TRIAL TECHNIQUE

I. GENERAL PRINCIPLES

A. Trial Defined
Trial is the presentation of credible evidence sufficient to persuade the court to believe in the justness of a
party’s cause as against the other party.

B. Credibility of Evidence
1. It conforms to common experience.
2. The inference drawn from evidence is logical.
3. The critical evidence is compatible with undeniable evidence of record.
4. The essential evidence is consistent with the surrounding circumstances.
-antecedent, concomitant, and subsequent.
5. A credible witness gives the evidence.
6. Even if the facts narrated are logical and natural, if the character of the witness is known for lying, his
statement cannot be given credence.
7. The witness relates his story spontaneously.
8. A testimony must have no traces of coaching and rehearsal.
9. The witness has been consistent in his statements.
10. The demeanor of the witness reflects a character for truth.

C. Stages of Work Relating to Trial

1. Preparation
2. Presentation
3. Demolition

PREPARATION
A. Functions of the Trial Brief
The trial brief contains the plans and preparations for trial in writing that is contained in a folder.

It the lawyer’s personal strategy materials for trial.

B. Contents of the Trial Brief

1. Brief summaries of the opposing claims of the parties.
2. Outline of the applicable law-statute and case laws.
3. A statement of the factual issue or issues subject of trial (principal and subordinate)
4. Theory of the Case.
5. A detailed narration by each of the witnesses, with supporting documentary evidence, if available.
6. An Exhibit File
7. A detailed outline of the facts that the opponent’s evidence will prove
8. A cross-examination guide.
9. Report of progress of trial and notes on revision of strategies.

Theory of the Case

It is the particular line of reasoning of either party to a suit which aims to bring together certain facts of the
case in a certain order or logical sequence, and to correlate them in such a manner as to produce in the
mind a definite result or conclusion, which the advocate believes entitles him to the judgment or decree of
the court, in view of the application to such result or conclusion of certain principles of law.

Importance -the theory of the case is the vital hub about which every move undertaken by the advocate
toward the prosecution or defense of his case, in the lower court as well as on appeal, revolves.

Kinds of Theory:
1. The hypothesis or provisional theory
2. Choice of theory
3. Theory of the case as modified by adversary’s theory

Election of Remedies
The election of remedies is the choice by a party to an action of one of two or more coexisting remedial
rights, where several such rights arise out of the same facts.

2. PRESENTATION
Attitude that a trial lawyer must take when advocating a client’s interest-believe in your client’s cause.
Function of direct examination -to build up through your witness the facts on which your client’s version of the
case will stand.

Scope of direct examination-should be the totality of direct testimonies of the witnesses which should be
sufficiently comprehensive to cover all factual elements necessary to a decision in the client’s favor.

Preparing the witness for direct examination.

TIPS/ADVISES TO THE COUNSEL AND WITNESS:

• Listen closely to the questions, allowing you to finish before answering.

• Avoid volunteering information not being required.
• Prepare witness individually rather than as a group.
• Review with the witness any previous testimony, statement or communications which he might be
confronted with.
• In direct examination, use open-ended questions to elicit descriptive responses.
• Use simple, everyday conversational language, not written language of the books.
• Ask questions clearly and to the point.
• Confer with witness at least one week before the trial so you can evaluate his personality, ability to speak,
and manner of attire.
• If witness has to work with an exhibit, chart or other demonstrative aid, allow him to see the same before
the trial date.
• Establish a good relationship with your witness by being considerable and pleasant to work with.

Planning the Direct Examination

• Define the scope of the testimony of each of your witnesses.

• Arrange the facts in chronological order.
• Help the witness recall.
• Bring out the weakness in the testimony of your witness yourself.
• Keep your direct questions short and simple.
• Prepare for an expert witness.
• Build up your case from scratch.

Conduct of Direct Examination

• Like story telling.

• Avoid asking leading questions.
• Not a wholesome practice to repeat the witness’ last answer before asking the next question.
• Avoid “habit” utterances like “ah, hah, okay, alright or similar words.
• Be in earnest during direct examination.

3. DEMOLITION

2 Major tasks of a lawyer:

First, to build up his client’s case to a winning position; and
Second, to demolish that of the other side.

• Fallacies of Testimony
• Probabilities
• Cross to Common Sense
• Collateral Attack
• Learned Treatises as Cross Examination Tools
• Main Objectives of Cross-Examination
• Chances of Success

Cross-Examination
Practical Lessons in the Conduct of Cross-Examination
• Ask mainly leading question of the witness during cross examination.
• On occasions, use non-leading questions.
• Do not make your leading questions tiresome.
• Phrase your leading question in the affirmative.
• Broaden the point you want to make.
• Go for one bit of fact at a time.
• Establish your strongest points at the start of cross-examination.
• Know the probable answers to your questions before you ask them.
• Do not let the witness get away with non-responsive answers to your questions.
• Arrange your questions in the right sequence.

Behavior towards the witness

Do not browbeat, badger, or raise your voice against the witness of the opposite side specially if the witness
is a child, a woman or an old person. Be fair, courteous and humble.

When to terminate the cross-examination

One should know when he has made a point and quit while still ahead. Make just a few points with a witness
who is telling the truth and whose performance produces a favorable effect on the judge.

Important Principles and Techniques in Cross-Examination

• Consider refraining from cross-examination.
• Do not let an unimpeachable witness retell his story.
• Do not be trapped into eliciting facts proper for direct.
• Avoid asking the witness to repeat testimony that favors yours.
• Do not cross-examine with an improper motive.
• Cross-examine with preset goals.

Discrediting the witness and prejudicing the adverse party’s case

• By showing the bias of the witness.
• By showing cracks in his testimony through
• Inherent improbabilities in his testimony
• The witness’ testimony conflicts with common sense
• Internal conflict or confusion within the testimony itself.
• The witness has limited access to the facts.

Bolstering one’s case through cross-examination of the witness

• Cross-examination need not be directed only at discrediting or impeaching a witness. You must consider
whether the witness for the opposing side is in a position to testify in a way that will bolster your own’s client
case.
• Secure positive agreements from him
• Have him affirm the credibility of your own witness.
• Have him concede your client’s theory as a reasonable alternative.

How to prepare for cross-examination:

• Write a detailed cross-examination guide.
• List the inevitable admissions of the witness that can boost your theory of the case.

How to conduct an effective cross-examination:

• Watch the witness.
• Listen to the answers.
• Make a strong opening.
• Identify the subject matter.
• Control your temper.
• Avoid animosity.
• Be courteous to the witness.
• Show respect for the Court.
• Be brief in cross-examination.
• Maintain control of the witness by asking leading questions.
• Do not risk open-ended questions.
• Do not make him repeat his story.
• Avoid appearance of unfairness.
• End with a bang.

How to handle objections to your cross-examination questions:

If objected to during the course of the cross-examination, you must proceed confidently and undeterred,
without demonstrating the slightest sign of distress or anger.
Do not demonstrate any hostility to the judge.

How to test the competence of the witness:

• Latent fallacies.
• The witness’ sensory perceptions of sight, sound touch, smell and taste; and
• The witness’s conscious impressions based on personal experiences, bias, financial considerations, pride,
motivation, loyalty and personal character.
• Probabilities
• Common Sense

How to handle the cross-examination of an expert witness:

• Collateral attack
• Use learned treatises as cross-examination tools.
• Qualifications
• Opinions
• Financial bias
• Frequency and length of medical exam.

D. TRIAL OBJECTIONS

Purpose:
In order to prevent the introduction or consideration of inadmissible evidence. It must be timely and specific.
The general rule is that, except with regard to plain error, objections to evidence must be made either before
or contemporaneously with the presentation of the evidence sought to be admitted.

As a rule, you must make your objection at the time the evidence is offered or the

question is asked.

Common Grounds for Objections:

1. The questions calls for immaterial or collateral matter.
2. The question is beyond the scope of the direct examination.
3. The question is vague.
4. The question was already answered.
5. Counsel asks multiple questions.
6. The question has no basis
7. The witness is not competent to testify.
8. The question calls for a privileged matter.
9. The witness is not competent to answer the question.
10. The question is leading.
11. The question calls for an opinion or a conclusion.
12. Matter sought is not the best evidence.
13. The question calls for an answer that violates the parole evidence rule.
14. The question calls for hearsay evidence.
15. The question is argumentative.
16. The question is beyond the scope of the cross-examination.
17. The question is speculative or hypothetical.
18. Motion to strike out non-responsive answer.
19. The question calls for a narrative answer or the witness is giving a narrative answer.

TRIAL PROPER

A. HOW TO BEGIN A CIVIL CASE

• Securing facts and information from the client

• Court with jurisdiction over the subject matter
• Payment of docket and other lawful fees
• Issuance of summons by the Clerk of Court

BEGINNINGA CIVIL CASE

Pleadings
These are the written statements of the respective claims and defenses of the parties submitted to the court
for appropriate judgment. These are complaint, answer, counter-claim, cross-claim, reply, third party
complaint and complaint in intervention.

The purpose is to ascertain and present the real point in controversy, for the minds of the court may not be
drawn off upon matters immaterial, irrelevant and unimportant to the issue and to acquaint the opposing
party with the facts that are intended to be proved in support of the issues raised.

3. Theory involved in a pleading

The legal formula

Major premise-is the legal premise upon which the plaintiff bases his demand.
Minor premise-is the statement of fact to which the principle is to be applied.
Conclusion- is the logical deduction resulting from the application of the principle of law.

The cause of action

The cause of action is the act or omission by which a party violates a right of another. - stated in the complaint
in the form of ultimate facts

-contain venue thereof, when the right of the plaintiff was violated, how violated, why violated, that
defendant is the violator and legally responsible therefore or that he was the person primarily causing its
violation; the causal relation of his acts or omissions to its violation and to resulting injury that the damages
claimed were the necessary consequences of the violator’s acts or omissions; the nature and extent of
damages, or the nature and extent of relief asked and how and in what manner the acts of the defendant
complained of resulted in damage to plaintiff.

The purpose of this is to form issues.

Two kinds of facts: (civil proceedings)

1. Ultimate facts-the fact or facts which form the basis of the action or defense and upon the proof of which
the right to a judgment rests.

2. Evidentiary facts – facts which are accessory to the main factor which relate to in such a way as tend to
prove it. Need not be alleged – matters of testimonial and documentary evidence.

a. the prayer
The complaint must specify the relief sought by the plaintiff. The character of a cause of action, however, is
not determined by the prayer of the complaint but by the facts alleged.

The plaintiff is entitled to as much relief as the facts alleged constituting the cause of action may warrant
although no such relief is asked for in the prayer.

5. Important rules of pleading in civil cases

a. Conclusions of fact

Generally, facts and not conclusions of fact must be pleaded as ultimate facts.

b. Conclusions of law
They should not be pleaded as ultimate facts. A statement of a conclusion of law is a statement of a right or
liability flowing from certain facts.

c. Matters of Presumption
Need not be pleaded.

d. Anticipating defense
It is not proper in a complaint to anticipate or negative any defense or counterclaim.

7. In what court action must be filed

Lawyer must first ascertain what court may take cognizance of the case. The lawyer must be guided by the
Judiciary Reorganization Act of 1980 of BP 29, as amended by RA 7691.
The lawyer should know the jurisdiction of every court from the first level court to the Supreme Court.

8. The rules on venue of courts

After establishing which court it must be filed, the lawyer must now determine in what particular court the
case should be brought. He must be guided by the rules on venue of real and personal actions.

Real actions- that founded on the privity of real estate. Those brought for specific recovery of land or founded
on the seizure or possession and property right.
Personal actions – one for recovery of personal property, enforcement of a contract or damages for its
breach, or for damages for injury to persons or property.
Venue of real actions-proper court which has jurisdiction over the area wherein the real property involved, or
a portion thereof, is situated.
Venue of personal actions – all other actions may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides or where the defendant or any of the principal defendants or in the case of a non-
resident defendant where he may be found, at the election of the plaintiff.
Venue of actions against non-residents. – If any of the defendants does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant
located in the Philippines, the action may be commenced and tried in the court of the place where plaintiff
resides, or where the property or any portion thereof is situated.

When rule of venue is not applicable-

1. in cases where a specific rule or law provides otherwise; or
2. where the parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof.

8. Parties to the suit

a. Real party in interest

Is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails
of the suit. One who has a legal right while a real party in interest-defendant is one who has a correlative
obligation whose act or omission violates the legal rights of the former.

This, however, admits exceptions which permit a trustee of an express trust, a guardian, executor,
administrator or a party authorized by law or Rule of Court to sue or be sue in his own name. However, the
beneficiary shall be included in the title of the case and shall be deemed real party in interest.

Husband and wife shall sue or be sued jointly, except as provided by law. Article 145 and 111 of Family Code
on regimen of separation of property where one may appear alone in court and litigate with respect to
exclusive property.

b. Indispensable and necessary parties

Indispensable parties are those without whom the action cannot be finally decided. All indispensable parties
must be joined in the suit either as plaintiffs or defendants. The evident aim and intent of the rules regarding
the joinder of indispensable parties is the complete determination of all possible issues, not only between the
parties themselves but also as regards to other persons who may be affected by the judgment.

When a complaint is defective by reason of failure to include an indispensable party, reasonable opportunity
to amend said pleading must be given, and the action should not be dismissed except when the plaintiff fails
or refuses to include said party, or the latter cannot be sued.

When an indispensable party is not impleaded before the court, the action shall be dismissed.

c. Necessary parties are those who are not indispensable but who ought to be joined as parties if complete
relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim
subject of the action. Their joinder is not compulsory. The non-inclusion of necessary parties to the action will
not prevent the court from proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such parties.

d. Unknown identity or name of defendant

Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir,
devisee, or by such other designation as the case may required, when his identity or true name is discovered,
the pleading must be amended accordingly.
e. Entity without juridical personality

When two or more persons not organized as an entity with juridical personality enter into a transaction, they
may be sued under the name by which they are generally or commonly known. Their names and addresses
must be revealed.

f. Indigent party
A party may litigate his action, claim or defense as an indigent if the court, upon an ex parte application and
hearing is satisfied that the party is one who has no money or property sufficient and available for food, shelter
and basic necessities for himself and his family. He shall be exempted from payment of docket and other
lawful fees and of TSN. The amount of the docket and other lawful fees which the indigent was exempted
from paying shall be a lien on any judgment rendered in the case favorable to him, unless the court
otherwise provides.

g. Who shall be the parties-plaintiff and defendant

Plaintiff may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc)
party plaintiff, while defendant may refer to the original defendant party, the defendant in a counterclaim,
the cross-defendant, or the third-party defendant.

Only natural or juridical persons or entities can be parties in a civil action: those who are recognized as person
under the law whether natural or juridical. Entities authorized by law to institute actions.

h. Joinder or misjoinder of parties

As a general rule, all person having an interest in the subject of the action in obtaining the relief demanded
shall be joined as party plaintiffs. If any person having an interest in the subject of the action in obtaining the
relief demanded refuses to join as plaintiffs with those having a like interest, he may be made a defendant
and the reasons therefore shall be stated in the complaint.

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right to relief against one may be inconsistent with a right
of relief against the other.

i. Class suit
It is an exceptional situation where there are numerous person all in the same plight and all together
constituting a constituency whose presence in the litigation is absolutely indispensable to the administration
of justice.

The representation of a class interest which will be affected by the judgment is indispensable, but it is not
indispensable to make each member of the class an actual party.

Requisites of a class suit:

• that the subject matter of the controversy is one of common general interest; and
• that the parties are so numerous that it is impracticable to bring them all before the court.

j. Death, incapacity or incompetency of party

In general, when a party dies pending action, and the claim is not extinguished by his death, as when the
claim is not for recovery of money, debt or interest therein, it is the duty of the counsel to inform the court
within 30 days of the fact of death and to give the name and address of his legal representatives. The heirs
of the deceased may be allowed to be substituted for the deceased without requiring the appointment of
an administrator or executor.

The death of the defendant does not affect a pending action for money, whether the death occurs while
the case is pending since he is substituted by his executor or administrator of his legal heirs and the action
continues until a final judgment is entered.

k. Joinder of causes of action

In general, only one suit can be instituted for a single cause of action. If two or more suits are instituted based
on the same cause of action, the filing of one or a judgment on the merits in any one is a ground for the
dismissal of the other.

The rule forbids splitting a cause of action. It consists of dividing a single or indivisible cause of action into
several parts or claims and bringing several actions thereon.
Joinder of claims is permissible in three ways: (1) between the same plaintiff and the same defendant; (2)
between different plaintiffs and one defendant; or (3) between the same plaintiff and different defendants.
Joinder of causes of action is merely permissive and not mandatory. A party, is not, therefore, obliged to
include in one complaint all the causes of action which he may have against the opposing party.

B. DEFENDING A CIVIL CASE

1. A MOTION TO DISMISS/AMEND/STRIKE
a. Ascertaining plaintiff’s case

Ascertain, by reference to plaintiff’s complaint, what he must defend against. Under the amended Rules on
Civil Procedure, the defendant now has 30 days after service of the summons, unless a different date is fixed
by the court, to appear and defend, either by seeking dismissal of the complaint or filing his answer thereto.

b. Attacking the form of complaint

The complaint must contain a caption setting forth, the name of the court, the title of the action and the
parties, the substance of the claim or cause or causes of action, division of body into paragraphs, headings
when there are two or more causes of action, the relief sought for, the date, the signature and address of the
attorney representing the parties, verification when required by the rule of law, and a certification against
forum shopping. If not, it may be dismissed or may be stricken out upon motion of the party or upon the court’s
own initiative.

c. Attacking the jurisdiction of the court

Jurisdiction is the power and authority of a court to hear, try and decide a case. If under the law, for any
reason, the court has no jurisdiction, either over the person of defendant or over the subject matter of the
suit, the motion to dismiss the complaint shall be filed before the filing of an answer or pleading.

Jurisdiction of the court over the subject matter is determined by the allegations of the complaint. Defenses
asserted in court do not determine jurisdiction. Jurisdiction over the person and over the subject matter are
both conferred by law.

d. Attacking the venue

When venue is improperly laid the defendant may file a motion to dismiss the action.

Jurisdiction deals with the powers of the courts in a real and substantive sense, while venue relates to the
procedure by which such powers are put into action One is substantive, the other procedural.
Venue may be conferred by the parties. Jurisdiction cannot, it is fixed by law.

e. Attacking plaintiff’s legal capacity to sue

Where the plaintiff does not have legal capacity to sue the defendant must file a motion to dismiss the
complaint.
The plaintiff lacks legal capacity to sue
(a) when he does not have the necessary qualifications at the trial because he is not in the full exercise of his
civil rights, as when he is a minor, incapacitated or incompetent;
(b) when the plaintiff does not have the character or representation he claim, as, when he is not a duly
appointed executor or administrator or that the plaintiff is not a corporation duly registered in accordance
with law.

f. Attacking plaintiff’s right of action for non-joinder of indispensable parties

When the cause of action sued upon requires joinder with another who is not joined as plaintiff or defendant
and that said other party has such interest in the controversy that a final decree would necessarily affect his
rights, so that the court cannot proceed without his presence.

g. Attacking plaintiff’s right to maintain the action because of lis pendens.

When there is another action pending between the same parties for the same cause, defendant may ask for
the dismissal of the case. There must be identity of parties, or at least such as represent the same interest in
both actions there must be identity of rights asserted, and the relief founded on the same facts and the
identity in the two cases should be such that the judgment that may be rendered in one would, regardless of
which part is successful, amount to res judicata in the other.

h. Attacking plaintiff’s right to maintain action because of prior judgment.

Where the cause of action is barred by prior judgment, the defendant may ask for the dismissal of the case.
In this connection, the distinction between the effects of a judgment in rem and judgment in personam must
be borne in mind. Judgment in rem, as, for instance, a judgment rendered in connection with a petition for
the probate of a will, are binding upon the whole world. Judgments in personam, on the other hand, are
binding upon the parties and their successors in interest but not upon strangers.

i. Attacking plaintiff’s right to maintain the action under statute of limitations

The New Civil Code of the Philippines limits the time within which an action may be brought, and an action
brought after the expiration of such term is barred.

Exceptions: prescription does not run against a minor or person of unsound mind; nor between parents and
children during the minority of insanity of the latter; nor between guardian and ward during the continuance
of guardianship.

Actions which must be brought within 10 years from the time the right of action accrues:
1. upon a written contract
2. upon an obligation created by law;
3. upon a judgment.

Within 6 years:
1. upon oral contract
2. upon a quasi-contract

Within 4 years:
1. upon an injury to the rights of the plaintiff;
2. upon a quasi-delict’

Within one year:

1. forcible entry
2. unlawful detainer
3. for defamation

All other actions whose periods are not fixed in the Civil Code or in other laws must be brought within 5 years
from the time the right of action accrues.

j. Attacking plaintiff’s right of action under the statute of frauds

Where the complaint for a cause of action required to be in writing by the statute of frauds, does not show
compliance therewith, a motion to dismiss the complaint may be filed.

The New Civil Code contains the agreements which cannot be proved except by writing, or by some not or
memorandum thereof, subscribed by the parties sought to be charged, or by his agent, or by secondary
evidence of its contents. Such are the following:

1. those entered into in the name of another person by one who has been given no authority or legal
representation or who has acted beyond his powers;
2. those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an
agreement hereafter made shall be unenforceable by action, unless the same, or some note or
memorandum thereof, be in writing and subscribed by the parties charged, or by his agent, evidence
therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents;

(a) An agreement that by its terms is not to be performed within a year from the making thereof;
(b) A special promise to answer for the debt, default or miscarriage of another;
(c) An agreement made in consideration of marriage, other than a mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred
pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, of some of
them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made
by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and
kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is
made, it is a sufficient memorandum.
(e) An agreement for the leasing for a longer period than one year, or for the saleof real property of for an
interest therein;
(f) A representation as to the credit of a third person.

4. Those where both parties are incapable of giving consent to the contract.

N.B. The statute of frauds as a ground for motion to dismiss is applicable only to agreements enumerated
therein which are purely executory. It is neither applicable to executed contracts partially performed.

k. Attacking plaintiff ’s right to maintain action because of release

A motion to dismiss the complaint may also be filed on the ground that the claim or demand set forth in the
plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished.

l. Attacking the legal sufficiency of plaintiff’s cause of action

The rules of pleading require that the complaint must contain a concise statement of the ultimate facts
constituting the plaintiff’s cause or causes of action A cause of action is an act or omission of one party in
violation of the legal right or rights of the other; and its essential elements are: legal right of the plaintiff,
correlative obligation of the defendant and act or omission of the defendant in violation of said legal
right.

The cause of action must be definitely and precisely stated in the form of ultimate facts with such particularity
as to inform the defendant of the nature and extent thereof as to enable him to intelligently defend against
the same.

It must clearly and definitely show (a) a legal right of the plaintiff and the correlative obligation of the
defendant; (b) a violation of that right by the defendant or that defendant was the proximate cause of its
violation; (c) when and how such right was violated; (d) injury to the plaintiff; (e) the casual relation of the
violation of the right to the injury of the plaintiff; (f) that the damages claimed resulted as a natural
consequence thereof; (g) the legal right of the plaintiff to damages; (h) the nature and extent of the
damages; and (i) how and in what manner they resulted from the violation of the right.

m. Attacking plaintiff’s right to maintain action for non-compliance with a condition precedent

If the plaintiff’s right of action depends upon the condition precedent, such as recourse to barangay
conciliation or lack of earnest effort towards a compromise in a suit between members of the same family,
he must allege the fulfillment of the condition or a legal excuse for its non-fulfillment.

n. Attacking the sufficiency of complaint based on actionable document

The defendant may attack the sufficiency of a complaint based on a written instrument or document if the
substance of said instrument or document is not set forth in the complaint, and the original or a copy thereof
is not attached to the complaint as an exhibit or said copy is not set forth in the complaint.

o. Hearing of a motion to dismiss.

At the hearing of the motion, the parties shall submit their arguments on the questions of law and their
evidence on the questions of fact involved except those not available at that time. All issues, whether of law
or fact, which arise on a motion to dismiss (as on a motion to quash) shall be tried by the court.

While defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived,
when it appears, however, from the pleadings or the evidence on record that (a) the court has no jurisdiction
over the subject matter, (b) that there is another action pending between the same parties for the same
cause, or (c) that the action is barred by prior judgment or statute of limitations, the court shall dismiss the
claim.

p. Bill of Particulars

A party is entitled to know in advance the case he must meet at the trial; and he is entitled to see in his
adversary’s pleading sufficient material facts to make it clear and definite. Hence, when the allegations of a
complaint, for instance, are so indefinite and uncertain that the nature of the action cannot be understood
therefrom or when the allegations are uncertain or indefinite as to time, place, quantity, title, person, or any
matter required to be pleaded with certainty in the particular case, a party may move for a more definite
statement or a bill of particulars.

The office of a bill of particulars is to make definite certain matters which were not set forth in he pleading
with sufficient particularity to enable the moving arty to prepare his responsive pleading or to prepare for trial.
It is properly an amplification of a pleading, designed to make more specific general allegations which
appear therein, and to avoid surprise at the trial.