PrimerOnBarExamTS 2016.pdf

JURISTS BAR REVIEW CENTER™ PRIMER ON BAR EXAM TACTICS & STRATEGIES Prof. Manuel R. Riguera

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Fact-based essay questions are the norm in the bar examinations.

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SC 2013 Bar Bulletin 1

The basic elements of problem solving that the Examiners shall particularly look for are the examinee's (FLIA): (1) proper understanding and appreciation of the facts, particularly of the components or details that can be material in resolving the given problem; (2) his or her appreciation of the applicable law/s that may come into play; (3) recognition of the issue/s posed; and the ( 4) resolution of the issues through the analysis and application of the law to the given facts. The examinee‘s presentation and articulation of his or her answer shall also be given weight. •

SC 2013 Bar Bulletin 1, other SC bar issuances, and advice of former bar examinees, examiners, and law professors emphasize the importance of LOGIC in the bar exam.

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The bar examinee must be logic-driven or argument/driven, not conclusion-driven.

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Your answer should demonstrate your ability to apply the law to the given facts, and to reason logically in a lawyerlike manner to a sound conclusion from the given premises.

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Prof. Reynaldo Geronimo, former bar examiner: The examiner can give you credit for an answer that is not exactly correct, but is well-written and logical. Remember: Your answer will not be graded on whether you are right or wrong but on how you present your case.

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PRACTICAL LOGIC FOR THE BAR EXAM

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Logic has many branches. The tools of logic which we will be using are inductive reasoning, deductive reasoning, and analogical reasoning (DIA). INDUCTIVE REASONING: Reasoning from the particular to the universal. In bar, reasoning from the facts to the rule/s.

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DEDUCTIVE REASONING: Reasoning from the universal to the particular. In bar, applying the rule/s to the relevant facts. ANALOGICAL REASONING: Reasoning from an identical/similar situation to the present situation. In bar, reasoning using precedents, textbook examples and Q&As. •

Flow chart of analysis and argumentation LOGICAL TOOLS  ESSAY QUESTION  ISSUE/RULE  RESOLUTION/CONCLUSION  WRITTEN ANSWER

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Analysis and Argumentation ANALYSIS: The process of determining the resolution and conclusion (answer) using the tools of logic. ARGUMENTATION. The process of presenting the answer in a logical and organized form.

READING & ANSWERING A BAR ESSAY QUESTION: OUTLINE OF STEPS 1. PREPARE A CRARC (CONCLUSION, RULE, APPLICATION, RESOLUTION & CONCLUSION) MATRIX. THE MATRIX WILL BE USED TO ANALYZE, OUTLINE AND THEN PRESENT THE ANSWER. An outline is indispensable in coming up with a logical and organized answer. Jurists has developed the CRARC matrix to assist the examinee in outlining and writing a logical and organized bar exam answer. The biggest mistake many examinees commit is to begin writing the minute they finish reading the question in the hope that as they go along thoughts will come to them and the writing will compose itself. Answers written without planning tend to be too long, unfocused, and disorganized. Outlining the answer before writing gives the test-taker an opportunity to think through the question, discard irrelevant issues and concepts, focus on the critical facts, and organize the answer in a logical fashion. SC recommends outlining: As a good rule to follow, draw an outline of the proposed answer - after reading the question and understanding what it requires, take some time to note (on a scratch paper) a brief outline of the proposed answer. The examinee can use the questionnaire but not the exam booklet to do the outline. The outline allows him/her to systematically present all the pertinent information in a logical order. (SC 2013 Bar Bulletin 5, 2014 Bar Guidelines). •

Jurists CRARC Matrix

Jurists has developed the CRARC matrix to assist the examinee in outlining his answer. The CRARC matrix is superior to existing matrixes or formats (like IRAC) since the examinee may use it for the triple purpose of analyzing the bar exam question, outlining, and then presenting his or her answer.

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JURISTS CRARC MATRIX Call & Immediate Issue/Conclusion Core Issue/Resolution Rule Application

CALL: The call is the last sentence of the problem which asks a question or instructs the examinee to do something (e.g., decide, resolve, etc.) IMMEDIATE ISSUE: That which is patent or evident from the question. Usually in the sentence/s immediately preceding the call. CORE ISSUE: The core or underlying issue. The core issue of a problem is an issue which presents a question of law and whose resolution would determine the conclusion to be reached by the examinee. It is often a restatement of the applicable rule. Unlike the immediate issue , the core issue is not immediately apparent from the question or problem. RULE (SJD): The applicable rule or law or legal basis. It may be a statute, rule, or regulation; or jurisprudence; or a well-settled legal doctrine or concept. APPLICATION: The application of the rule to the relevant facts of the question. RESOLUTION: The response to the core or underlying issue. CONCLUSION: The response to the call/immediate issue 2. READ THE CALL & LOOK FOR THE IMMEDIATE ISSUE OF THE QUESTION. WRITE DOWN IN CRARC MATRIX. •

There may be more than one call. Mark each call with numbers to avoid overlooking them in your answer.

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Illustration (08 Remedial Bar Q) Domenico and Gen lived without the benefit of marriage for 20 years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. CALL: Decide. IMMEDIATE ISSUE: Does Gen have the legal personality to file a petition for letters of administration?

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3. READ CAREFULLY THE FACT-SETTING TWICE. ENCIRCLE THE PARTIES AND UNDERLINE WHAT APPEAR TO BE PRIMA FACIE RELEVANT FACTS. THIS WILL GIVE YOU HINTS/CLUES AS TO THE CORE ISSUE/APPLICABLE RULE/S. In your second reading, look for fact patterns or thematic facts which will trigger the applicable rule or the core issue. Illustration: Domenico and Gen lived without the benefit of marriage for 20 years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. CORE/UNDERLYING ISSUE: Does a person who had cohabited with another have an interest in the properties acquired during the cohabitation? 4. IDENTIFY THE APPLICABLE RULE & THE CORE ISSUE. WRITE IT DOWN IN THE MATRIX. When you have spotted the core issue, it means that you already know more or less the applicable rule or at least have an idea as to what the applicable rule is. Here the applicable rule is Art. 147/148 of the Family Code. Art. 147/148, Family Code: When a man and a woman cohabit together without the benefit of marriage, the property acquired by them shall be governed by the rules on co-ownership. 5. APPLY RULE TO CORE ISSUE TO COME UP WITH RESOLUTION. WRITE IN CRARC MATRIX. 6. INDICATE CONCLUSION (RESPONSE TO CALL/IMMEDIATE ISSUE) IN CRARC MATRIX. Call and Immediate Issue/Conclusion Core Issue/Resolution

Gen have legal personlty to file a pet for LOA? Yes

Rule

Person who cohabited with another have interest in prop acquired by them? Yes Prop acquired by persons cohabiting -> co-ownership

Application

Lived together w/o marr 20 yrs, co-owner of props, interest

Note that in inputting the data into the Jurists CRARC matrix, you use keywords, abbreviations, and shorthand notations so as to save time. 7. PRESENT ANSWER USING CRARC FORMAT. PRESENTING (PACKAGING) YOUR ANSWER Jurists 4-Paragraph Format (CRARC) All rights reserved by Jurists Review Center, Inc. (JRCI), 2016. This work is the intellectual property of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, including proceedings with the Office of the Bar Confidant. Primer on Bar Essay Exam Tactics & Strategies by Prof. Manuel R. Riguera for Jurists Bar Review Center ™

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1st paragraph: Conclusion. 2nd paragraph, the applicable rule. 3rd paragraph, the application of the rule to the relevant facts. 4th paragraph. Resolution & Conclusion. Domenico and Gen lived without the benefit of marriage for 20 years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. 1st Paragraph: Conclusion The opposition to the petition for letters of administration on the ground that Gen has no legal personality to file it is denied. Conclusion should be directly responsive to the call/immediate issue. 2nd Par: Rule/s Under the Family Code, a person who has cohabited with another is a co-owner of the properties acquired during the cohabitation and thus has an interest in the estate of the other and a legal personality to file a petition for letters of administration over such estate. 3rd Par: Application to Relevant Facts Here Domenico and Gen had lived without the benefit of marriage for 20 years and had purchased properties together. 4th Par: Resolution & Conclusion Hence Gen is a co-owner of the properties she and Domenico purchased together and therefore has an interest in his estate [Resolution]. Thus she has the legal personality to file the petition for letters of administration and hence the opposition should be denied [Conclusion]. •

ECHO METHOD: In writing your conclusion, adopt the call’s/immediate issue’s wordings. Was the dismissal order of the Regional Trial Court correct? No, the dismissal order of the Regional Trial Court was not correct. 2nd Paragraph STATUTE “Under the Civil Code provisions on Property...” “Under the Insurance Code...”

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“Under Rules on Criminal Procedure...” JURISPRUDENCE “In a case involving similar facts, the Supreme Court held that …” “The Supreme Court has held in Neypes v. Court of Appeal that …” “The Supreme Court has held that…” WELL-KNOWN LEGAL DOCTRINE OR RULE “Under the doctrine of last clear chance” “Under the doctrine of election of remedies” “Under the Best Evidence Rule” “Under the Statute of Frauds” •

TECHNIQUE OF RULE PROXIMITY: Phrase your rule paragraph in such a way that it directly addresses the call/immediate issue. ILLUSTRATION OF A REMOTE RULE:

No, the argument of the bank that the safe-deposit box is not confidential since it is not a bank deposit is not correct. Under the Law on Banking, the business of banks is imbued with great public interest and banks have the duty to exercise utmost diligence and care in their transactions with bank. Here the safe-deposit box and its contents are in the custody of Federated Bank. Hence the safe-deposit box and its contents, including the LTCP, are confidential and thus the argument of Federated Bank is not correct. Answer using technique of rule proximity No, the argument of the bank that the safe-deposit box is not confidential since it is not a bank deposit is not correct. Under the General Banking Law, properties in the custody of a bank even if not a bank deposit are confidential and cannot be disclosed without order of a competent court. Here the safe-deposit box and its contents are in the custody of Federated Bank. Hence the safe-deposit box and its contents, including the LTCP, are confidential and thus the argument of Federated Bank is not correct. •

TECHNIQUE OF RULE ACCENTUATION: The tenor/stress of the rule should directly support your conclusion.

ILLUSTRATION: All rights reserved by Jurists Review Center, Inc. (JRCI), 2016. This work is the intellectual property of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, including proceedings with the Office of the Bar Confidant. Primer on Bar Essay Exam Tactics & Strategies by Prof. Manuel R. Riguera for Jurists Bar Review Center ™

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The Labor Arbiter does not have jurisdiction over the case. Under the Labor Code, the Labor Arbiter has jurisdiction over claims arising from employeremployee relationship. Here the claim does not arise from employer-employee relationship since such relationship had ended upon the resignation of the respondent from the company. Hence the Labor Arbiter does not have jurisdiction over the case. Improved version The Labor Arbiter does not have jurisdiction over the case. Under the Labor Code, the Labor Arbiter does not have jurisdiction over claims which do not arise from employer-employee relationship. Here the claim does not arise from employer-employee relationship since such relationship had ended upon the resignation of the respondent from the company. Hence the Labor Arbiter does not have jurisdiction over the case. ANALOGICAL REASONING: Reasoning from identical or similar situations. If a previous identical or similar situation has conclusion X, then the present situation should also have conclusion X. Primarily analogical reasoning relies on precedents or jurisprudence. If the facts of the essay question are similar to a decided case, then the holding of the decided case may be used as the conclusion/resolution of the essay question. ANATOMY OF A CASE DIGEST •

San Luis v San Luis, G.R. No. 133743, 6 February 2007: FACTS: Gov. San Luis married Ms Corwin in 1968. In 1973, Corwin divorced San Luis in the USA. San Luis got married to Felicidad in 1974. They lived together and acquired property. San Luis died in 1992. Felicidad filed a petition for letters of administration of the estate of San Luis. Some of San Luis’ children filed an opposition to the petition for letters of administration contending that Felicidad is not the legal wife of San Luis and thus has no legal personality to file the petition. Does Felicidad have the legal personality to file the petition? HELD: A person who has cohabited with another even without the benefit of marriage has the legal personality to file a petition for letters of administration of her partner’s estate. RATIO DECIDENDI: Such a person has an interest in the estate of the other as a co-owner pursuant to Article 147/148 of the Family Code. Illustration (08 Remedial Bar Q)

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Domenico and Gen lived without the benefit of marriage for 20 years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. CHoRC Format: Conclusion, Holding, Ratio Decidendi, Conclusion. 1st Paragraph: Conclusion The opposition to the petition for letters of administration on the ground that Gen has no legal personality to file it is denied. 2nd paragraph: Rule (SC holding and ratio decidendi) In a case involving similar facts, the Supreme Court held that person who has cohabited with another without the benefit of marriage has a legal personality to file a petition for letters of administration over the latter’s estate. The reason is that she has a legal interest in the estate being a co-owner of the properties acquired pursuant to the Family Code. Hence the opposition to the petition on the ground that Gen has no legal personality to file the same should be denied. •

In citing a decision, it’s best to add the ratio decidendi in order to obtain maximum points. In a case involving similar facts, the Supreme Court held that person who has cohabited with another without the benefit of marriage has a legal personality to file a petition for letters of administration over the latter’s estate. The reason is that she has a legal interest in the estate being a co-owner of the properties acquired pursuant to the Family Code. (Ratio decidendi in italics). 3-paragraph CHoRC Format in analogical reasoning: Note that in analogical reasoning from a precedent, a 3-paragraph format is used. No need for application since the facts of the precedent are made clear to be the facts of the bar problem: “In a case involving similar facts, the Supreme Court held that …” Instead of Not infrequently bar examiners substantially base their questions from SC cases.

Fact pattern or thematic facts The fact pattern is put in the question by the examiner himself. These are the clues which you look out for in order to unravel the applicable rule/precedent. The fact pattern is the key which will unlock the answer to a bar exam question. The key to issue/rule spotting is to practice, practice, and practice. If you do you will see fact patterns repeat themselves over and over and over again. Thus, issue spotting becomes easier and easier. Passive study alone is not adequate preparation for the bar. •

TECHNIQUE OF INTERLOCKING KEY CONCEPTS

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The 4 paragraphs should fit or interlock logically and clearly by using interlocking or common key concepts or words. A common mistake of examinees is to use one key concept in the second paragraph and another one in the third. ILLUSTRATION Pedro filed an action for recovery of title over land against Dencio. Dencio filed an answer in which he raised the defense that he was the owner of the land. The trial rendered judgment in favor of Pedro, which judgment became final and executory. Later Dencio, claiming that he was a builder in good faith, filed a complaint for recovery of necessary expenses over the land against Pedro. Pedro filed a motion to dismiss the complaint. Should the complaint be dismissed? •

Example of answer with no/weak interlock Yes, the complaint should be dismissed. Under the Rules on Civil Procedure, a compulsory counterclaim not set up is barred. Here the complaint arose out of the first case for recovery of title over land. Hence the same is barred and thus the complaint should be dismissed.

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Reformatted using Technique of Interlocking Key Concepts. Yes, the complaint should be dismissed. Under the Rules on Civil Procedure, a compulsory counterclaim not set up is barred.

Here Dencio’s complaint for reimbursement of necessary expenses is a compulsory counterclaim because it arose out of the first case for recovery of title and it was not set up in the first case. Hence the same is barred and thus the complaint should be dismissed. •

Shotgun answers should be avoided. The SC has explicitly criticized the use of shotgun answers by examinees. An actual, unedited example of a shotgun answer is shown below: No. There was no proper joinder of causes of action.

Under the Rules on Civil Procedure, for a proper joinder of causes of action, the following requisites must be complied with: (1) it must comply with the rules on joinder of parties; (2) must not be one under special civil action or action govern by special rules; (3) one of the action must be within the jurisdiction of the RTC if there are different venues and (4) the claim is for money, the aggregate value or totality rule shall apply. In the present case, the causes of action which is collection of P300,000 in Manila and recovery of title of real property in Iloilo City with assessed value of P60,000 does not comply with the requisites. Hence, there is no proper joinder of causes of action.

All rights reserved by Jurists Review Center, Inc. (JRCI), 2016. This work is the intellectual property of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, including proceedings with the Office of the Bar Confidant. Primer on Bar Essay Exam Tactics & Strategies by Prof. Manuel R. Riguera for Jurists Bar Review Center ™

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Note that the examinee did not cite what particular requirement in Section 5, Rule 2 of the Rules of Court was not complied with. What the examinee should have done was to refer to the particular requirement not met and strike out the other requirements which were complied with. •

WHEN APPLICATION PARAGRAPH IS UNNECESSARY

When there is no need to particularize the rule or the law since the facts of the problem are a virtual restatement or echo of the relevant rule. •

Illustration

A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash the information on the ground that no preliminary investigation was conducted. Will the motion be granted? Why or why not? (09 Bar Q16b) No, the motion to quash will not be granted. Under the Rules of Criminal Procedure, absence of a preliminary investigation is not among the grounds of a motion to quash. Hence, the motion will not be granted. •

ANSWER ONLY THE QUESTION. DO NOT VOLUNTEER ADDITIONAL INFORMATION.

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Remember that a complete explanation does not require that you volunteer information or discuss legal doctrines that are not necessary or pertinent to the solution to the problem. (Instructions, 2013 Bar).

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Illustration: Call is: Will the motion to quash be granted? No, the motion to quash will not be granted.

The lack of preliminary investigation is not a ground for a motion to quash under the Rules of Criminal Procedure. [Preliminary investigation is only a statutory right and can be waived. The accused should instead file a motion for reinvestigation within 5 days after he learns of the filing in court of the case against him.] (S6 R112). The bracketed portion should be deleted since it is not pertinent to the call of the essay question. TACKLE THE ISSUE PRESENTED Illustration Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front? (2003 Remedial Bar Q11) Answer does not tackle the issue presented

All rights reserved by Jurists Review Center, Inc. (JRCI), 2016. This work is the intellectual property of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, including proceedings with the Office of the Bar Confidant. Primer on Bar Essay Exam Tactics & Strategies by Prof. Manuel R. Riguera for Jurists Bar Review Center ™

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No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front, which is a purely political question. The President of the Philippines is immune from suit. (UPLC, Suggested Answers to Remedial Law Bar Exam Questions). Comment: Analysis of the question and the fact that it was asked in Remedial Law, indicates that the core issue presented by the problem is subject-matter jurisdiction and not the merits of the injunction suit; i.e., political-question doctrine and presidential immunity from suit. A one-paragraph format is used thus eschewing the logical form. Suggested answer using Jurists CRARC format No, a suit for injunction cannot be aptly filed with the Supreme Court. Under B.P. Blg. 129, an action which is incapable of pecuniary estimation is within the exclusive jurisdiction of and should be filed with the Regional Trial Court. Here the action is for injunction which is incapable of pecuniary estimation. Hence the exclusive jurisdiction is with the RTC and thus the suit cannot be aptly filed with the Supreme Court. TACKLING A QUESTION WITH TWO ISSUES X makes a promissory note for P500 payable to A, a minor, to help him buy school books. A indorses the note to B who, in turn, indorses the note to C. C knows A’s minority. If C sues X on the note, can X set up the defenses of minority and lack of consideration? (1989 Merc Bar Q6.1). FIRST ISSUE: Can X set up the defense of minority against C? SECOND ISSUE: Can X set up the defense of lack of consideration against C? SUGGESTED ANSWER (Each issue discussed separately) No, X cannot set up the defenses of minority and lack of personal consideration if he is sued by C on the note. Under the Law on Negotiable Instruments, minority although a real defense may be set up only by the minor himself. Here the one setting up the defense of minority is not the minor A but X. Hence X cannot set up the defense of minority against C. Under the Negotiable Instruments Law, lack of consideration is a personal defense which cannot be set up against a holder in due course. Here C is presumed to be a holder in due course under the Negotiable Instruments Law because there is no indication in the facts to the contrary.

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Hence X cannot set up the defense of lack of consideration against C. •

DEFINITIONS: When clueless, try to define using context or proximity.

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ENUMERATIONS: Use keywords to recall enumerations. Use a heading/introduction: “The exceptions to the Similar Acts Rules are the following:” Number the enumeration and use a bullet approach.

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DISTINCTIONS: Heading/Introductory Phrase. Subheadings/Points Of Distinction. Illustration: A compulsory counterclaim is distinguished from a permissive counterclaim as follows: 1. AS TO EFFECT IF NOT RAISED. A compulsory counterclaim not set up in an action shall be deemed barred, while a permissive counterclaim is not barred even if not set up in the action. 2. AS TO PAYMENT OF FILING FEES. Payment of filing fees on compulsory counterclaims has been suspended, while filing fees need to be paid on permissive counterclaims filed with the RTC…. STYLES OF TACKLING THE BAR EXAM 1st Style. Read through the questionnaire and write key-word outlines of answers on margins. Do this with all the numbers before proceeding to write the answers in the test booklet. 2nd Style: Read a question, draft outline on questionnaire, and then write out answer on booklet. Then proceed to next question, and so on.

TOP THIRTEEN DEFECTS OF BAR EXAM ANSWERS 1. One-paragraph format (use of “because”). 2. Conclusory or ex-cathedra answers. 3. Weak or non-interlocking paragraphs. 4. Strong point of answer weakened by blocks or interruptions. 5. No citation clause. 6. Too committal citation clause. 7. Obiter Dictum.

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8. Factual Answer. 9. Rule not pertinent to conclusion/core issue (remote rule). 10. Answer does not address or tackle core issue. 11. Citing the rationale for the rule rather than the rule itself. 12. Citing impertinent portions of the law and shotgun answers. 13. Failing to specify facts in 3rd paragraph. -oOo-

All rights reserved by Jurists Review Center, Inc. (JRCI), 2016. This work is the intellectual property of JRCI and the unauthorized copying, storage, recording, or dissemination of this work or any part thereof (including the posting of this work on the internet) without the express written consent of JRCI is illegal and shall be prosecuted to the full extent of the law by the bringing of the appropriate criminal, civil, or administrative proceedings, including proceedings with the Office of the Bar Confidant. Primer on Bar Essay Exam Tactics & Strategies by Prof. Manuel R. Riguera for Jurists Bar Review Center ™

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