Wednesday, July 20, 2011

Trial Memorandum Sample 2 (from the Supreme Court)

Essay Part 1: Trial Memorandum

PART 1 – TRIAL MEMORANDUM:
Consider the following direct testimonies given in a hypothetical case for damages. Assume that you are the lawyer for either one of the parties. Using the information given, choose one side and write a memorandum of arguments that the court may consider before deciding the case.

1. Testimony of Complainant
COURT STAFF: (After swearing in the witness) State your name and personal circumstances.
WITNESS: I am Luz Diaz, 65 years old, a widow and resident of Mountain View Subdivision, Antipolo, Rizal.
ATTY. RICO SANTOS: With the Court’s permission. Ms. Diaz, how long have you been a resident of Mountain View?
A: Thirty (30) years, sir.
Q: Do you know Ms. Emma Crisostomo?
A: Yes, sir.
Q: How do you know her?
A: She is my neighbor in Mountain View for the last three (3) years.
Q: Why are you now suing Ms. Crisostomo?
A: Because her carpenter killed my dog.
Q: How did her carpenter do this?
A: His truck was parked in front of Emma’s house and rolled backwards, crushing my dog.
Q: How did the truck roll backwards when it was parked?
A: The street where we lived is sloping and for some reason, the truck moved backwards and ran over my dog.
Q: When did this happen?
A: In the afternoon of October 25, 2010.
Q: What is your dog’s name?
A: Trix
Q: What kind of dog was he?
A: He was a poodle.
Q: How old was Trix?
A: He would have turned eight years old last month if he hadn’t died. He’s been with me since my husband passed away eight years ago.
Q: How did you find out about Trix’s death?
A: I was taking my siesta by the day bed in my living room and noticed that Trix was no longer by my feet. He always sleeps by my feet.
Q: What did you do when you noticed he wasn’t there anymore?
A: I got up to look for him. I thought he was in the kitchen because he liked to go there to rub his belly on the tile floor, but he was not there.
Q: Where did you look for him next?
A: I decided to go to the garden because he also liked playing with the plants there.
Q: Did you find him there?
A: Before I even reached the garden, I heard a loud crashing bang. Then I heard
his cries.
Q: What did you do next?
A: I ran towards the gate because the sound came from outside. When I opened
the gate, I saw Trix under the wheel of a truck.
Q: What else did you see?
A: The truck was backed up against a tree by the sidewalk and Trix was thrashing and squealing underneath the truck. Blood was coming out of his mouth.
Q: What did you do then?
A: I cried and screamed for Nilda, my helper, and shouted for the guards who roamed the subdivision, but no one came.
Q: Did you try to save Trix?
A: I could not save him even if I wanted to, because there was no one in the truck’s driver seat. I do not know how to drive, so I just kept crying and screaming.
Q: What happened to Trix then?
A: He kept on howling until he stopped moving and making any sound. He died soon after.
Q: Did you know who owned the truck?
A: Yes, it has always been parked in front of Emma’s house ever since she began renovating it. I knew it belonged to one of her carpenters.
Q: Did you complain to Emma?
A: Yes, I banged on her gate as soon as Trix died.
Q: What did Emma do?
A: She called the owner of the truck. I kept on crying and crying because I loved
Trix very much but she did not do anything.
Q: What did Emma say to you, if any?
A: She said that it was not her carpenter’s fault that Trix was run over by the truck because it was properly parked. She said that it was only an accident.
Q: What did you say to her?
A: I told her that the truck could not have been properly parked because it moved by itself. She got mad afterwards.
Q: Why did she get mad?
A: She said that I should not blame the carpenter because Trix was not supposed to be out on the streets in the first place. She even said it was good riddance because Trix was a pest.
Q: How did you react to what she said?
A: I got very mad too. I told her that she should get me another dog because Trix was my only companion. I took care of him like a baby.
Q: What did Ms. Crisostomo say?
A: She refused all my demands and insisted that it was my fault.
ATTY. SANTOS: That is all, your honor.

2. Statement of Defendant
COURT STAFF: State your name and personal circumstances.
WITNESS: I am Emma Crisostomo, 42 years old, married and a housewife.
ATTY. REY REYES: Do you know the complainant in this case, Ms. Luz Diaz?
A: Yes, sir.
Q: How do you know her?
A: She is our neighbor in the subdivision.
Q: When did you first meet Ms. Diaz?
A: I met her for the first time three (3) years ago when we moved into the subdivision. Her dog pulled out the plants in my yard and I knocked on her door to complain.
Q: Is this the same dog that is the subject of this case?
A: Yes, sir.
Q: Ms. Diaz testified that it was your carpenter’s fault that the truck ran over her dog. What can you say about that?
A: It is not anyone’s fault but hers because the dog should not be out roaming the streets. It was a pesky dog and I have complained about it many times.
Q: What were your other complaints about the dog?
A: Well, the dog dug holes in my lawn. It would frequently deposit its wastes on our driveway and also pee in front of our house, leaving a foul smell. One time, it even chased my little girl down the road.
Q: How many times have you complained about the dog to Ms. Diaz?
A: About eight (8) to ten (10) times in the last three (3) years. I even complained to the homeowners’ association after it chased my little girl.
Q: Is Ms. Diaz a member of the homeowners’ association?
A: Yes, sir.
Q: What did the homeowners’ association do?
A: The homeowners association passed a board resolution banning wandering dogs in the subdivision. It warned Ms. Diaz about her dog.
Q: I have here a document entitled Board Resolution No. 3, series of 2009 issued by the Mountain View Subdivision Homeowners’ Association. Does this document have any relation to the board resolution you mentioned?
A: Yes, it is the same document.
ATTY. REYES: Your honor, we would like to have this document marked as Exhibit 1.
COURT: Mark it.
ATTY. REYES: Ms. Crisostomo, did the board resolution mention any penalties for wandering dogs?
A: Yes, sir. The board resolution says that wandering dogs will be caught and thrown into the municipal dog pound.
Q. Ms. Diaz says that you should be held liable for the careless way that your carpenter parked his truck along the street. What can you say about that?
A. My construction foreman assured me that the truck was properly parked in front of our house. He followed subdivision rules when he parked the truck.
Besides, if the dog was not out on its own, it would not have been killed. Luz has only herself to blame for letting her dog roam the streets freely.
ATTY. REYES: That is all, your honor.

3. Statement of witness for defendant
COURT STAFF: State your name and personal circumstances.
WITNESS: I am Gregorio Timbol, 53 years old, married and a carpenter.
ATTY. REY REYES: Mr. Timbol, how long have you been working as a carpenter?
A: Thirty-five (35) years, sir, for as long as I can remember.
Q: On October 25, 2010, were you working on a project?
A: Yes, sir.
Q: What project were you working on then?
A: I was working on the renovation of Mrs. Emma Crisostomo’s house.
Q: Was there anything unusual that happened on that day?
A: Yes, sir. Mrs. Diaz’s dog got killed in an accident.
Q: How did this accident happen?
Essay Part 1: Trial Memorandum
Page 4 of 6
A: It got run over by my truck which was parked in a sloping part of the street in front of Mrs. Crisostomo’s house.
Q: Was the truck old?
A: It was an old model, sir. I bought it second hand and had it overhauled and repainted.
Q: How did you park the truck?
A: I followed the subdivision rules, sir. I parked it in front of Mrs. Crisostomo’s house and put two large rocks against the back wheels to make sure that it doesn’t roll back down the street.
Q: Mrs. Diaz says that you carelessly parked the truck. What can you say about this?
A: That is not true, sir. I followed all subdivision guidelines.
Q: Then why did the truck roll backwards?
A: The rocks were no longer there when I took a look at the scene after the accident happened. Someone must have removed them.
ATTY. REYES: That is all, your honor.

Laws and jurisprudence that may apply

1. Article 694 of the Civil Code
A nuisance is any act, omission, establishment, business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

2. Article 695 of the Civil Code
Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition.

3. Article 699 of the Civil Code
The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.

4. Article 704 of the Civil Code
Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and
(4) That the value of the destruction does not exceed three thousand pesos.

5. Article 705 of the Civil Code
The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.

6. Article 1159 of the Civil Code
Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

7. Article 2176 of the Civil Code
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

8. Article 2179 of the Civil Code
When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

9. Article 2180 of the Civil Code
The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

10. Secosa vs. Francisco, G.R. No. 160039, June 29, 2004, 433 SCRA 273, 277
When an injury is caused by the negligence of an employee, there instantly arises a presumption that there has been negligence on the part of the employer, either in the selection of his employee or in the supervision over him after his selection. The presumption may be rebutted by a clear showing that the employer exercised the care and diligence of a good father of the family in the selection and supervision of his employee.

11. Philippine National Railways vs. Court of Appeals, G.R. No. 157658, October 15,
2007, 536 SCRA 147, 154
Negligence is the failure to observe, for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury – all that the law requires is for a person to use that care and diligence expected of sensible men under comparable circumstances.

12. Ramos vs. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597
SCRA 526, 535-536
Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.

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