary investigation
3. Who may conduct determination of existence of probable cause
4. Resolution of investigation prosecutor
5. Review
6. When warrant of arrest may issue
7. Cases not requiring a preliminary investigation
8. Remedies of accused if there was no preliminary investigation
9. Inquest
E. Arrest
1. Arrest, how made
2. Arrest without warrant, when lawful
3. Method of arrest
a) By officer with warrant
b) By officer without warrant c) By private person
4. Requisites of a valid warrant of arrest
5. Determination of probable cause for issuance of warrant of arrest
6. Distinguish probable cause of fiscal from that of a judge
F. Bail
1. Nature
2. When a matter of right; exceptions
3. When a matter of discretion
4. Hearing of application for bail in capital offenses
5. Guidelines in fixing amount of bail
6. Bail when not required
7. Increase or reduction of bail
8. Forfeiture and cancellation of bail
9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation
10. Hold departure order & bureau of immigration watch list
G. Rights of the accused
1. Rights of accused at the trial
2. Rights of persons under custodial investigation
H. Arraignment and plea
1. Arraignment and plea, how made
2. When should plea of not guilty be entered
3. When may accused enter a plea of guilty to a lesser offense
4. Accused plead guilty to capital offense, what the court should do
5. Searching inquiry
6. Improvident plea
7. Grounds for suspension of arraignment
I. Motion to quash
1. Grounds
2. Distinguish from demurrer to evidence
3. Effects of sustaining the motion to quash
4. Exception to the rule that sustaining the motion is not a bar to another prosecution
5. Double jeopardy
6. Provisional dismissal
J. Pre-trial
1. Matters to be considered during pre-trial
2. What the court should do when prosecution and offended party agree to the plea offered by the accused
3. Pre-trial agreement
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for court annexed mediation and judicial dispute resolution
K. Trial
1. Instances when presence of accused is required by law
2. Requisite before trial can be suspended on account of absence of witness
3. Trial in absentia
4. Remedy when accused is not brought to trial within the prescribed period
5. Requisites for discharge of accused to become a state witness
6. Effects of discharge of accused as state witness
7. Demurrer to evidence
L. Judgment
1. Requisites of a judgment
2. Contents of judgment
3. Promulgation of judgment; instances of promulgation of judgment in absentia
4. When does judgment become final (four instances)
M. New trial or reconsideration
1. Grounds for new trial
2. Grounds for reconsideration
3. Requisites before a new trial may be granted on ground of newly discovered evidence
4. Effects of granting a new trial or reconsideration
5. Application of Neypes doctrine in criminal cases
N. Appeal
1. Effect of an appeal
2. Where to appeal
3. How appeal taken
4. Effect of appeal by any of several accused
5. Grounds for dismissal of appeal
O. Search and seizure
1. Nature of search warrant
2. Distinguish from warrant of arrest
3. Application for search warrant, where filed
4. Probable cause
5. Personal examination by judge of the applicant and witnesses
6. Particularity of place to be searched and things to be seized
7. Personal property to be seized
8. Exceptions to search warrant requirement a) Search incidental to lawful arrest
b) Consented search
c) Search of moving vehicle
d) Check points; body checks in airport e) Plain view situation
f) Stop and frisk situation
g) Enforcement of custom laws
h) Remedies from unlawful search and seizure
P. Provisional remedies
1. Nature
2. Kinds of provisional remedies

VI. Evidence

A. General principles
1. Concept of evidence
2. Scope of the Rules on Evidence
3. Evidence in civil cases versus evidence in criminal cases
4. Proof versus evidence
5. Factum probans versus factum probandum
6. Admissibility of evidence
a) Requisites for admissibility of evidence
b) Relevance of evidence and collateral matters c) Multiple admissibility
d) Conditional admissibility e) Curative admissibility
f) Direct and circumstantial evidence
g) Positive and negative evidence
h) Competent and credible evidence
7. Burden of proof and burden of evidence
8. Presumptions
a) Conclusive presumptions b) Disputable presumptions
9. Liberal construction of the rules of evidence
10. Quantum of evidence (weight and sufficiency of evidence)
a) Proof beyond reasonable doubt b) Preponderance of evidence
c) Substantial evidence
d) Clear and convincing evidence
B. Judicial notice and judicial admissions
1. What need not be proved
2. Matters of judicial notice a) Mandatory
b) Discretionary
3. Judicial admissions
a) Effect of judicial admissions
b) How judicial admissions may be contradicted
4. Judicial notice of foreign laws, law of nations and municipal ordinance
C. Object (real) evidence
1. Nature of object evidence
2. Requisites for admissibility
3. Categories of object evidence
4. Demonstrative evidence
5. View of an object or scene
6. Chain of custody in relation to Section 21 of the Comprehensive Dangerous Drugs
Act of 2002
7. Rule on DNA Evidence (A.M. No. 06-11-5-SC)
a) Meaning of DNA
b) Applicable for DNA testing order
c) Post-conviction DNA testing; remedy
d) Assessment of probative value of DNA evidence and admissibility e) Rules on evaluation of reliability of the DNA testing methodology
D. Documentary evidence
1. Meaning of documentary evidence
2. Requisites for admissibility
3. Best Evidence Rule
a) Meaning of the rule b) When applicable
c) Meaning of original
d) Requisites for introduction of secondary evidence
4. Rules on Electronic Evidence (A.M. No. 01-7-01-SC)
a) Meaning of electronic evidence; electronic data massage
b) Probative value of electronic documents or evidentiary weight; method of proof c) Authentication of electronic documents and electronic signatures
d) Electronic documents and the hearsay rule
e) Audio, photographic, video and ephemeral evidence
5. Parol Evidence Rule
a) Application of the parol evidence rule
b) When parol evidence can be introduced
c) Distinctions between the best evidence rule and parol evidence rule
6. Authentication and proof of documents a) Meaning of authentication
b) Public and private documents
c) When a private writing requires authentication; proof of a private writing d) When evidence of authenticity of a private writing is not required (ancient
documents)
e) How to prove genuineness of a handwriting
f) Public documents as evidence; proof of official record
g) Attestation of a copy
h) Public record of a public document i) Proof of lack of record
j) How a judicial record is impeached k) Proof of notarial documents
l) How to explain alterations in a document
m) Documentary evidence in an unofficial language
E. Testimonial evidence
1. Qualifications of a witness
2. Competency versus credibility of a witness
3. Disqualifications of witnesses
a) Disqualification by reason of mental capacity or immaturity b) Disqualification by reason of marriage
c) Disqualification by reason of death or insanity of adverse party d) Disqualification by reason of privileged communications
(i) Husband and wife (ii) Attorney and client (iii) Physician and patient (iv). Priest and penitent
(v). Public officers
(vi). Parental and filial privilege rule
4. Examination of a witness
a) Rights and obligations of a witness
b) Order in the examination of an individual witness
(i) Direct examination
(ii) Cross examination
(iii) Re-direct examination (iv) Re-cross examination (v) Recalling the witness
c) Leading and misleading questions
d) Methods of impeachment of adverse party’s witness
e) How the witness is impeached by evidence of inconsistent statements (laying the predicate)
f) Evidence of the good character of a witness
5. Admissions and confessions a) Res inter alios actarule b) Admission by a party
c) Admission by a third party
d) Admission by a co-partner or agent e) Admission by a conspirator
f) Admission by privies g) Admission by silence h) Confessions
i) Similar acts as evidence
6. Hearsay Rule
a) Meaning of hearsay
b) Reason for exclusion of hearsay evidence c) Exceptions to the hearsay rule
(i) Dying declaration
(ii) Declaration against interest
(iii) Act or declaration about pedigree
(iv) Family reputation or tradition regarding pedigree
(v) Common reputation
(vi) Part of the res gestae
(vii) Entries in the course of business
(viii) Entries in official records
(ix) Commercial lists and the like
(x) Learned treaties
(xi) Testimony or deposition at a former trial
7. Opinion rule
a) Opinion of expert witness
b) Opinion of ordinary witness
8. Character evidence a) Criminal cases b) Civil cases
9. Rule on Examination of a Child witness (A.M. No. 004-07-SC)
a) Applicability of the rule
b) Meaning of “child witness”
c) Competency of a child witness d) Examination of a child witness
e) Live-link TV testimony of a child witness f) Videotaped deposition of a child witness
g) Hearsay exception in child abuse cases h) Sexual abuse shield rule
i) Protective orders
F. Offer and objection
1. Offer of evidence
2. When to make an offer
3. Objection
4. Repetition of an objection
5. Ruling
6. Striking out of an answer
7. Tender of excluded evidence
G. Supreme Court rulings as of January 31, 2012

VII. Revised Rules on Summary Procedure

A. Cases covered by the rule
B. Effect of failure to answer
C. Preliminary conference and appearances of parties

VIII. Katarungang Pambarangay

A. Cases covered
B. Subject matter for amicable settlement
C. Venue
D. When parties may directly go to court
E. Execution
F. Repudiation

IX. Rule of Procedure for Small Claims Cases (A.M. No. 08-8-7-SC)

A. Scope and applicability of the rule
B. Commencement of small claims action; response
C. Prohibited pleadings and motions
D. Appearances
E. Hearing; duty of the judge
F. Finality of judgment

X. Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC)

A. Scope and applicability of the rule
B. Civil procedure
1. Prohibition against temporary restraining order and preliminary injunction
2. Pre-trial conference; consent decree
3. Prohibited pleadings and motions
4. Temporary environmental protection order (TEPO)
5. Judgment and execution; reliefs in a citizen’s suit
6. Permanent environmental protection order; writ of continuing mandamus
7. Strategic lawsuit against public participation
C. Special proceedings
1. Writ of Kalikasan
2. Prohibited pleadings and motions
3. Discovery measures
4. Writ of continuing mandamus
D. Criminal procedure
1. Who may file
2. Institution of criminal and civil action
3. Arrest without warrant, when valid
4. Procedure in the custody and disposition of seized items
5. Bail
6. Arraignment and plea
7. Pre-trial
8. Subsidiary liabilities
E. Evidence
1. Precautionary principle
2. Documentary evidence

INCLUDE: Pertinent Supreme Court decisions promulgated as of January 31, 2012.

IMPORTANT NOTE: This bar coverage description is not intended and should not be used by law schools as a syllabus or course outline in the covered subjects. It has been drawn up for the limited purpose of ensuring that candidates reviewing for the bar examinations are guided on what basic and minimum amounts of laws, doctrines, and principles they need to know and be able to use correctly before they can be licensed to practice law. More is required for excellent and distinguished work as members of the Bar.

DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS

DEAN RIANO EVIDENCE FINALS REVIEWER and  LAST MINUTE TIPS

by  Bimby and Klowee

1.       Memorize Falsus in uno falsus in omnibus

Falsus in uno vs. Falsus in Omnibus means “false in one thing, false in everything”

*interpretation is not strict

*While the witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded. It is not a positive rule of law. The witness must have a conscious and deliberate intention to falsify a material point.

2.       Distinguish Factum Probans vs. Factum Probandum

Factum Probandum	Factum Probans
Ultimate Facts	Material evidencing the proposition
Hypothetical	Existent.

a.       Factum probandum is the fact or proposition to be established

b.      Factum Probans the facts or material evidencing the fact or proposition to be established

*Example: If P claims to have been injured by the negligence of D who denies having been negligent, the negligence of D and the causal connection between such negligence, and the injuries of P taken as a whole = Factum Probandum

The evidence offered by P, whether it be object, documentary or testimonial, constitute the materials to prove the liability of D. The totality of the evidence to prove the liability refers to the Factum Probans

*If the defendant admits his negligence in his answer to the complaint, there is no more need to prove negligence. Hence, negligence ceases to be a factum probandum in this case.

*if the factum probandum “signifies the fact or proposition to be established,” then matters of 1) judicial notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the factum probandum of a particular case, because such matters need not be established or proven.

*Factum probandum in civil case refers to the elements of a cause of action from the point of view of the plaintiff and the elements of the defense from the point of view of the defendant.

*In criminal cases factum probandum includes all matters that the prosecution must prove beyond reasonable doubt in order to justify a conviction.

3.       Can Rules of Evidence be used in non-judicial proceedings?

The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings (Sec. 1 Rule 128)

*Sec.4. In what cases not applicable. – These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceeding, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, labor cases

4.       Best Evidence Rule (Original document rule) (primary evidence rule)

a.       Concept

                                                               i.      Original of the document must be produced; When the subject matter of the inquiry is the contents of a document , no evidence shall be admissible other than the original document itself,

b.      Exceptions to the rule

                                                               i.      When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

                                                             ii.      When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

                                                            iii.      When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole

                                                           iv.      When the original is a public record in the custody of a public officer or is recorded in a public office.

*Involves only the contents of a writing. The rule cannot be invoked unless the contents of a writing is the subject of judicial inquiry, in such case; the best evidence is the original writing itself.

*Where the issue is the execution or existence of the document or the circumstances surrounding its execution, the best evidence rule does not apply and the testimonial evidence is admissible.

*Where the issue is only as to whether such document was actually executed, or exists, or on the circumstance relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible.

*The best evidence rule applies only when the purpose is to establish the terms of a writing. When the evidence introduced concerns some external facet about a writing like its existence, execution or delivery without reference to its terms, the rule cannot be invoked.  The subject of inquiry under the best evidence rule it the CONTENTS of a writing, NOT THE TRUTH thereof. Where the truth is in issue, the hearsay rule will now be involved.

c.       Illustrative applications

                                                               i.      1994 Bar At the trial of ace for the violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked bills used in the “buy-bust” operation. Ace objects to the introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in lieu of the original is the photocopy admissible in evidence?

1.       Yes, the photocopy of the bills being object evidence is admissible in evidence without violation of the best evidence rule. The rule applies only to documentary evidence and not to object evidence.

*The reason for the best evidence rule is the prevention and detection of fraud.

*The best evidence rule may be waived if not raised in the trial

*If the original be presented in evidence

                1) Find a legal excuse for failure 2) present secondary evidence

If secondary evidence is to be offered in evidence, like a copy, the proponent has to lay the basis for the admission of the copy of the document.

Excuses for not presenting the original

1.       When the original has been lost or destroyed or cannot be produced in court, without bad faith on the part of the offeror;

2.       When the original is in the custody or under the control of the party against whom the evidence is offered and the latter fails to produce it after reasonable notice

3.       When the original consists of numerous accounts or other documents cannot be examined in court without great loss of time and the fact sought to be establish is only the general result of the whole; and

4.       When the original is a public record in the custody of a public officer or is recorded in a public office.

*How to lay the basis for presenting secondary evidence:

a) The offeror must prove the execution and existence of the original document;

b) The offeror must show the cause of its unavailability

                Loss, destruction, or unavailability

c) The offeror must show that the unavailability was not due to his bad faith

Correct order of proof is as follows Existence, execution, loss, and contents.

Due execution and authenticity of the document must be proved either: a) by anyone who saw the document executed or written, or by evidence of the genuiness of the signature or handwriting of the maker.

When original is in the custody or control of the adverse party:

Laying the basis requires:

a.       The original exists.

b.      That the said document is under the custody or control of the adverse party;

c.       That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document

d.      That the adverse party failed to produce the original document despite the reasonable notice.

*Waiver: Failure to object to the parole evidence presented by the adverse party operates as a waiver of the protection of the rule.

* The loan may be proved by the photocopy as long as A lays the basis for the introduction of secondary evidence, to wit: a) the existence and due execution of the original, and b) the loss of the original without bad faith on his part. (Sec. 5, Rule 130)

Distinction between Best Evidence and parol Evidence

Best Evidence Rule	Parol Evidence Rule
1.       Establishes a preference for the original document over secondary evidence thereof.	Presupposes the original is available
2.       Precludes the admission of secondary evidence if the original document is available.	Precludes the admission of other evidence to prove the terms of a document other than the contents of the document itself for the purpose of varying the terms of the writing.
3.       Can be invoked by any litigant to an action whether or not said litigant is a party to the document involved.	Can be invoked only by the parties to the document and their successors in interest.
Applies to all forms of writing	Applies only to written contracts and wills.

5.       Define Parol Evidence –

*Applies to agreements and will. Parol evidence means offering extrinsic  evidence that would modify, explain or add to the terms of the written  agreement. BUT it is allowed if any of the following are shown:

a.       An intrinsic ambiguity, mistake, or imperfection in the written agreement;

b.      The failure of the written agreement to express the true intent and agreement of the parties;

c.       The validity of the written agreement;

d.      The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

And only if it is put in issue in the pleadings.

*The rule applies ONLY to contracts which the parties have decided to set forth in writing. When n the terms of an agreement is merely oral, the parol evidence rule should not be applied.

*Parol evidence does not apply in oral agreements, public writing, private writing, express trust (although parol evidence applies to wills.

6.       Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable Originals (Sec 5)

*Showing that the original document is in the custody or under the control of the adverse party does not ipso facto authorize the introduction of secondary evidence to prove its contents. The party who seeks to present secondary evidence must lay a basis for its introduction.

Laying the basis:

1)      That the original exists;

2)      That the document is under the custody or control of the adverse party;

3)      That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document;

4)      That the adverse party failed to produce the original document despite the reasonable notice.

How to notify: motion for the production of the original or by subpoena duces tecum, provided that the party in custody has sufficient time to produce it.

After the foundational requirement for the introduction of secondary evidence have been complied with, secondarily evidence may now be presented as in the case of loss. This mean that the contents of the document may now be proven by

 a copy of the document à a recital of its contents in some authentic document à

By testimony of a witness in the order stated (Sec. 5 Rule 130)

7.       Testimonial evidence topics not found in Rule 130

a.       132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of witnesses

                                                               i.      Are the rights of the accused violated in case of compulsory HIV testing? à No. There is no testimonial compulsion involved by extracting blood from the accused for testing purposes. Thus, there is no violation of the right to privacy and the right to be presumed innocent.

                                                             ii.      Should DNA evidence be admitted? à Yes. The right against self incrimination applies only to testimonial evidence. Extracting blood samples and cutting strands of hair do not involve testimonial compulsion but purely mechanical acts which neither requires  discretion or reasoning.  (Tijing v. Court of Appeals.

                                                            iii.      The right against self incrimination does not apply to physical and mechanical act.  It applies only to testimonial compulsion which is not the case under the facts.

                                                           iv.      Degrading questions à although degrading a witness must answer the question if the degrading answer a) is the very fact in issue; or b) refers to a fact from which the fact in issue would be presumed. (Rule 132)

8.       What are the elements of a dying declaration? #3 exam

*Must comply with the following foundational elements

                1. That the declaration is one made by a dying person;

                2. That the declaration was made by said dying person under the consciousness              

                    Of impending death

                3. That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else;

                4. That the declaration is offered in a case where the declarant’s death is the subject of inquiry;

                5. The declarant is competent as a witness had he survived;

                                                6.  The declarant should have died.

Note: must refer to the death of the declarant, not merely injuries.

*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES GESTAE.

*The former rule embodied in Supreme Court decisions, which declared that a dying declaration is offered in a criminal case for homicide, murder, or parricide wherein the declarant is the victim, no longer holds true. As amended

                Parts of the Res Gestae

                Literally means “things done”. Res Gestae is the startling event of which the spontaneous statement is only a part of. 

               

                The use of res Gestae in the Philippines is limited to two matters:

1)      Spontaneous statements

a.       That there is a startling occurrence  taking place;

b.      That statements were made while the event is taking place or immediately prior to or subsequent thereto;

c.       The statements were made before the declarant had the time to contrive or devise a falsehood

d.      That the statement relates to the circumstances of the startling even or occurrence, or that the statements must concern the occurrence in question and its immediate attending circumstance.

2)      Verbal acts – Statement accompanying an equivocal act material to the issue, and giving it a legal significance – a conduct that is equivocal or ambiguous, one which in itself does not signify anything when taken separately (legal significance) To be admissible, the following requisites must be present:

a.       The principal act to be characterized must be equivocal (clear need not be explained);

b.      The equivocal act must be material to the issue;

c.       The statement must accompany the equivocal act;

d.      The statement gives a legal significance to the equivocal act

9.       Exceptions to the hearsay rule, are all hearsay, but are admissible Sec. 36 of Rule 130 ex. Which of the following  is hearsay?

Hearsay                                                             vs.	Opinion
Hearsay evidence is one that is not based on one’s personal knowledge of others to prove the truth of the matter asserted in an out-or-court	An opinion evidence is based on the personal knowledge or personal conclusion of the witness based on his skill, training, or experience.

Examples of Non-hearsay evidence

a.       A statement having probative worth simply by virtue of the fact that it was uttered, if relevant to a material fact inissue is not hearsay and is generally admissible. Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, then the statement is not hearsay. For example, a statement that is offered to show its patent falsity, so as to suggest the defendant’s consciousness of guilt, is NOT hearsay.

b.      A statement relating to the state of mind of the declarant and statement relating to the state of mind of the listener, these are not hearsay, but merely constitute circumstantial evidence of an assertion.  Ex. To prove by inference the testator’s state of mind, “I am  Stalin, Roosevelt, Saddam Hussein, rolled into one”

c.       A threat against a witness may be offered in evidence to show its impact on the witness and where the reasonableness of a person’s conduct is an issue, and out of court declaration may be offered to explain the person's reactions to the declaration.

d.      Words offered to prove  hearer’s reaction are admissible when they are offered to show their effect on one whose conduct is at issue.

Independent relevant statement: “The newspaper clipping is admissible as non-hearsay if offered for the purpose of showing that the statement of X was made to a reporter regardless of the truth or falsityof the statement. If it is relevant, it is admissible as an independent relevant statement (non hearsay) It would be hearsay if offered to prove the truth that x was the robber.

Exception to the Hearsay Rule:

1.       Dying Declarations

2.       Declaration against interest

3.       Act or declaration about pedigree

4.       Family reputation or tradition regarding pedigree

5.       Common reputation

6.       Parts of the res Gestae

7.       Entries in the course of business

8.       Entries in official records

9.       Commercial lists

10.   Learned treatises

11.   Testimony or deposition at a former trial

Dying Declarations

*must be impending, near, and certain.

Declaration about pedigree

*The declaration about pedigree may be received in evidence if the relationship is shown by evidence other than the declaration. The word “pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It also embraces facts of family history intimately connected with pedigree.

Entries in the course of business.

Elements:

a)      Entries were made at, or near the time of the transactions

b)      Such entries were made in the regular course of business

c)       The person making the entries was in a position to know the facts stated in the entries.

d)      The person making the entries did so in a position to know the facts stated in the entries

e)      The person making the entries did so in his professional capacity, or in the performance of duty and in the regular course of business

f)       The person making the entry is now dead or unable to testify.

Declarations against Interest

Ex. A statement by the debtor before he died that he owes the creditor a sum of money, or an oral acknowledgment by the principal that he received the money previously entrusted to his agent, are clear declarations against the interest of the person making it.  Note that declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors in interest or even against third person.

Common reputation

While common reputation in the community may establish a matter of public or general interest, marriage or moral character, it CANNOT establish pedigree. This is established by reputation in the family and not in the community.

Commercial Lists and the Like

Must be made by persons engaged in that occupation and are generally used and relied upon by them and those lists and reports are published.

Learned Treaties.

History books, published finding of scientists fall within this exception IF the subject testifies to the expertise of the writer of if the court takes judicial notice of such fact.

Testimony or Deposition at a Former Proceeding.

The testimony is one given in a former case or proceeding or administrative, involving the same parties and the same subject matter. The testimony was given by one who is now dead or unable to testify. Said testimony may be given in evidence against the adverse party provided the latter had the opportunity to cross-examine the witness who gave the previous testimony.

Waiver

The rules of evidence may be waived. The rules are established for the protection of the parties. Except if the rule waived by the parties has been established by law on grounds of public policy.

Matters need NOT be proved (ISA-JP)

1)      Immaterial allegations

2)      Facts admitted or not denied provided they have  been sufficiently alleged (Rule 8)

3)      Agreed and Admitted facts

4)      Facts subject to Judicial Notice

5)      Facts legally Presumed

Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by a party in the course of the proceedings.

Elements

1)      The same must be made by a party to the case

2)      The admission must be made in the course of the proceedings in the same case, and

3)      There is no particular form for an admission, it may either be written or verbal.

Judicial Admissions may be made in

1)      Pleadings filed by the parties,

2)      In the course of trial either verbal or written manifestations or stipulations

3)      In other stages of judicial  proceedings as in the pre trial of the case

4)      Admissions obtained through depositions, written interrogatories or requests for admissions.

• Judicial admissions can be made by either a party or counsel.
• Judicial admission may be contradicted only when it is shown that
• 1. It was made through palpable mistake or 2. That no such admission was made.

Remedy of a party who gave a judicial admission:

In case of written judicial admission – motion to withdraw the pleadings, motion, or other written instrument containing such admission.

Judicial admissions are always conclusive upon the admitter and do not require formal offer as evidence, unlike in the case of extra-judicial admissions.

Rule on dismissed pleadings

Admissions made in pleadings that have been dismissed are merely extrajudicial admission.

Admissions in civil cases	Admissions in criminal cases
Admissions in a pleading which had been withdrawn or superseded by and amended pleading are considered extra judicial admission	Admissions during arraignment may be withdrawn at any time before the judgment of conviction becomes final, but such plea of guilty later withdrawn is not admissible in evidence againt the accused who made the plea. It is not even considered an extra judicial admission

Disqualification by reason of Marriage (sec. 22)	Disqualification by reason of Marital privilege (sec. 24 (a)
Can be invoke only if one of the spouses is a party to the action	Can be claimed whether or not the other spouse is a party to the action
Applies only if the marriage is existing at the time the testimony is offered	Can be claimed  even after the marriage is dissolved
Constitutes a total prohibition for or against the spouse of the witness	Applies only to confidential communications between the spouses
The objection would be raisedon the ground of marriage. The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is for or against the objecting spouse, the spouse-witness cannot testify.	The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into.

Disqualification by reason of marriage (spousal immunity)

Take note of the ff.

Judicial admissions vs. Extra-judicial admissions

Competence vs Relevance

Best Evidence Rule

Real Evidence definition (replica offered as evidence)

Parol evidence would not be objected if the ambiguity was put in issue in the pleadings

Laying the basis for the offer of a photocopy of a contract. Originals

Expert testimony of a promissory note

Credibility defined – refers to worthiness of belief.

Chain of custody

When may an ordinary witness testify as to his opinion?

When may parol evidence be allowed?

How do you lay the basis for introduction of secondary evidence when a) original is lost b) ht original is in the custdy of the adverse party.

How to impeach testimony of a witness, definition