Thursday, July 14, 2011

Legal Procedures 26: After the last pleading or motion

(Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

[1] After the last pleading is filed, the court decides on either one of the following:

A. Rendering of judgment based on the pleadings, or a summary judgment; or

B. Scheduling of the pre-trial conference upon motion of the plaintiff.
[2] Judgment on the pleadings (Rule 34); Summary judgment (Rule 35)

The plaintiff files a motion for judgment on the pleadings (complaint and answer), or a motion for summary judgment (pleadings, affidavits, depositions and admissions of the parties).

If the court grants the motion, it renders judgment. But if the court denies the motion, then the pre-trial conference is scheduled.

[3] The pre-trial conference is scheduled upon motion of the plaintiff. The motion states the desired day for the pre-trial. In practice, at least two dates must be suggested to accommodate the schedule of the court and of the opposing lawyer. The court is not bound by the suggested date.

After the defendant has filed the Answer, some judges issue an order scheduling the pre-trial conference. If you are a brand-new lawyer, make it a habit to talk to the court staff about the judge’s preferences or ways of doing things.

Note:In some cases, upon the filing of the complaint, the plaintiff may ask the court to issue a temporary restraining order (TRO) and writ of preliminary injunction, requiring a party to either refrain from doing something or to perform a particular act.

Within 24 hours after receiving the records of the case or the sheriff’s return, the trial judge must grant or deny the application for a TRO. If granted, it is good only for 20 days and is automatically lifted after such period. During the effectivity of the TRO, the court may hear the petition for a writ of preliminary injunction. If the injunction is granted, it is effective for the terms and conditions specified by the court.

Please read my post “The ABS-CBN versus Willie Revillame case: What is a TRO?”.

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