Midterm Reviewer| LEGAL WRITING| | Arellano University School of LAW
I.
LEGAL WRITING1
The act of a legal professional in convincing others of his
legal stands, position or opinion presented in a form of
writing.
2015
A. Aims of Legal Writing (Aid: For Love I Put
Eternal Will)
Facts- legal writing will help you identify and put together the
Forms:
as a lawyer/Counsel: (Mnemonics: PRROMM [like JS Prom])
Pleadings- an answer to complaints or denying client’s
facts on which the issue of the case will be decided.
Law- Help you find the law or rule that applies to your case
given the nature of the legal dispute involved.
Rejoinders- the defendant's answer to the plaintiff's
Issue- Help you correctly Identify issues in a case.
Power- help you pack power in your arguments, allowing you
replication
to establish your position and destroy the opposing counsel’s.
Replies- an answer to petitioners claims against defendant
Oppositions- a statement denying the other party’s claim
Memoranda- a brief helping parties to remember points of
Edit-
liabilities
help you edit your work, tighten your sentence and
make your writing come through to your reader clearly.
Write
better- help you prepare adequate, clear and
convincing PRROMMs.
future reference
Motions- an application to obtain an action in favour of the
applicant
As a judge: (aid: DRaG)
II.
LEGAL DISPUTE
-Occurs when defendant denies the claim against
him.
Petitioner (You did)
DISPUTE
(No I didn’t) Defendant
Decisions- to be put in writing
Results of the case- to be announced in writing, and
Grounds for the decision- in writing
Example instance:
Legal dispute lies between an apartment owner
claiming that tenant fails to pay monthly rents and
therefore should leave and the tenant’s denial of
the claim and invokes to stay.
1
Legal dispute is the HEART of every case because
it involves a violation of a right protected by law.
Contents credit to Abad, Roberto A: Fundamentals of Legal Writing.
Rex Book Store, Manila Philippines: 2014
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Midterm Reviewer| LEGAL WRITING| | Arellano University School of LAW
Such case can only be resolve if there will be a
proper resolution to end the dispute.
Legal Dispute2 is that which is recast in a form of an issue:
(like the “whether or not”)
In the above instance, the legal dispute can be
recast in a form of an issue, stated thus: “whether
or not the tenant who fails to pay the monthly rents
must leave the unit”.
Importance of knowing the issue:
Issue- Identify the issue that you would address.
Argument- roughing out the arguments that you would see.
2. Write-up- writing the legal aspects in an organized and
convincing manner as a draft or paper. What completes this
stage is the editing and rewriting
IV.
A. Studying Case Materials
1. Random notes: making short notes in random on the
facts you consider to be relevant
Advantage: fast noting
Disadvantage: uncorrelated facts, effective only on
works done in one sitting
STAGES IN LEGAL WRITING (Aid: Please Wait)
1. Pre-work- the step when the legal professional must gather
the data or details of the case (ex. Dates, testimonies from
witnesses)
2. Summary: Compressing the information you need, a
detailed map to guide you.
Advantage: cohesive, complete thoughts, good in both
short and long duration works
A. Process of Pre-work (Aid: Down From Loving In
Arellano)
B. Principles in Summarizing:
Dispute- establish where the legal dispute lied in the case.
Facts- discovering the relevant facts.
Law- know the law or rules applying to it.
2
There is legal writing because there is legal dispute
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GETTING AT THE FACTS OF THE CASE
Facts: Talks about what the case is about in every angle.
Since the case will be decided based on the issue
involved, it is a must that a lawyer knows what he is fighting
for. If he argues on the wrong issue, the case will surely fall
against him and his client.
III.
2015
1. TAKE OUT the non-essential facts, they are:
(Aid: No Permanent Status)
a. Number of the ordinance or law3
b. Place where it is enacted
c. Superfluous statements4
3
A and B does not possess any bearing on the law’s constitutionality
Midterm Reviewer| LEGAL WRITING| | Arellano University School of LAW
Example: the unnecessary are put into parenthesis
[Section 10 of] Ordinance [No. 105 of Tagaytay City]
provides that at least 5% of [the total area of any]5 memorial
park [established within its jurisdiction] shall be set aside for
charity burial [of its pauper residents]6 and that no permit to
[establish7], operate, [and maintain private memorial park8]
shall be granted without the applicant’s conformity [or
agreeing to such conditions]9.
Understand easier the facts. Human experience occurs in an
order of time.
Clearly see how facts relate or connect with each other.
versions of the parties and the disagreements therein are
able to see clearly.
Prepare you well for the work of writing up the facts of the
case in your pleadings.
2. Extract Relevant Facts from Cluttered Facts
Include or retain: (Aid: Do All Whales Jerk?)
Descriptions of victim (age, status)
Affirmations (yes to questions during examination)
Wh questions (Who raped you? When did he rape you?
Where did he rape you? Of course the “How” is the most
interesting one )
V.
KNOWING THE APPLICABLE LAW
-The law applicable to the facts of the case and the issue
being disputed upon.
A. Sources of Law (Aid: Supreme Court)
Statutes- rules enacted by the duly constituted rule-making
authorities like Congress, the President, Supreme Court
case Law- decisions of the courts in relation to article 8 of the
Civil Code.
Justifications (answer to her actions being questioned)
3. Set the FACTS in SEQUENCE
-Put the events in order of their occurrence.
Importance: (Aid: Unlimited Cuddle Very Pleasing)
4
Not important because they convey one thought being repeated
creating redundancy
5
This is a common knowledge
6
Ofcourse, we can’t give charity to the rich
7
Superfluous with the subsequent verbs
8
This is obviously the subject matter, no need to reiterate
9
Conformity and agreement conveys the same thought
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B. Locating the right Law and Legal Precedents (Aid:
General Legaspi)
General Nature- indentify the general nature of the legal
dispute involve. If the dispute involves criminal offense, look at
the Penal Laws. (ex Rape incident, Art 266 of Revise Penal
Code)
Legal precedents- with the facts of your case, search for
legal precedents10 that have more or less parallel facts
10
Case with similar issue which is already decided by the court
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Example Legal Precedent (Rape Case)
A. Prosecuting Side
1. Fear has it bizarre way of rendering people immobile
(People v Realin, 301 SCRA 495)
2. Trustful witness may sometimes make mistakes but it
doesn’t affect their credibility (People v Reduca, 301
SCRA 516)
3. Failure of Victim to report immediately is not an
indication of fabricated charge (People v Casil, 241
SCRA 285)
4. Absence of physical injury does not negate the
commission of rape (People v Gapasan, 243 SCRA 53)
5. It is improbable for a Barrio girl to fabricate stories of
rape which would invite reprisal ( People v Vitor, 245
SCRA 392)
6. Failure to shout or offer resistance does not guarantee
submission of the victim (People v Marabillas)
7. Threatening a victim with a knife is sufficient to cow the
victim (People v Alquizallas)
B. Defending Side
1. Illicit relationship between parties may gain favour in
courts (People v Godoy, 250 SCRA 676)
2. Claim of being threatened is a face-saving subterfuge
(People v Godoy, 250 SCRA 676)
3. Girls in rural areas act with circumspection and great
caution (People v Godoy, 250 SCRA 676)
4. In rape cases, testimony of offended party must not be
given credulity (People v Godoy, 250 SCRA 676)
5. A ravished woman would instinctively shout or resist
(People v Sinatao, 249 SCRA 554)
6. It is unlikely for a woman not to offer resistance when
confronted with such affront to her honor (People v
Sinatao, 249 SCRA 554)
VI.
GETTING INTO THE ISSUE
Pinpoint the specific issues that the conflicting claims of
the parties present and to put them in writing.
A. Multiple Legal Issues
The claims, denials and the counterclaims produce
several issues.
Example:
A contracted B to ship his shrimps with C’s refrigerator. When
the product reached manila, it is already spoiled.
Issues arising from: (1) A’s claim that B and C were negligent,
(2) B’s claim he was not negligent, that it was the malfunction
C’s refrigerator that spoil the product (3) C’s claim that his
refrigerator is not malfunctioning; B’s crew was not able to
monitor the power supply.
B. Relevant and Irrelevant Issues
While in a case, there will be several issues, your goal is to
determine which issues are relevant or not. As a rule, only
issues that when resolved determine the outcome of the legal
dispute are relevant to the case
Example:
In the above case, the following are relevant issues:
1. Whether or not the refrigerator was malfunctioning11.
2. Whether the crew did not monitor the power supply12.
3. Whether or not B and C were negligent in handling the
product.
The following are irrelevant issues:
1. Whether or not the crew is expert in navigation13.
11
12
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This will determine the liability of C
It determines B’s liability
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2. Whether or not B was in the ship when the product is
delivered.
2015
Affirmative Claims- the accuser always bears the
C. The Controlling Issue
-The issue of which resolution will determine the outcome of
the case14.
burden of proving the affirmative of his or her claims.
Exception: when an accused in a murder case plead for
self defence15
D. Factual Issues
-Contending parties cannot agree that a thing exists or has
actually happened.
Fair- statement must be fair and not slanted in favour of
a party. Example, “Whether X used force in raping Y”16
Comprehensive- it must not leave any relevant point
Example:
A and B in a rape case cannot agree whether or not there is a
mango tree near the incident.
outside its embrace. Example: “Whether or not X raped
Y” covers even the issue “whether or not they are
sweethearts”
Specific- the details must be sufficient to enable the
E. Legal Issue
-Contending parties agree on the existence of something but
are in different position on its legal significance or effect on
their rights
reader to understand what matter is involved and be able
to follow the arguments in the case.
Essence- try to capture in your statement of the issue
Example:
In a rape case, both agreed that the stick of B touched A’s
flower without penetrating it but cannot agree whether or not
such act constitutes rape.
F. Correct Statement of the Issues (Aid: On A Flight
Carrying Several Eggplants)
the essence of the specific violation of right that the
defendant committed. Example: instead of saying
“Whether or not the debtor is liable to the creditor”, say,
“Whether or not the debtor unjustly refused to pay his
debt under a promissory note that he issued in favour of
the creditor”.
Opposing Views- by using introductory words “whether
G. Threshold Issue17
or not”, you incorporate opposing views, the positive and
negative into one statement of issue
13
It does not possess any connection to the cause of action—the
spoiled shrimp product
14
In the case at bar, relevant issues 1 and 2 are the controlling
issues for they determine whether or not B and C are negligent
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15
In such a case, the issue will be stated: “whether or not the
accused killed the victim in self-defence
16
Note, the statement already presumes that the accused indeed
raped Y
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2015
-Those that could slam the door to any judicial consideration of
the case on its merits.
Favor- the arguments in favour of your position
Concepts:
Appeal- plead to the good sense of the person who will
resolve the issue.
Falling outside the scope of: (Aid: APPY, as in kawawa [api])
Structure:
Authority- the court has no jurisdiction
Place- case filed in the wrong place
18
X DID NOT RAPE Y
(Your stand in the Issue)
.
Party- case filed by the wrong party or the petitioner has no
Arguments Against You
Arguments For You
cause of action to file a case against respondent
Years- case filed after too many years
VII.
Appeal to Your Readers’ Good Sense
ROUGHING OUT THE ARGUMENT
-Overall picture of your presentation providing purpose and
direction to your writing.
A. Balanced Presentation (Aid: TAFA)
Thesis- state your position or your stand on the issue
Against- the arguments against your stand but with an
explanation that those arguments do not doom such position
B. Anatomy of Legal Argument
-Argument is reason offer to prove your thesis or proposition19.
Example:
Proposition: I am funny
Argument: People laugh at my lines
C. Syllogism
-Deductive reasoning to arrive at a conclusion based on two
proposition.
17
This takes precedence over the legal dispute. Hence, “whether or
not RTC Bataan has jurisdiction over the rape case” must be decided
first before the dispute on “whether or not X rape Y”
18
Criminal offense done in Cavite, tried in RTC Bataan
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19
This is different from an alibi which means an attempt to prove
that the accused is in some other place at the time the crime was
committed
Midterm Reviewer| LEGAL WRITING| | Arellano University School of LAW
Elements:
2015
E. Rules
1. Major Premise- Generally Accepted Truth
2. Minor Premise- Statement that brings something within
a class covered by the accepted truth
3. Conclusion- deduction on the application of the minor
premise to major premise
-Applicable rules include legislative rules and the following:
(Aid: Cant Say Rachelle Cant Cry)
Constitutional provisions
Statutory provisions
Rules of Court
Judicial Precedence- or the Case laws
Common Logic or Common Experience
21
Example:
22
All law student are busy (Major Premise)
Jd is a law student (Minor Premise)
Therefore, JD is busy (Conclusion)
23
-Every sound legal argument is combination of the right rule
and the right fact.
F. Sample Roughed Out Argument
D. Legal Syllogism
Elements:
Rule Statement- (Major Premise)
Case Fact (Minor Premise)
Conclusion
Example:
Crossing the Red light is punishable by law (Major Premise)
JD crossed the red light (Minor Premise)
Therefore, JD should be punished (conclusion)
Key Fact- a fact component of the rule statement for its subject
Example:
In the case at bar, the rule statement is “crossing the red light
is punishable by law, its subject is “crossing the red light”20.
21
Example: Ignorantia Legis non excusat Article 3 Civil Code
Example: Offer of compromise from the accused may be received
as an implied admission of guilt
23
A person who hides inside a sack cannot tie it from the outside
22
20
Thus in a major premise of: “Mere touching of reproductive organs
constitute rape”, “touching of reproductive organs” is the key fact
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H. Arguments that Build Up
X DID NOT RAPE Y
(Your stand in the Issue)
Use to support your thesis or position (Aid: Can’t Cure Envy)
Credible Witness- favourable testimony comes from them
24
Arguments Against You
Vaginal lacerations, usually
found in rape victims were
found in Y
Uncorroborated, X claim is
self serving since Y never
admitted it. Or being only a
suitor, he was capable of the
crime
Arguments For You
As a virgin, Y can have
vaginal lacerations during
consented sex
Being sweethearts, it was not
likely for X to Rape her
(Appeal to Your Readers’ Good Sense)
It is fair that the testimony inconsistent with the common
experience is not believed
.
Family member of the other party are often regarded as
partisan.
Common Experience- the version of the party which is
consistent with common experience is credible25.
Elements- If all the elements of a valid claim have been
proved, there is credibility to the argument26
I.
Arguments that Destroy
Use this to destroy the opposing side’s position if he invokes a
wrong rule (Aid: I Waited Because Ces Understands Patience)
Irrelevance- if the argument raise by the opposing party is
G. Creative Thinking
Steps on Creative thinking (Aid: Dont Pay Fees)
irrelevant to the issue27.
Weight- the argument given is relevant but produces little
weight on the position.28
Data- be sure that your mine gets all the data and inputs
about the case.
24
Example is the medico legal
If X and Y are sweethearts, it is highly probable that they “forgot
themselves” when they were alone together.
26
Hence, if all the elements in rape case can be established, the
claim of the party is credible
27
Whether or not there is a mango tree nearby the alleged rape
scene is irrelevant to determining whether or not a rape took place
28
The argument: “Y’s failure to see X’s parents to explain his side
shows his guilt” produces little weight since X’s brothers would have
killed Y if he immediately went to see them after she cried for rape
25
Problem- Pose the problem to your mind
Forget about the case. Take time out and let your
subconscious mind do the work. Go to sleep. The answers will
just pop out of your mind.
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Baseless- the argument presented does not warrant any
proof29.
Contrary to Common Experience- the argument is
2015
Piece Meal- hearings in the Philippines are piece meal
32
. It is
highly probable that the judge dealt with many cases before
yours. You don’t want him to mix up the facts with other cases.
inconsistent with common logic or common experience30
Misconception- there is a possibility that the judge
Undeniable Facts- argument presented is contrary to
misunderstood the facts from the pleadings or during the
hearing. It is important to introduce to him the facts again.
undeniable facts31. No assertion can deny facts that cannot lie.
Prior Claim- when the argument is inconsistent with the prior
claim. Also known as, conflicting testimonies.
VIII. Introducing the Issues
A. Assumption that the Judge is familiar with the Facts
It is not prudent to assume that the judge is well familiar with
the facts of your case. Don’t rush on giving your argument to
him, there is a need to introduce the case.
Judge cannot be expected to remember your Facts because:
(Aid: Attend Preaching Mass Service)
Summary- the justices of an appellate court may have relied
on the lawyer’s summary of the facts only.
B. Sufficiency of Introduction
The amount of background facts you put into your pleadings
must contain only the facts needed for an understanding of the
issue or issues that the parties present.
C. Ordinary Appeal
Contains two statements: (1) statement of the case and (2)
statement of the facts
Attention Span- even judge’s attention span is limited. You
1. Statement of the Case- Describes the nature of the
action and the proceedings it had gone through.
2. Statement of the Facts- narrates the transaction or
event that created the legal dispute and led to the filing
of the suit.
cannot expect him to remember everything.
D. Sample Appeal, Form with Example
29
Petitioners counsel cannot simply say: “X is a good, innocent girl
who will not cry for rape if it was not true”, such claim is baseless
30
It is contrary to common experience that a barrio girl will walk
alone in a corn field in the middle of the night
31
When opponent says, “X wasted no time and immediately report
the incident to the police”. While the police records indicate that X
went to see them 2 weeks after the alleged incident
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32
Meaning, gradual
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2015
Plaintiff X filed a criminal case of Rape against respondent
Y with RTC Bataan. The lower court ruled in favour of
petitioner, hence this petition to this court.
(Statement of the Case)
X and Y both attended a wedding party. By 11: 30Pm of
Feb 12, 1969, plaintiff testified that she went home alone
but the respondent followed her on the corn field. He tried
to offer to walk her home but she refused. When she
reached the cornfield, he forced her and abused her. She
told her aunt of the incident and submitted herself to
medical examination after 2 days
(Statement of the Facts)
Plaintiff’s Version33 of the
Facts
Defendant’s Version of the
Facts
- The defendant was his
girlfriend
- They walk together
- They made love
- The petitioner was her
suitor
- She walk alone that night
- He forced her and
ravished her
Whether or not defendant raped the plaintiff.
(Issue)
(Body of Arguments)34
WHEREFORE, petitioner Y respectfully prays the court to
set aside the decision of the trial court dated May 1970
and dismiss the complaint against him.
(Relief)
33
Where there is conflicting versions, it would seem best to extract
your facts solely from the direct testimonies from either sides.
34
See chapter 7 (f)
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“If any of you lack wisdom, let him ask of God, that giveth to all
men liberally, and upbraideth not; and it shall be given him”
James 1: 5
GOD BLESS YOUR EXAMINATION
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