Memorandum Writing (Dean Aquino)

UNIVERSITY OF THE CORDILLERAS B AR OPERATIONS 2011

MEMORANDUM WRITING Prepared by:

DEAN HONORATO AQUINO

Yakang-yaka mo ‘to ‘pre! (OR, HOW TO WRITE A MEMORANDUM IN THE BAR EXAMINATION ROOM)

Not too long ago, I was privileged to sit in a Board of Arbitrators where the disputants were the STRADCOM and the LRA. We were three. The Chair was ret. SC Justice B, and the other member was ret. Sandiganbayan Justice Q. Of the three, I was the only practitioner. During a lull in the proceedings, J. B told me, “Kayo namang mga practitioners, hwag naman kayong mag-file ng memorandum na sobra sa 15 pages. pages. Kitamo ngayon, sa aming edad, mahirap nang magbasa. ” The first rule of the memorandum writer is to make it easy for the reader. That should be your guiding principle, whatever style or form you follow. From the caption down to the prayer stay simple. Do not make it hard for the corrector. Don’t make him hate you.

Lawyers are fond of big words. Instead of saying “aver” they say “asseverate.” We are fond of bombast, lofty locutions, high-sounding words, pompous rhetoric. We are full of ourselves and we tend to parade our knowledge and vocabulary at every opportunity. In contrast, when the apostle Paul ministered to the early Christians he did not try to impress them. In his letter (or memorandum) to the Corinthians (1 Cor 2:1) he said, “When I came to you I did not come with excellence of speech or of wisdom declaring to you the testimony of God.” He is the greatest teacher of the Christian Church, and yet he spoke simply and wrote simply, using ordinary monosyllabic words.

STATEMENT OF FACTS In writing your memorandum you are supposed to omit the caption. You are supposed to start with the Statement of Facts. It is common practice to open with a Prefatory Statement, but that is nothing but  palamuti   palamuti  and I doubt if the judge or magistrate ever takes a sidelong glance at it. I think you will do well to omit it. The Statement of Facts is a summary of the important facts of the case. Some lawyers number their facts serially. That is good form, if the relevant facts are that many and the story is long. But if the story is short and simple, I find the numbers distracting.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

Somewhere in the Instructions  you are advised to be creative. Creativity in a lawyer’s work is always a plus, but not when it comes to stating the facts. In stating the facts be precise. To be precise it is suggested that you adhere to the presentation of the problem by the examiner. For purposes of the exam we will assume that the given facts are undisputed. There is a transcript of the Q & A testimony of the plaintiff, and another transcript of the Q & A testimony of the defendant. Notice that the testimony is limited to direct examination. No cross. So we can safely presume that both witnesses are telling the truth, and the facts set forth in their testimonies are undisputed. That simplifies our work. If the examiner gives us the facts what should you watch out for? I think what you should watch out for are the possible irrelevancies, details that have no bearing on the subject of the controversy. You may be expected to winnow the chaff from the grain. You can be selective, especially in a criminal case. You can omit those facts that are contrary to what you want the court to perceive as the truth. No point in helping the opposing party build his case against you. You are not the judge. You are an advocate. And you are there to win. If the judge cannot find the truth in your submission, let him look for it elsewhere. If he fails to discover the truth, perhaps it’s not what is called “the judicial truth.” Either that or he’s doing a sloppy job of judging. In preparing a trial memorandum, an experienced lawyer saves the Statement of Facts for last. (But of course it comes out first in the final form.) Having marshaled his arguments, in accordance with his theory, he is now ready to be selective in his Statement of Facts. He includes only those facts that are favorable to his client. You can do that too. You will be provided with a scratch pad where you can make a rough draft. You start with your Arguments and end up with your Statement of Facts. Of course, in the final form the Statement of Facts comes first, followed by the Issues. In doing your Statement of Facts do not take to heart the advice in the Instructions to be creative. You can be creative but not by inventing events or changing the facts. You can be creative in selecting and spotlighting the facts favorable to your cause or defense. Do not be an artist and start in media res, or in the middle of the action and then flash back. And do not get carried away and fast forward. This is not a movie script you’re writing. You have to set forth the facts consecutively, as they happened. It is the practice to cite the exhibits (documentary evidence) and the transcript of stenographic notes or tsn (testimonial evidence) through the use of footnotes or, in the case of the courts, end notes. But obviously you cannot have footnotes or end notes in a handwritten memorandum.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

You can show that you are not telling a story from the top of your head by occasionally citing the exhibits and the transcript of stenographic notes. In the sample problem, you are given a tsn  of the direct examinations of the plaintiff and the defendant. You can cite the relevant Q & A in the tsn  and enclose the citation in a parenthesis. Example: (Tsn, November 15, 2011, p. 2, 2 nd  to the last Q &A, plaintiff testifying.) In an actual memorandum the relevant Q & As are quoted copiously to convey the full flavor of the relevant testimony. But you do not have that luxury in the exam. It is enough to cite the tsn and enclose the citation in a parenthesis.

STATEMENT OF THE CASE A Statement of the Case is different from a Statement of the Facts. A Statement of the Case is standard when the case has moved up the judicial ladder and is now on appeal or on certiorari. It tells the story of the case from the time it was initiated in the lower court and traces its journey to the higher court. But since what you will be asked to write is a trial memorandum, it is presumed that the case is still before the trial court, and therefore there is no need for a Statement of the Case.

ISSUES There should be a tight correspondence between the Issues and your Arguments. In the Instructions you are advised not to put forward more than four (4) arguments. Therefore, you should have no more than four Issues. It is my practice to formulate my Arguments ahead of the Issues. After I have marshaled my Arguments, it becomes a simple matter to rephrase them into Issues. The danger in formulating the issues first is that you might just shoot yourself in the foot, i.e., you might incautiously create an issue for which you have no argument, or where your argument is less than convincing. Thankfully, you can formulate your Arguments ahead of the Issues in the exam, because you will be given a scratch pad where you can make a rough draft. It goes without saying that in the final form the Issues precede the Arguments. When you transfer your draft to the final answer sheet be sure that you lead off with the Statement of Facts, followed by the Issues, and then the Arguments, in that order.

If your first argument is “THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE,” it should be easy to rephrase it as your Issue No. 1: “WHETHER OR NOT THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENC E.” Keep it simple. There are two (2) ways of stating your Issues. The first is what I call the “whether-whether” form. Example: “WHETHER OR NOT THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE.”

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

Or, you can also couch the issue in the form of a query: “WA S THE DEFENDANT GUILTY OF GROSS NEGLIGENCE?” What is important is if you choose one form you stick with it up to the end. Personally, I prefer the “whether -whether” form. If you ask a question, the reader might instinctively form a premature answer before he has read your arguments, and the answer might not be to your liking. In actual practice, we do not just pull the issues out of thin air. Every case has to pass through the mandatory pre-trial, and in the pre-trial the issues are formulated. They are then included in the pre-trial order and they serve as guideposts for the trial. In the sample case, however, there is no mention of a pre-trial or a pre-trial order. So it is up to you to formulate your issues –  issues for which you have ready arguments.

 A R G U M E N T S The arguments are basically a restatement of the issues from the point of view of the advocate. So, if the first issue is “WHETHER OR NOT THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE,” the first argument on the part of the plai ntiff would predictably be: “THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE.” On the other hand, the defendant is expected to espouse the negative of the issue by arguing: “THE DEFENDANT WAS NOT GUILTY OF NEGLIGENCE; ON THE CONTRARY, HE EXERCISED ALL DUE D ILIGENCE.” In the Instructions, the examiner is supposed to provide you with a wealth of relevant laws and jurisprudence to help you in discussing your arguments. If that happens in the actual exam feel free to help yourself to the applicable provisions and decisions generously shared. It would be ideal if in the discussion of each argument you can cite (a) the relevant facts previously stated in the Statement of Facts, (b) the applicable statute or provision of law and a (c) decision or two of the Supreme Court. You can go beyond the cited provisions and decisions, and you will hopefully be credited for your “creativity.”

Ten Commandments: 1. Break up your discussion into bite-size paragraphs. Long paragraphs look like long monologues and have the same effect. Drowsiness. Multiple paragraphs denote multiplicity of ideas.

2. Stay meek and humble. In addressing the court, do not just say “This court . . . .” Always say “This Honorable Court . . . ‘ with a capital “C.”

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

3. In referring to the case at hand, simply say “In the case at bar . . .” Do not say “In the case at bench . . .” as if you are a magistrate.

4. Be respectful. Present your conclusions with “With all due respect . . .” or “It is respectfully submitted that . . . or “It is most respectfully submitted that . . .” 5. Likewise, in pulverizing the opposition you will lose nothing by doing it gently. “We beg to differ . . . .” We beg to disagree . . . .” Harsh language will get you nowhere. 6. In your discussion keep caps to a minimum. Caps in a pleading have much the same effect on the reader as caps in a text message. You don’t want to sound as if you’re yelling at the other party.

7. Exclamation points denote excitement. It’s unprofessional to telegraph your excitement by using exclamation points, especially double or triple exclamation points. 8. Avoid swardspeak. Do not use words like “bongacious” or “unkabogable.” You are in the bar exam room, not in some beauty parlor. 9. With respect to questions of jurisdiction over the subject matter, do not cite the Rules of Court. Remember that jurisdiction is substantive, not merely procedural.

10. Do not refer to the Civil Code as the “New Civil Code.” First, it’s not new at all. It is a senior citizen. More importantly, it is not legal. Article 1 of the Civil Code expressly provides how the code should be cited, and definitely it is not as “New Civil Code.”

PRAYER Lawyers are a pious lot. In everything they do they always end up with a prayer. Whether it be a pleading or a motion or a memorandum that they are drafting or dictating they never forget to wrap it up with a supplication. This is where you restate the relief or reliefs you previously prayed for in your Complaint or Answer. It is good form to break up your prayer into numbered paragraphs. You may add a general or catchall prayer for possible reliefs that you might have failed to mention. “Other reliefs just and equitable are also prayed for.” If you can no longer recall the prayer in your Complaint or Answer, you can simply say “It is most respectfully prayed that judgment issue as prayed for in the Complaint (or Answer).”

“Wherefore” means “Premises considered.” Use one, not both.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

SAMPLE

“(Caption omitted)

MEMORANDUM FOR THE PLAINTIFF

PLAINTIFF, by counsel, to this Honorable Court, most respectfully submits this Memorandum.

I. STATEMENT OF FACTS

Plaintiff is a lowly Ilocano peasant. As lowly as he is, he is an independent farmer. He owns the land from which he ekes out a living. He is the sole and absolute owner of a parcel of agricultural land situated in Barangay Baraca, Municipality of Calasiao, Pangasinan. The land has an area of 6,377 square meters, more or less, and is covered by Tax Declaration No. ARP No. 014-00243 of the Office of the Municipal Assessor of Calasiao, in the name of his late father, Juan Tutri. On January 21, 2011, without any warning, the Defendant, together with armed cohorts, by the use of force and intimidation, barged into the said parcel of land, cut and destroyed a wide swath of the sugar cane crop, and forcibly and feloniously excluded the Plaintiff therefrom.

II. I S S U E S I. WHETHER OR NOT THE PLAINTIFF HAS PROVED HIS CAUSE OF ACTION BY A PREPONDERANCE OF EVIDENCE AS REQUIRED BY LAW. II. WHETHER OR NOT THE ISSUE OF OWNERSHIP RAISED BY THE DEFENDANT IS A VALID DEFENSE IN AN ACTION OF FORCIBLE ENTRY. III. WHETHER OR NOT THE FAILURE OF THE DEFENDANT TO VERIFY HIS ANSWER IS FATAL.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

III. A R G U M E N T S

I. THE PLAINTIFF HAS PROVED HIS CAUSE OF ACTION BY A PREPONDERANCE OF EVIDENCE AS REQUIRED BY LAW.

The first paragraph of Article 539 of the Civil Code provides:

“Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by laws and Rules of Court.”

The plaintiff testified to prove his averments in his Complaint for Forcible Entry. He identified Exhibit “ A,” which is the Tax Declaration in the name of his late father, Juan Tutri. (Tsn, March 5, 2011, p. 2, last 2 Q & As) To prove his actual, physical possession he also presented copies of realty tax receipts for the years 2006 up to 2010, as Exhs. “ B ,” “B -1,” “B -2,” “B -3” and “ B -4.” (Ibid ., p. 5, 1st  Q & A) The plaintiff further testified that he and his family were forcibly dispossessed of the subject property by the defendant and his armed cohorts on January 21, 2011. Wielding boloes, the defendant and his cohorts cut and destroyed a wide swath of the sugar cane crop then standing on the land. Using a mini-backhoe they also began dumping soil and/or filling materials on the southern section of the subject parcel of land. xxx

xxx

xxx

II. THE ISSUE OF OWNERSHIP RAISED BY THE DEFENDANT IS NOT A VALID DEFENSE IN AN ACTION FOR FORCIBLE ENTRY. xxx

xxx

xxx

P RA YE R

WHEREFORE, it is most respectfully prayed that Judgment forthwith issue:

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

1. Ordering the Defendant to vacate the parcel of land described in paragraph 3 of the Complaint; 2. Ordering the Defendant to pay the Plaintiff the value of the sugar crop that he destroyed in the amount of P20,000.00. 3. Ordering the Defendant to pay the Plaintiff the actual damage to the land caused by the dumping of soil and/or filling materials thereon by the Defendant in an amount not less than P20,000.00. 4. Ordering the Defendant to pay the Plaintiff the reasonable value of the use and occupation of the subject parcel of land at the rate of P30,000.00 per month, starting from January 21, 2011, until the Defendant has completely vacated the property. 5. Ordering the Defendant to pay/reimburse the Plaintiff attorney’s fees in the amount of P50,000.00, as well as costs of suit. Other reliefs just and equitable are also prayed for. Quezon City for Calasiao, Pangasinan, November 5, 2011.

 AQUINO & ASSOCIATES (Counsel for Plaintiff) 124 Cordillera St., Sta. Mesa Heights Quezon City By: HONORATO Y. AQUINO PTR No. IBP No. Both issued at Baguio City on 1/7/11 Roll No. 18537 Tel. & Fax No.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

EXPLANATION (Pursuant to Section 11, Rule 13, 1997 Rules of Civil Procedure)

Due to constraints of time, distance, and manpower, which make it impracticable for the undersigned to served copy hereof on counsel for the defendant by personal service, said copy is being served by registered mail in accordance with law.

HONORATO Y. AQUINO

SERVED COPY by Reg. Mail w/rc:

Atty. Joselino A. Viray (Counsel for Defendant) BINCE, VIRAY & ASSOCIATES 3/F St. Francis Bldg., McArthur Highway Urdaneta City.”

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

LANGUAGE In the essay-type component of the bar exam, your English is supposed to account for 20% of your grade. That sounds reasonable. What I am afraid of though is that your grammatical lapses might be too atrocious that the examiner will conclude that you do not deserve to become a lawyer. In my book, an examiner who flunks an examinee who says “the court have” or “the courts has” cannot be blamed. One idea is what I call DECLARATIVE IS SUPERLATIVE. Declarative sentences are punchy. They don’t put you to sleep, like the SCRA. They wake you up. They might make you sound elementary, but then they also make you sound sure of yourself and certain of what you are saying. They make you sound as if you mean business. Every holdupper worth his salt knows this. He delivers his message with the force of a pistol shot. “Hold-up ito!” The message of Pres. Reagan to Marcos at the height of Edsa 1, delivered by Sen. Paul Laxalt of Nevada, is a prime example: “Cut, and cut cleanly.” And the response of Marcos was as brief and to the point. “I am disappointed.” Remember the three words that kept the underground movement alive during the dark years of World War II when it seemed we were abandoned by Mother America and the rest of the world? “I shall return.” We also have a good example in ancient history. Veni. Vedi. Vici. I came. I saw. I conquered. (But Dominique Strauss-Khan has his own version. Vedi. Vici. Veni. I saw. I conquered. I came.)

And of course, everybody is familiar with “ Kayo and boss ko!” At this point it is too late to dwell on correct grammar. That is the job of the CHED and the DEP-ED. But it might help if you can avoid some common errors.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

COMMON ERRORS accordingly

“Accordingly” is different from “according to” and should not be used interchangeably with the latter. It means “in accordance with,” or “appropriately.” “I talked to the Barangay Chairman and accordingly the complainant filed his complaint yesterday” – is wrong. It should be: “According to the Barangay Chairman the complainant filed his complaint yesterday” or “The complainant filed hi s complaint yesterday according to the Barangay Chairman.” When someone does something good with reference to some rule or norm, or conducts himself properly, “accordingly” is the correct form. Thus, “After the accused was informed about the authority of the barangay officials, he behaved accordingly.” as the judge said; like the judge said

While both forms mean exactly the same thing, it’s a question of context: the first form sounds stiff in conversation, and the second form sounds too informal in a formal legal memorandum. at the end of the day There is nothing grammatically wrong with this cliche but it is a cliché and has been so overworked by P-Noy and his coterie of advisers that all life has been squeezed out of it. Same fate as “ worst-case scenario” and “ move on.” And “ for the longest time.” And “ from the get-go.” at this point in time  At this point ; at this time. These are better forms, although admittedly even native speakers sometimes find themselves using the longer form. But whether correct or not, it is certainly overworked to the point of nausea. based from A base is something you build on, not something you move away from, or shun. So it should be “based on” not “based from.” dedma Actually, this is a combination of two words. Ded is short for dead or  patay , and ma  is short for malisya. In the vernacular,  patay-malisya  refers to the behavior of someone who acts as if something has not happened or someone does not exist. Dedma is not English. So you cannot say that “The court should dedma the motion to dismiss.” That would be a sign of illiteracy.

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every day; everyday

“Every day” means just that, every day, day in and day out. “Everyday,” however, is an adjective that means ordinary, nothing special. Thus, “Everyday att ire is not allowed in the courtroom.”  full-fledged; full-pledged

The correct form is the first, as in “full -fledged lawyer.” The second form may be correct if what is meant is someone in hock up to his eyebrows. holistic Yes, there is such a word, and yes, it does mean wholistic, meaning as a whole, but this is one of those buzzwords that have lost their meaning from sheer overuse. The speaker may think he sounds like a technocrat, but actually he comes across as just plain lazy. It may work the first time, and maybe a second time, but beyond that I feel like reaching for my sumpak . it’s, won’t, don’t, isn’t, shouldn’t , you’re not , we’ve been, etc.

Avoid contractions. The test is billed essay-type to distinguish it from the MCQ component. But it is not essay-writing. It is legal memorandum/opinion writing, a very formal genre. So don’t get lovey -dovey with the examiner. You might not be his “type.” kind of

I am “kind of” tired hearing “I am kind of tired.” I am kind of . . . he is kind of . . . she is kind of . . . it is kind of . . . may sound like a cute filler noise in spoken English, like “like’ and “you know,” but is totally out of place in an examination. may be; maybe

“The petition for writ of amparo may be  filed with a Justice of the Sandiganbayan. Maybe he has jurisdiction to entertain the petition.” If one has difficulty distinguishing between the two forms, maybe it would be best to completely avoid the second form, especially in an examination. It means “perhaps.” The wr iter is not sure – hardly the kind of impression that an examinee wants to make on th e examiner. request for 

If “request” is used as a noun, as when you make or submit a “request for a refund,” then it is all right to add “for.” But if it is used as a verb, the “for” becomes superfluous. Just say, he “requests a refund.” resulting to

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

Common error of radio and TV field reporters. Should be “reckless imprudence resulting in (not to) serious physical injuries.”  SC, LTFRB, COMELEC, BUCOR, etc. As much as possible, avoid initialisms like SC, LTFRB, IBP, etc., as well as acronyms like COMELEC, BUCOR, PAGCOR, etc. Your fondness for alphabet soup might be construed as plain laziness.  self-accident This is one of those inventions of Filipino radio and TV newscasters. It is supposed to mean an accident where only the victim is involved. No such word in English. At least not yet.  sufficient enough If something is sufficient, it is enough. Sufficient enough is sobra na. Nakakasuka na! tactical interrogation There is nothing wrong with the grammar. But it is a whole lot worse than fractured grammar. Whenever police top brass say that their witnesses are not available for interview because they are “still undergoing tactical interrogation,” I feel like shooting them –  the police, not their witnesses. This is nothing less than gross ignorance that is a ground not only for dismissal but for criminal prosecution. There is no such thing as tactical interrogation in police investigations. Tactical interrogation is a military procedure when an enemy is captured in the course of hostilities. But even a captive combatant in a military operation is entitled to some respect as a POW. He cannot be forced to divulge information other than his name and rank. In a police investigation, it is now mandatory to “Mirandize” the suspect. Instead of interrogating him, the police inform him that it is his right to remain silent. That is the exact opposite of “tactical interrogation.” trashslide We should be proud of this word – or not. It comes from the familiar “landslide.” We should be proud that the summer capital, or its officials anyway, made it current. It means a mountain of trash rampaging downhill and burying everything and everyone in its path. Wherefore, premises considered

That is what is called a tautology, a needless repetition. “Wherefore” and “premises considered” mean the same thing.

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GREEN NOTES IN MEMORANDUM W RITING  Prepared by: DEAN HONORATO AQUINO

THE BARRISTERS’ CLUB OFFICERS: Virgel Amor Vallejos (Chancellor) Seychelles June M. Doringo (Secretary) Janilet Mishelle R. Carillo (Treasurer)  Art Miguel B. Sanlao and Angelito Velasquez Jr. (Business Managers) Rachelle May Gallego (PRO) Paul Dean Mark Pila (SSG Representative) Brenda Filipinas Danganan (Ex-officio)  Atty. Isagani Calderon (Adviser)  Atty. Reynaldo U. Agranzamendez (Dean,College of Law)

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