Fundamentals of Legal Writing Pages 1-9

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L"g*l \fridng S"op" oflegal Wtiting the things that lawyers vzrite to . This book is wln others over to^T": thgir point ofo'ie*. If yoi ;;r; ;;*. ieg tavrye4 you would b. doing , to, oiitii.

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For insance, when your client, ,-;, ^ you teSardinS the threl of a possible lawsuit fro* :o tomer who was takel ill.af_cer.eaung " in your client,s ,.rLLLr, yoo..*r{ lave to 1,:nf-lri* bacl(,-giving him your,,1.*rLgading his probabre riabirity based"on ir. r*.., rr. ,.u, y""

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When the case gets to.court, you would be filing a num_ pleadinp like an ani&er to the customer,s :f P. complainq denying your client's Iiabirity or minimizing ir Further dovrr the road, you would probaliy fiI. hj* assorted pleading.s, m3tions, oppositions, replies, reioinders, memoranda, aad

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Aod if you were m be &e who is also a lawyer, iodg.,'h"o. and must decide the casg yoo oro,rli ,o put yout deci_ sion in *itirg, announce its results, ,*o.^t to the parties your reasons for the decision. Under our laws, ,h.

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entitled to know why they won or lost a case. The strength

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your decision lies in the validity and persuasiveness of the opinion supporting it. This, too, is legal writing.

Aims of the Book

.' The pdncipal aim of this boekis to hetp you write plead* ings, lqgal opiaions, memotanda and orher position paper$, dearly and convincinglS and torwin others to yotrr point of view. Consequently, aparr ftom leaming the geoeral structure of effeaive legd writing this book will do more. One. This book will help you identify and put together the facts on which the issues of a case will be decided. As a rule, cases will not come with the facts all sorted out for you. You will discover, as you study the documents, hold interviews with the parties involved, or simply examine the records, that the relevant facts in a case arc fx from organized and come mixed up with the irrelevant. He who is able to extract and organize the relevant facts would have the advantage of arguing from unclutteted truth. You cao get there if you persevere in the lessons of this book

Two. This book will also help you find the larv or rule that applies to your case given the nauue of the lqgal dispute iavolved in ir You will discover that laws are not restricted to those enacted by duly constituted legislative bodies called "satute law." A great body of laws also evolves from iudicial precedents, where courts inteqpret laws as these apply to specific cases. This body of laws is refered to as "case law." Your knowledge of the law involved in your case, both statute law and case la.r, must complement your kaowledge of the

facts to prepare you for the job of writing to persuade your reader to your point of view.

Three. This book *ill h.lp you correctly identifr the issue or issues in a case. T1re isiul does foruo opirrioo o, pleading what the nrdder does fot a ship. If you aqgue the^ wroog issue, it would be like pointing your rudder to the

wrong ditection such thet your argument would rrot rouch port and miss the real issue that the case llresents. When this happeasr'your case would be decided oo ,n issue that you choie not to be heard on. You can avoid this.

Four. This book will help you pack power into your arIt will show you the elements of balanced presen^ tation of those arguments and what it takes to destroy the argument of tle opposite side while building up your own. It gumeots.

urill also show you the importance of a closing satement and how you could prepare a most effective ooe.

Five. This book will show you how to edit your work, tighten your sentences, and make'yout *itirg come through to your reader clear$. A number of legal*itiogprescdptioas in this book may appear controversial to some but controversies initiate discussion and the fiee markepl".e of ideas always profits from it AII that is required is an open mind. Si:r" This book aims to help you write beter. Some say that the ability to write well is a natural gift that is not available to all This mrght be rue. But the fact that you have gotten this far in your studies gives you the dght to assume that you have the grft to write. All you have to do now is improve on your gift.

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Mastet a few refurbished techniques collected in this book and you are oa your way to prepering adequate, dear, aod convincing pleadings, lqgal opiniofls, iltemoranda, and other position PaPers. Of coursg the greatest secret of suc* cess rn vrititrg well is in constandy striving to use what yo-u leam Theywillnotwork unless you Put them into pmctice

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The Legal Dispute A lryal dispute lies at &e heart of every case. In facg most of yo* qdring assignments as a huyer would probably be devoted to aryqing and resofing q.rch a dispute. Meaning of legal dispute For the pu{pose of this boolq there is a lQ*rl4rre when ,ulegal dispute in this sense is akin to a cause of action iu a civil suit in which the defendant denies the chim against him. It is this denial that tenders a legal dispute.

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'Whea a person renting an apartrnent at g..Ily could not pay the agreed monthly rents yet refuses to leave his unig a legal dispute arises. This consists of (a) the apartment ownet's claim that the tenart fails to pay the agreed monthl1r rents yet refuses to leave his unit and (b) the tellant's derdal of the clairrr You have in dris case a dght protected by law, an alleged violation of such rieht, arid a denial of the allegation---a legal dispute

The right clainred to have been violated musq of course, be a legal dght since courts will uphold and vindicate only

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those rights that are established or recogqized by law. For insance, a Filipino may claim tlmt he deserres to be allowed to travel to the Udted Sates. Buq if the U.S. embassy denies him the visa reqrired fot entry into that coutrry, he cannot file a larrsuit to compel its issuance since Philippine laws do not graflt him that right. Likewise, the dispute over the demand that Filipino rather than English be made the m'edium of instruction ip atrl Ieve,ls of education is not a le'gal dispute since it does not involve afl actllal violation of iome right Ttre controversy,, althouglr of pgblic interesg will:not to be resolved by litigation but by legislative action. What is the legal dispute when a Person allegedly refuses to pay his debt? The legal dispute lies in (a) the creditot's claim that the debtot uniustly tefuses to pay his debt under a ptomissory note that he issued in favot of the ceditor and (b) the debtotts denial of such a claim. Again, you have here a dght protected by law, an alleged violation of the right, and a denial of the allegation. a criminal case, the legal dispute consists in the State's the accused has violated its right to compel obedithat claiar ence to its larilIs and in the lattels dedal of the daim at his arraigrmenL So what does the tegal dispute consists of wtren p.i*on defrauds another by selling a fake Rolex watch to "him for the price of a genuine one? This consists of (a) the State's charge that the accused deftauded the complainant by selling a fake Rolex watch to him fot the price of a genuine onel ard (b) the accused's denial of the chatge.

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Its significance in legalwriting it imporant in legal *ritiog that you are able to identify the legal dispute involved in a case?

\V'hy is knornr and

Since a legal dispute involves a violation of a rigfrt protected by law or which violation the larr punisheg f,othifig less tlan thc rcsolution of such dispute could properly end it Preciseln we say that a legal dispute is at the heart of errery case subject of legal writing because it is like a tumor tbat would not go away until it is excised. Consequently, if you fail to correctly identifr the legal dispute and ad&ess ig you would iust be running around in circles, contributing nothing to its final termination. That is how important it is!

L.g"l dispute

and the princtpal issue

As a rule, the tegi'dispute, recast in the format of an issue, ptovides the principal issue in every case. Take the earlier case of the tenant who could not pay the agreed monthly rents yet refuses to leave his apartrnent unit We said that the legal dispute consists i" (u) the apertrnert owtret's daim that &e tenant fails to pay the agreed monthly rents yet refuses to leave his unit ,nd (b) the tenant's denial of the claim. Put in the fonoat of an issue, the principal issue is *whether or not the tenant fails to pay the monttrly teuts yet refuses to leave his unit." Take also the case of the person who tifuses to pay his debt. We said that the legal dispute lies in (a) the creditor's claim that the debtor unjusdy refuses to pay his debt under a promissory note that he issued in favor of the creditot and (b) the debtor's denial of such a claim. Rerxrritten in the fomrat of

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an issug the pdncipal issue is rcwhethet ot not the debtor uniustly refuses to pay his debt under a promissory note that he issued in favor of the creditor."

In the cdminal case discussed above, we said that the legal dispute consists in (a) the State's charge that the accused de&auded the comphinar* by selling a fake Rolex vratch to hisi for the price of a gequine onq and O) the accused's der-rial of &e charge. Recast as an issue, tlre principal issue is'(whether or not &e accused defrauded the complainant by selling_a fake Rolex watch to him for ttre price o{ genuine one."

phat does the legal dispute consists of when a building official issues to the owner an occupancy permit for a building with inadequate fite exits? It consists of (a) the complainant's daim that respondent buitding official issued to the owner an occupa$cy permit for a building with inad*quate fire exits in violation of Section 3(e) of Republic Act 3019; and (b) the respondent's denial of that daim. Ttansfomred into an issue, the pdncipal issue is 'cwhether or not respondent building officid issued to the owner an occupancy permit covering a building that has inadequate fire exits in violation of Section 3(e) of Republic Act 3019.' Impo*ance of principat issue 'il0hy is knowledge of the principal issue important to you? It is imporant to you because your cas€ will be decided for or agaiast you based on that issue. It is impottant because you judge the significance of every argumeflt that you want tc use to persuade yout reader by its relevance to the pdncipal

issue. Any argumeot that does not touch base with the princir pal issue or issues (there could be more than one principd issue involved in a case) would be quite useless and a waste of

time.