Legal Writing Abad Reviewer

CHAPTER 1: LEGAL WRITING view.

CHAPTER 3: STAGES OF WRITING

The things that lawyers write to win others over to their point of

Two Stages of Legal Writing 1. Pre-work a. This is the beginning of your writing assignment. Here you are looking at the facts and evidence of the case. (The materials would be raw, if you are dealing with a new case; or, it could be a transcript of the testimonies of the witnesses and the documentary exhibits, if it is a case that has undergone trial) b. Pre-work is a process. c. 5 level of efforts that would make your pre-work adequate: i. Establishing where the legal dispute lies in the case ii. Discovering its relevant facts iii. Knowing the laws or rules that apply to it iv. Identifying the issue or issues that you would address v. Roughing out the arguments that you would use 2. Write-up a. Transforming the sketches and outlines you produced during pre-work into a full draft of the paper required of you. b. What completes the write-up stage i. Editing ii. Rewriting

CHAPTER 2: THE LEGAL DISPUTE There is a legal dispute when one party complains of a violation of his right (must be a legal right recognized by law) by another who, on the other hand, denies such a violation. This is akin to a cause of action in a civil suit Significance of knowing the legal dispute  Since a legal dispute involves a violation of a right protected by law or which violation the law punishes, nothing less than the resolution of such could properly end it.  A legal dispute is at the heart of every case.  Failure to identify and address the legal dispute would result in running around circles, contributing nothing to its final termination. Legal Dispute and the Principal Issue  The legal dispute, recast in the format of an issue, provides the principal issue in every case.  Example: WON the tenant who fails to pay the monthly rents must leave the apartment unit; WON the debtor unjustly refuses to pay his debt under a promissory note that he issued in favor of the creditor; WON the accused defrauded the complainant by selling a fake Rolex watch to him for the price of a genuine one.

Value of Pre-work  The need for pre-work is true for all kinds of presentations that are aimed to convince others to a certain point of view.  Legal writing is a sort of presentation. A lawyers needs to be able to make a convincing presentation of his case in the limited time that he is able to hold his reader’s attention. He needs pre-work to do this.  A frequent excuse in not doing pre-work is lack of time. Lack of time is not a valid justification for dispensing with pre-work.  Submitting your work not based on pre-work, submitting it for the sake of meeting a deadline means you do not care about its result. This attitude is the reason behind many failed legal writings and career.

Importance of Principal Issue  Your cases will be decided for or against you base on that issue.  You judge the significance of every argument that you want to use by its relevance to the principal issue. (Any argument not related to the principal issue would be useless and a waste of time)

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CHAPTER 4: GETTING AT THE FACTS OF THE CASE

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Facts of a Case  Do not leave the facts of the case until you have come to a complete understanding of what the case is about from every angle.

You can uses these strengths and weaknesses in developing your arguments.

Facts Set in Sequence  Put the events in the order of their occurrence to avoid confusion.  Spot the point where the story logically begins. Then, arrange after it the other events in the order of their occurrence.  Benefits of arranging the facts in proper order or sequence: o Facts are easier to understand. They follow a natural order or flow. The human mind is more at ease with such a manner of storytelling. o It is clear how each fact relates to or connects with others. Sometimes when you isolate facts they are not significant. Only when you view them along with related facts do some facts acquire significance. o It is clear where the respective versions agree and disagree. You will get a balanced appreciation of each opposing claim. o It prepares you for the work of writing up the facts of the case.  Another benefit is it enables you to create a compact index to the facts of the case. You do not have re-read your voluminous materials each time you want to be reminded of the important details of the case.

Random Notes vs. Summary  Purely random notes do not give you a complete picture. They are uncorrelated and are useful only for work done in one sitting. When you set aside and return to it after a long duration, random notes would have lost their correct meaning and you will have to start all over again. Random notes can never be used as permanent catalogue of the facts that you want to go back to repeatedly at various stages of the proceedings in a case.  Summary is a systematically prepared notes that adequately capture the entire factual terrain of the case, with the important points properly marked out. Summary serves as a detailed map in your hand, able to guide you in negotiating your way through the dispute involved. Facts seen through the Issue  When handling a new case, you need to go over the materials very quickly and determine preliminarily the principal issue or issues involved in the case. When you have an idea of what the principal issue is, that is when you could make a good job of extracting the relevant facts from your materials.  Take out the non-essential facts from your written materials.

Cluttered Facts  These are facts that contain much that is not connected to the principal issue. Relevant Facts Extracted  First, try to identify the legal dispute. Second, rewrite the legal dispute in the format of an issue. Using the issue as guide, peel away the facts that are not connected to the issue.  Sorting out the relevant facts from the irrelevant facts reveals some of the strengths and weaknesses of the documents.

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CHAPTER 5: KNOWING THE APPLICABLE LAW OR RULE Sources of Law or Rule  2 General Sources of Laws and Rules: o Statute law – laws and rules enacted by duly constituted rule-making authorities o Case law – decisions of courts and persons or agencies performing judicial functions; legal precedents that when invariable affirmed and used, become part of the law itself  2 Steps suggested in locating the right law and legal precedents o Identify the general nature of the legal dispute involved o Having become familiar with the facts of the case, search for legal precedents that have more or less parallel facts. Nothing is new in this world. There is hardly any new case that would have no similarity to a previous case that a court has once decided. (Diligence is key)  You also have rules derive from the wisdom of the common experience. Examples: o “Even the most trustful witnesses can sometimes make mistakes but such innocent lapses do not necessarily affect their credibility.” o “Inconsistency concerning a minor matter does not affect the credibility of complainant’s testimony.” Facts Reexamined  After having discovered the laws or rules that apply to your case, review your summary of facts and add some to the pool of relevant facts and omit others who appear to be irrelevant to the applicable laws, rules, and legal precedents.

CHAPTER 6: GETTING INTO THE ISSUES

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even weaken your position, while, dropping a relevant issue might be forfeiting that issue to your client’s loss.

Pinpoint the specific issues that the conflicting claims of the parties present. Put them in writing. General rule: Legal dispute, recast in the format of an issue, provides the principal issue in every case.

A List of All the Issues  There is an issue when the contending parties do not agree on a given point.  List all the issues the opposing claims of the parties present. Take note of what the parties agree on

Issues in Multiple Legal Disputes  If there are multiple legal disputes, there will be multiple principal issues (especially true in civil cases). In these cases, you should address each of the principal issues that the legal disputes present.  Occasionally, multiple legal disputes could converge into one controlling issue. (Example in the book is WON, Solis or Gomez, created the song. Spot the controlling issue, the resolution of which serves as the key to resolving multiple legal disputes.

Factual and Legal Issues  An issue is factual when the contending parties cannot agree that a thing exists or has actually happened. o Examples: WON the accused took and pocketed victim’s cell phone; WON the traffic officer demanded a bribe; WON the food served by the restaurant was spoiled  An issue is legal when the contending parties assume a thing exists or has actually happened but disagree on its legal significance or effect on their rights. o Examples: WON there is rape when the male organ merely touched the surface of the female organ, WON respondent committed grave misconduct in falsifying his timecard to collect overtime pay; WON cigarette companies are liable for deaths caused by smoking their products.

Subordinate Controlling Issues  The resolution of the principal issue in a case depends on how a subordinate issue raised in connection with it is resolved  Example: X bought facial cream called Maxim. She had allergies. Maxim claims that there are small prints on the label of the cream container that warned against possible allergy. o Principal Issue: WON Maxim violated X’s right to be sold only safe products o Subordinate Controlling Issue: WON Maxim has the right to market cosmetics that could cause harmful allergy to some, provided that the product label discloses this risk.

Correct Statement of the Issues  (1) Every issue should be correctly phrased. o We use WON as introductory words because by doing so, we automatically incorporate the opposing views. It makes for a fair statement of that issue.  (2) Issues should be in terms of what the plaintiff claims the fact to be (WON Ronald was her suitor) o Rationale: Plaintiff or the accuser in a case always bears the burden of proving the affirmative of his or her claims  General rule: Issues to be tried and decided are best defined in terms of those affirmative claims o Example: WON the defendant was negligent in driving his car; or, WON the defendant was careful in driving his car.  Exception: When the defendant, admits the facts constituting the claim against him BUT raises a defense that exempts him from liability under it.

Relevant and Irrelevant Issues  Not all issues raised in a case merit discussion and resolution. Only relevant issues matter. Only issues that when resolved determine the outcome of the legal dispute are relevant. o Example of relevant issue: WON Ronald and Julia are sweethearts.  Irrelevant issues have no value in a case even if they are debated and resolved since they are of no consequence to the outcome of the legal dispute. o Example of an irrelevant issue: WON Ronald is a good son (Good and bad sons commit rape)  You have to distinguish between relevant and irrelevant issues. Discussion of irrelevant issues would produce no advantage and may

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Example: WON the accused killed the deceased in selfdefense (3) Statement of the issue must be fair not slanted in favor of any party o Not fair: Whether Ronald used force and intimidation in raping Julia (This already assumes that he raped her) (4) Statement of the issues must be comprehensive, leaving no relevant point outside its embrace. o Comprehensive: WON Ronald raped Julia (5) Statement of the issues must be clear and specific o Too ambiguous: WON the law is invalid o Clearer: WON the Bouncing Checks Law violates the constitutional right against being imprisoned for nonpayment of debt. (6) Statement of the issue must capture the gist or essence of the specific violation of right that the defendant committed. o Insufficient: WON the debtor is liable to the creditor o Sufficient: WON the debtor unjustly refused to pay his debt under a promissory note that he issued in favor of the creditor o Insufficient: WON the respondent violated Section 3b of RA 3019 o Sufficient: WON the respondent in issuing to the owner an occupancy permit despite the lack of fire exits in the owner’s building violates Section 3b of RA 3019 o

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Threshold Issues  Those that could slam the door to any judicial consideration of the case in its merits.  Usually brought out by a motion to dismiss, motion to quash  Resolution of threshold issues takes precedence over the main legal disputes. o Example: WON the court has authority or jurisdiction to try and decide the rape case.

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CHAPTER 7: ROUGHING OUT THE ARGUMENT

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This is like drawing up your plans before actually constructing your building. This would give you an overall picture of your presentation and provide purposes and direction to your writing. 

Balanced Presentation  Structure of a balanced thesis presentation o A clear statement of your thesis (where you stand on the issue to be resolved o Arguments against your position but with an explanation that those arguments do not doom such position o Arguments in favor of your position o Appeal to the good sense of the person or persons who will resolve the issue  How do you guard yourself against the mindless approach that characterized many legal writings? o ANSWER: Complete your pre-work. Plan and rough out a balanced approach to your arguments before writing them up.  Use a balanced sheet format: so you could see a broad picture of how they look when you are finished o Thesis statement at the top (represents the goal you set for your arguments) o Arguments against you on the left column, and how these arguments do not doom your case. o Arguments in your favor on the right column. o Closing statement underneath the arguments, an appeal to the good sense of the reader

Every sound legal argument is a combination of the right rule and the right fact. o Rule statement: Jaywalking is punishable by law. o Case fact statement: X jaywalked. o Conclusion statement: X should be punished. 3 Kinds of Statements: o The rule statement: the statement of a rule that applies to a given fact or set of facts o The case fact statement: statement of the fact of a particular case that opens up such case or closes it to the application of the rule o The conclusion statement: conclusion that the rule applies or does not apply to the particular case

The Key Fact in Rules  The rule statement “Jaywalking is punishable by law” has a fact component which is “jaywalking”  The fact component of the rule statement is the key fact. It is a key fact because its presence in the case of X opens up such case to the application of the rule.  Absence of the key fact will make the rule statement inapplicable to the case. The Case Fact  It is the fact of the case which determines what rule will govern it. Meaning of “Rule”  The key fact of the rule will determine the conclusion. Sources of these rules: o Constitutional provisions: just compensation in eminent domain o Statutory provisions: ignorance of the law excuses no one o Rules of Court: an offer of compromised as an implied admission of guilt  Rule also includes case laws or legal precedents. They are the most convenient source of argument. In real life, no problem is new.  Rule also includes widely accepted truths that derive from logic, common sense, or even common experience.

Anatomy of Legal Argument  An argument is a reason you offer to prove your thesis or proposition. o Example: If Ronald really raped Julio how come Mario who lived nearby did not hear Julia’s outcry  A great bulk of legal arguments are in the mold of CLASSIC CATEGORICAL SYLLOGISM o Major premise, minor premise, conclusion o Arguing from common experience: People who lie cannot be believed. X lied in his testimony. X cannot be believed.

Roughed Out Arguments

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Arguments Against You: Vaginal lacerations usually found in rape victims were found in Julia Arguments in Your Favor: As a virgin Julia could have lacerations during consented sex. The lacerations found in her do not necessarily indicate rape Appeal to Your Good Sense: It is but fair that testimony inconsistent with common experience is not believed.

It is because Julia’s brothers would have killed Ronald if he went to Julia’s house to explain Argument is baseless o There is no fact to support their claim Argument is contrary to common experience o It goes against ordinary human experience. It is bizarre and cannot be believed. Argument is inconsistent with undeniable facts o Facts that cannot lie defeat mere assertions Argument is inconsistent with a prior claim o Persons who say one thing now and another thing later cannot be relied on to tell the truth o

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Creative Thinking  Let your subconscious mind take over the problem. Steps: o Be sure that your mind gets all the data and inputs about the case o Pose the problem to your mind o Forget about the case. Let your subconscious mind do the work. Go to sleep.

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Pre-work Reviewed  Steps: o Ascertain the legal dispute o Make an outline of the relevant facts o Identify the issues o Rough out your argument

Arguments That Build Up  Favorable testimony comes from a credible witness o Testimonies of relatives are regarded as partisan. Those with no bias and motive to testify falsely are excellent witnesses. (Medico-legal expert, Mario the farm owner)  The party’s version is inherently credible and consistent with common experience o Compatibility with common experience  All the elements or requisites of a valid claim or defense have been proved o Establishing all the elements of the crime of rape to warrant conviction Arguments That Destroy  Pointing out that the adverse party invoked the wrong rule or that they failed to prove the case fact component of their argument.  Arguments raised is irrelevant o Irrelevant when it does not help resolve the issue o Ronald is irresponsible. Being irresponsible does not make a man a rapist  Argument has little weight given the other considerations in the case o Your opponent has made a valid argument but you hasten to state that other considerations outweigh that argument o Ronald’s failure to explain immediately

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CHAPTER 8: INTRODUCING THE ISSUES

Simply mention the basic legal disputes that the claims of the parties produced  Lawyers often quote criminal information as part of their statement of the case – UNNECCESSARY unless the allegations in the information are in issue. Statement of the Facts  Describes the nature of the action and the proceedings it had gone through  Narrates the transaction or event that create the legal dispute and led to the filing of the suit  Do yourself and the court a favor of better understanding the issue and arguments by showing the conflicting claims of the parties.  Issues are a product of disagreement. Only by fairly showing the conflicting claims of the parties can the court or your reader truly understand the issues.  Rules of Court, Rule 44, Section 13(d) requires parties to include their conflicting claims in their respective statement of facts.  Purpose is to merely provide a background  TEST OF SUFFICIENCY: ability to enable the judge or the reader to understand the issue that you want him to resolve and the arguments that you adduce on those issues WIH MINIMUM words.  If the parties have conflicting versions, extract the facts solely from the direct testimonies of the witnesses from either side.  The direct testimonies of witnesses embody the versions that the parties espouse.  But when the cross-examination have done some damage to the testimony of your opponent’s witnesses, use these in the argument portion 

Write-up stage: You cannot submit your outline-argument to the court. It will not make any sense to the judge. Need for Introduction  You cannot just hit your reader with you point of view regarding an issue without telling him the circumstances of the case that brought about the issue.  Do not assume that the judge has the background facts. You cannot expect a judge to remember all the facts each time he reads a party’s pleading. o Attention span of human beings is limited o Hearings are piecemeal. Judge hears the testimonies of the various witnesses over some period of time. o Possibility that judge had gotten the facts wrong from past pleadings or during the hearing. You have to correct these wrong impressions by recalling the facts o Justices of an appellate court need to be apprise of the facts of the case because they did not hear the evidence. They rely on the lawyer’s summaries of them.  You also need to restate your understanding of facts with your client just to make sure that you have a shared understanding of the facts and to avoid misunderstanding.

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Sufficiency of Introduction  Put only as much background facts as are needed for an understanding of the issue that the parties present  Standard of Sufficiency o Statement of the Case  The purpose of the Statement of the Case is to provide a clear and concise statement of the nature of the action, a summary of the proceedings, any challenged order or decision issued, and other matters necessary to an understanding of the controversy  Keep it short. Do not include the service of summons, the holding of the pre-trial conference, number of witnesses presented by either side, the allegations of the parties in the pleadings.

Short Introductions  Introduction of incidental issues  It is essential to give a brief background of the facts and the issue to enable the court to recall what the case is about and appreciate the comment.

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Introduction in the reply must not repeat the elaborate introduction made in the petition. It must be lean and terse serving only as a reminder not a full repetition of what had been previously said CHAPTER 9: WRITING THE ARGUMENT

Medico legal officer did not find any bruise on her body Julia’s testimony that she walked home alone is contrary to common experience o Mario did not here any outcry at the time of the alleged rape One technique in presenting multiple points is to present them in numbered series o o

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Second part of the Write up stage: Putting flesh and color to your arguments and making your closing statement

Correct Conclusion Statement  Draw an inference that the fact of a particular case opens it up or closes it to the application of the rule that governs such case

Jump off Points  Start with an opening or a topic statement that signals or defines the direction of their argument. You can do this in two ways: o By briefly stating the opponent's claim with the intention of defining the area that your argument will attempt to assail o By stating your thesis or proposition, then support it with the argument that follows

Positioning Variation  Conventional Sequence: rule, fact, conclusion  You don’t always have to follow the conventional sequence. Your argument will make sense so long as you string along those three essential statements together regardless of their position.

Three Statements of an Argument  A legal argument is made up of three statements: the rule statement, the case fact statement, and the conclusion statement

Building Blocks of Argument  The building blocks of argument are the three essential statements

Persuasive Arguments  The awareness of the three essential statements is important because the effectiveness of your argument depends on how ably you write up each statement of your argument into a convincing part  Argument is all about convincing another to buy your point of view

Omitted Statement  You could omit from your arguments one of its essential statements WHEN that element is so evident that it goes without saying  Example: Someone lied about their age. You can omit “Falsehoods cannot be believed” as your rule statement  Danger: Many lawyers and student presume that their rule is evident, when in fact, they are misreading how their average readers think  In case of doubt: include all three essential statements

Convincing Rule Statement  Instead of just “Women will ordinarily not admit to being raped unless true,” rewrite it to a more convincing statement: o “It takes a lot of courage for any woman to cry out and testify that she has been raped. When she steps forward to confess what happened to her, she exposes herself to the humiliation of acknowledging that a man has ravished her body and violated her virginity.”

Closing Statement  Depart on a good note  Your closing argument should not appear to argue: Recall to your reader the truths that underlie every good decision in identical cases

Convincing Fact Statement  Build up your statement of the case fact when parties are unable to agree whether a key fact is applicable to the facts of the case.  Several arguments can be clustered to bring home just one major point: Julia’s testimony cannot support a judgment of conviction

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