Effective proposals for stipulation of facts, Part 3

 Posted By: je froilan m. clerigo
10-Apr-2008

More on making effective proposals for stipulation:

3. Limit the proposals to facts. This should be quite obvious because the proceedings is called "stipulation of facts" not "stipulation of arguments". Yet, it is not rare to still encounter a proposal such as this: will the plaintiff admit that he was negligent in crossing a street without a pedestrian lane?

Obviously, whether an act is negligent or not is a conclusion of fact, one that is for the court to resolve; it is properly an argument, not a fact to be proved. If it is an argument, it will surely meet denial by the other side.

The lawyer, however, may consider revising her proposal by limiting it to the fact that the plaintiff crossed the street. Then, she can follow up with another proposal that there was no pedestrian lane in that part of the street. Even if one is denied, the other may possibly be admitted.

4. Limit the proposal to one fact at a time. Much like in cross-examination where we are counseled to ask one fact at a time, so it is with proposals. If we compound the proposal, the other side can make a blanket denial; had we broken the proposal down, one of the facts may be admitted.

For instance, this proposal: will the plaintiff admit that the contract of lease was terminated because the rents were not paid?

This is obviously a proposal for 2 facts: one, the fact of termination, and two, the fact that the reason for the termination is that the rents were not paid. If the termination of the contract is already a given, then this proposal may be good since then, what we presumably are getting to is the reason for the termination. But even then, this proposal can still be improved; as it is, while the other side may concede that the rents were not being paid, he may resist the implication that this was the cause for the termiantion of the cotnract.

We can propose two facts for admission: will the plaintiff admit that the lease contract was terminated? Then, will the plaintiff admit that the rents for January and February 2008 had not been paid?

5. Make the proposals in an affirmative tone. In other words, avoid proposals phrased in the negative: they are ambiguous, tend to confuse and may just automatically draw a denial.

To avoid confusion, craft your proposals in an affirmative way.

For instance, "will the plaintiff admit that he did not sign the contract" will be ambiguous if it is answered with a simple "denied" or "admitted". If denied, what the plaintiff is saying is that he admits signing the document. The denial to me is actually a yes to the contract. On the other hand, if he admits, he says "yes, he did not sign the document" which is to me, actually a denial of the contract.

To make things simple, proposals must be in the affirmative. If we want the other party to say yes, the contract existed, or no, the contract did not exist, we simply ask, will the defendant admit that the contract was signed by him?