Effective proposals for stipulation of facts, Part 1

 Posted By: je froilan m. clerigo


Why is "stipulation of facts" becoming a useless exercise during preliminary conferences? I went through a preliminary conference last week and virtually got no stipulation from the other side. In fact, when I lamented the lack of cooperation from the other lawyers, I was doubly disappointed when one of them said that maybe it would speed things along if we just state in the minutes that the parties admit only those facts stated in their respective pleadings. Doesn't that defeat the purpose of the exercise?

Indeed, most lawyers are indifferent to stipulations of facts (I found this reaction to be equally true to the modes of discovery despite the Supreme Court instructing trial judges to encourage their use among lawyers appearing in their courts). I would venture that this is due to lack of appreciation of the benefits of stipulation.

In a bouncing checks case, for instance, where receipt by the accused of the demand letter is now virtually an indispensable element of the crime, just imagine if you are able to get a stipulation of personal receipt by the accused: that's lifting a heavy (if not the heaviest) load off of your shoulders! And, if the accused also admits that the checks were his, and that they bounced, well, you're almost done. And that's just during the pre-trial stage!

Or, even if we're aware and do appreciate the benefits of stipulation, we don't translate it to action by coming to the proceedings prepared (most of us just read through the proposals for stipulation enumerated in our pre-trial briefs). For instance, how can we commit to a stipulation if we are not familiar with the documents, or even facts, of the case? I suspect that we even suffer paranoia during these times. When confronted with a proposal, we know how it will affect our case because the facts proposed are sometimes so obvious that there should be no reason not to stipulate on it. However, we instinctively say to ourselves, what if it is used against my case later on? Thus, we conclude that it is better to just deny it and let the other lawyer prove it during trial.

What we probably don't realize is that an otherwise prejudicial fact somewhat loses its impact if, rather than being testified to by a witness, it is instead stipulated on.

Of course, the judge must cooperate as well. She should be able to see through a lawyer's antics, whether the lawyer is responding to the proposals in good faith, is dragging his foot, or is just being plain obstinate. And she must act accordingly, chastising him if necessary.

Here's something to ponder. A judge once told me that she's impressed with a lawyer who is cooperative during stipulations, and is willing to enter into it even if the facts may appear to hurt him. It shows that the lawyer knows his case, he knows how to spot the issues, and is confident of the righteousness of his cause. And it will never hurt to earn the good graces of your judge.