1.

Fear of Litigation
- The most common remark that can be heard from the mouth of a potential litigant is a
proud challenge.
- These remarks are mere figure of speech blurred out to release a tension that had been
building up inside the party’s ego.
- These verbal outbursts are meant to test the adverse party’s reaction in the expectation
that he will begin to feel the challenger’s threat might turn into action, hence, he’d better
propose an amicable settlement.

Demand Letter

- The language of a demand letter may vary according to one’s ability and temperament to
put down in writing what had been brewing for some time inside one’s brain’s structure.

When to prepare a demand letter

1. When in your assessment of every material evidence you have gathered, you are convinced
that they are sufficient to start a court litigation; and
2. After conducting an extensive interview of your client and witnesses, and in your objective
evaluation of such evidence, there exists a valid cause of action.

In an obligation to deliver or to do, demand letters are required because the person is deemed
legally in delay when there us demand and the demand letter is proof that such demand was made.
Article 1169 of the New Civil Code of the Philippines provides that. Those obliged to deliver or to do
something incur in delay from the time the oblige judicially or extrajudicially demands from them the
fulfillment of their obligation.
As an advocate of law who has sworn to aid the courts in administration of justice, more than
the duty to defend the cause of the client, it is still a task to prevent expensive litigations and/or explore
with the adverse party the possibility of an out of court settlement. This is so because, the agreement of
the parties has the force of law between the parties, unless tainted with forgery or duress or undue
influence, and any court judgment that contravenes or does not conform with the will of the parties is
annullable and unenforceable.

In any case, Rule 48 of the 1997 Rules of Civil Procedure provides for the
mandatory process of pre-trial conference:
- an expedient scheme of maintaining goodwill and the cessation of hostilities between the
warring parties;
- procedure is available in a civil case, and at any stage during the pendency of the case;
- In criminal case however, only the civil aspect of the case can be the subject of amicable
settlement.
- Failure on the part of the party litigant to attend such preliminary conference despite due
notice, shall consider a lack of interest on his part, or waiver on his part from the benefits
thereof.

2. Negotiation
- Negotiation is essentially conciliatory in nature participated in by two or more parties
usually with the assistance of their respective counsels. It may be initiated by counsels
themselves from either or both sides.
 - Negotiation may be conducted by lawyers of both parties even without a special authority
subject for ratification by the client or with the letter’s prior authority before the terms
become the basis of an out of court settlement.
- Initially, formal talks start between counsels of both or multiple interested parties-clients or
even by the parties themselves, developing into formal conferences in the presence of the
parties or prior consultation with them.

3. Fear of incurring unnecessary expenses incident to litigation process

- Litigants who before being dragged into litigation were wealthy and financially stable, have
after undergoing the travails and barrowing experience of prolonged court battles become
destitute and mental unbalanced.
- Litigants are hounded by the prospect of incurring expenses of litigation, particularly
exorbitant fees.
- There are distraught clients that pressure the his lawyer to do something after hearing those
kinds of news – they tend to prod their lawyers to make overtures for negotiation with the
adverse party.

4. Fear of suffering mental torture, anxiety, social humiliation

- The client is gripped by the feeling of insecurity, needing the lawyer’s company more than
ever to give him reassurance of a favorable judgment from courts.
- The lawyer when confronted by this type of client must be on guard with his ethics, lest he
will be tempted to make false promises and pursue illegal and immoral cause of action just
to please his client.
- Negotiation is made not only to end a client’s paranoia, but also because it is the cheapest
vehicle to prevent brewing litigation.

5. Desire by the lawyer to rake fat remuneration

- Uppermost in the mind of a practicing lawyer with seldom or very rare exceptions, is to rake
handsome fees, who do not even care whether their clients are indigents or poor.
- No matter how fierce the denial, it is the lure of handsome fees that drives them to thrive in
this dog-eat-dog profession, like the wild dogs who will kill over a carcass.
- There are decent practitioners who really take their profession at heart and are always
willing to offer their services pro bono, conscious of the truth that they cannot carry their
material accumulations beyond the grave.
- These rare breed of practicing lawyers are still the remnants and/or have inherited the
merciful blood of Saint Ives of Britanny and St. Fidelis of Suabia, who were known to be
advocates of the poor.
- Caveat against the right of lawyer to charge the professional fees that are due him, and they
must not be unconscionable or champertous.
- Art. 1491 of the Civil Code prohibits the acquisition of client’s property by assignment.
- These excesses in the lawyer’s right to a just honorarium, could be a potential ground for
disbarment for dishonesty, deceit and/malpractice.
6. Impelling force exerted by third parties to gain unusual advantage from out of court
settlement
- 3rd parties involved in the transaction who later on may litigate as third-party complainant,
cross-claimant, 4th party complainant, 5th party complainant or intervenors.
- There are persons who not being lawyers, act as brokers or agents who are interested in
realizing fat commissions. They are of the aggressive breed of unscrupulous money makers
and mercenary workers who volunteers their services to lawyers and prospective litigants by
making proposals to the adverse clients.
- It is advisable to hire the services of experienced brokers for the purpose of pushing the
parties to the negotiating table.
- There are good number of these fly-by-night operators who ply their trade behind the back
of judges, most of whom are found right then and there working as personnel and members
of court staff.
- Some of these sleek operators are employed in not so prestigious law offices and they are
easy to contact thru some court personnel who connive with them in facilitating the speedy
issuance of court orders and ancillary reliefs.