What happens at a preliminary hearing (“audiencia previa”)?

Question

José Manuel Alburquerque · Accepted Answer

In ordinary proceedings (“juicio ordinario”), it is the first appearance before the judge after the defence to the claim has been filed and it serves to prepare for the trial. The judge first tries to get the parties to reach an agreement and, if there is none, resolves any procedural issues that would prevent the case from continuing, such as the matter having already been decided or the absence from the case of someone who should have been sued. The facts on which the parties disagree are then identified and each party proposes its evidence, which the judge admits or rejects. Nobody gives evidence at it, because the evidence is taken later, at the trial. What happens, in order The preliminary hearing follows the order laid down by law: The attempt to reach an agreement. The judge checks whether the dispute is still ongoing and, if the parties reach an agreement, can approve it, after which it can be enforced like a judgment. The parties can also jointly ask for the case to be suspended in order to negotiate or to go to mediation. Procedural issues. The judge resolves any obstacles that would prevent a judgment on the merits, such as defects in representation, the absence from the case of someone who should have been sued or the matter having already been decided or being pending in other proceedings. If the defect cannot be corrected, the case ends there, without a trial. The court's lack of jurisdiction is not one of these issues, because the defendant has to raise it earlier, within the first ten days of the time limit for filing a defence. Clarifications. The parties can clarify or supplement what they said in the claim and the defence, without substantially changing what they are asking for. They also say whether they accept or dispute the other party's documents and expert reports. The facts in dispute. The facts on which the parties agree are identified, as are those on which they do not, which are the only ones that will have to be proved. Evidence. Each party proposes its evidence, usually in a written submission handed in at the hearing. The judge admits the evidence that is relevant and useful. If the judge thinks it may be insufficient, he or she can say so and indicate which facts might remain unproven. At the end, the date of the trial is set, which the law says should be within the following month. If everything comes down to a legal argument, or the only evidence consists of documents that nobody challenges and expert reports whose authors nobody asks to question in court, there is no trial and the judge gives judgment within twenty days. How it is conducted It is an oral hearing and it is recorded. The decisions the judge takes at it, such as admitting or rejecting evidence or resolving a procedural issue, are normally given orally at the hearing itself, with a brief explanation. The parties can challenge them or lodge a formal protest there and then. Some are recorded in writing afterwards. It usually lasts anything from a few minutes to an hour or more, depending on what has to be resolved. Who has to attend The lawyers and court agents (“procuradores”) of both parties attend. A party may attend in person or not, but if they do not, their court agent must hold a power of attorney authorising the agent to reach an agreement, waive what the party is claiming or accept what the other side is claiming. If the party neither attends nor has granted that power, the law treats them as if they had not appeared. Although it is not compulsory, it is advisable for the party to attend or be reachable, in case the opportunity for an agreement arises. If someone has to give evidence as a party or as a witness, this is decided at the preliminary hearing and the evidence is given at the trial.