Preparing for Oral Hearings

Structure of a Civil Oral Hearing

The oral hearing is the decisive moment of the trial. Poor preparation can ruin a case with solid merits. Below is the standard structure for an ordinary civil trial (art. 431-436 LEC).

Opening Phase

1. The Court Clerk (LAJ) verifies attendance of parties and their representatives.
2. The judge opens the session and gives the floor to the claimant to ratify the complaint or make clarifications.
3. The defendant then ratifies their response.
4. If there is a counterclaim, the same order is followed.

Evidence Phase

The judge admits evidence proposed in the complaint and response. The usual order of examination is:

1. Examination of parties: the defendant is examined first (at the claimant's request), then the claimant (at the defendant's request).
2. Witness examination: each party presents their witnesses. The proponent asks first (direct examination), then the opposing party cross-examines.
3. Expert evidence: experts present their conclusions. If both parties have experts, a confrontation may take place.
4. Documentary evidence: considered reproduced if already in the case file. Clarifications on specific documents may be requested.

Closing Arguments Phase

The parties summarize their positions in light of the evidence. The claimant goes first, then the defendant. This is the time to highlight favorable evidence and point out contradictions.

Examination of Parties

Key Rules

• Questions must be clear, precise and in the affirmative (art. 302 LEC).
• Captious, leading or impertinent questions are not admitted.
• If a party fails to appear, the judge may deem admitted the facts in which they personally participated (ficta confessio, art. 304 LEC).
• A party may refuse to answer questions that violate their right to privacy or imply criminal self-incrimination.

Examination Strategy

• Start with undisputed facts to establish a pattern of "yes" answers.
• Save compromising questions for last, when the party has established a response pattern.
• Always have documentary evidence ready to contradict a possible denial.

Witness Examination

Key Rules

• Witnesses testify individually and without observing prior testimonies (art. 366 LEC).
• Before testifying, they are warned of the duty to tell the truth and the penalties for perjury (art. 365 LEC).
• A witness may be challenged for family ties, friendship, enmity or interest in the case (art. 377 LEC).

Cross-examination Techniques

• Use closed questions (yes/no) to control the witness.
• Never ask a question whose answer you do not know.
• If the witness contradicts a prior statement, have the contradiction read aloud.

Expert Evidence

• Expert reports are submitted with the complaint or response, or a court-appointed expert may be requested.
• At the hearing, the expert may be examined by both parties (art. 347 LEC).
• The judge evaluates expert evidence using rules of sound judgment (not bound by the expert's conclusions).
• When reports conflict, the judge may request a third opinion from a randomly appointed expert.

Objections During the Hearing

The most common objections are:

• Leading question: contains the expected answer ("Is it not true that you signed the contract?").
• Impertinent question: unrelated to the subject of the proceedings.
• Captious question: formulated deceitfully to confuse the witness.
• Inadmissible evidence: an attempt to introduce evidence not previously admitted.

The attorney must state the objection clearly and cite the provision violated. If the judge overrules the objection, a protest must be filed to raise the issue on appeal.

Courtroom Protocol

• Address the judge as "Your Honor" (Señoría in lower courts, Señoría Ilma. in appellate courts).
• Stand to speak and when the judge enters or leaves.
• Robes are mandatory.
• Mobile phones must be on silent.
• Do not interrupt opposing counsel.
• Request leave to speak before intervening.