legal writing 1

Question 1

legal dispute

Answer 1

when one party complains of a violation of his right by another who, on the
other hand, denies such a violation.

Question 2

In a criminal case, the legal dispute consists

Answer 2

(a) the State’s claim that the accused has violated its right to compel obedience to its laws
(b) the latter’s denial of the claim during his arraignment.

Question 3

Why is it important in legal writing that you are able to know and
identify the legal dispute involved in a case?

Answer 3

if you fail to correctly identify the legal dispute and address it, you
would just be running around in circles, contributing nothing to its
final termination.

Question 4

Why is knowledge of the principal issue important to you?

Answer 4

It is important because you judge the significance of every argument that you want to use to persuade your reader by its relevance to the principal issue.

Question 5

Two Stages of Legal Writing

Answer 5

1. Pre-work
2. Write-up

Question 6

Pre-work

Answer 6

you are at the beginning of your writing assignment and are looking at the facts and evidence of the case as they are made available to you.

a. Ascertain the legal dispute.
b. Make an outline of the relevant facts.
c. Identify the Issues.
d. Rough out your argument.

Question 7

five levels of efforts: Pre-work

Answer 7

1. Establishing where the legal dispute lies in the case;
2. Discovering its relevant facts;
3. Knowing the laws or rules that apply to it;
4. Identifying the issue or issues that you would address; and
5. Roughing out the arguments that you would use.

Question 8

Write-up

Answer 8

having all the ideas you need concerning your legal writing assignment, your task put in paper.

Editing and rewriting will complete the write-up stage.

Question 9

What benefits do you derive from arranging the facts in proper order
or sequence?

Answer 9

1. The facts are easier to understand when put in the order of time.
2. When facts are arranged in the proper order, you would clearly see how each fact relates to or connects with others.
3. When the factual versions of either side are put in order and matched, you would also be able to see clearly the areas where the respective versions agree and disagree.
4. Facts, properly arranged, prepare you for the work of writing up the facts of the case in your pleading or memorandum.

Question 10

There are two general sources of laws and rules:

Answer 10

1. Statute law: This consists of laws and rules enacted by duly constituted rule-making authorities
2. This consists of decisions of courts and persons or agencies performing judicial functions. These decisions interpret and apply statute law to specific situations.

Question 11

But just how do you locate the right law and legal precedents?

Answer 11

First. Identify the general nature of the legal dispute involved. Find the statute law.
Second. Having become familiar with the facts of your case, search for legal precedents that have more or less parallel facts.

Question 12

But just how do you locate the right law and legal precedents?

Answer 12

First. Identify the general nature of the legal dispute involved. Find the statute law.
Second. Having become familiar with the facts of your case, search for legal precedents that have more or less parallel facts.

Question 13

Subordinate Controlling Issues

Answer 13

the resolution of the principal issue in a case depends on how a subordinate issue raised in connection with it is resolved.

Question 14

factual issue

Answer 14

when the contending parties cannot agree that a thing exists or has actually
happened.

Question 15

legal issue

Answer 15

l when the contending parties assume a thing exists or has actually happened but disagree on its legal significance or effect on their rights

Question 16

Correct statement of the Issues

Answer 16

1. By using the introductory words “whether or not,” you automatically incorporate the opposing views, the positive and the negative, into one statement of the issue.
2. plantiff’s issues stated opposite claims of the defendant. The reason for this is that the plaintiff or the accuser in a case always bears the burden of proving the affirmative of his or her claims.
3. the statement of the issue must be fair, not slanted in favor of a party.
4. e statement of the issue should also be comprehensive, leaving no relevant point outside its embrace.
5. The statement of the issue must be specific and clear.

Question 17

Threshold issues

Answer 17

those that could slam the door to any judicial consideration of the case on its
merits.

a court could not decide a case falling outside the scope of its authority, a case filed in the wrong place, a case filed by the wrong party, or a case filed after too many years.

Question 18

structure of a balanced thesis presentation

Answer 18

First –– A clear statement of your thesis or where you stand on the issue to be resolved;
Second –– The arguments that can be made against your position but with an explanation that those arguments do not doom such position;
Third –– The arguments in favor of your position; and
Fourth –– An appeal to the good sense of the person or
persons who will resolve the issue.

Question 19

argument

Answer 19

reason you offer to prove your thesis or proposition.

First, you can state the rule that “Crossing the red light is punishable by law.”
Next, you can state the fact in Jose’s case that “Jose crossed the red light.”
Finally, you can state your conclusion that “Therefore, Jose should be punished by law.”

Question 20

argument consists of three statements:

Answer 20

the rule statement (crossing the red light is punishable by law), the case fact statement
(Jose crossed the red light), and the conclusion statement (therefore, Jose should be punished by law).

(1) the statement of a rule that applies to a given fact or set of facts (the rule statement); (2) the statement of the fact of aparticular case that opens up such case or closes it to the application of the rule (the case fact statement); and
(3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement).

Question 21

Meaning of “Rule”

Answer 21

Once you have ascertained your case fact, where will you find the “rule,” the key fact of which is in favor of or against your case fact and which would either produce the positive or negative conclusion that you desire.

Judicial precedents are the most convenient source of argument.

Question 22

Arguments that Build Up

Answer 22

a. The favorable testimony comes from a credible witness.
b. The party’s version is inherently credible and consistent with common experience.
c. All the elements or requisites of a valid claim or defense have been proved

Question 22

Arguments that Build Up

Answer 22

a. The favorable testimony comes from a credible witness.
b. The party’s version is inherently credible and consistent with common experience.
c. All the elements or requisites of a valid claim or defense have been proved

Question 23

Arguments that Destroy

Answer 23

a. The argument raised is irrelevant.
b. The argument has little weight given the other considerations in the case.
c. The argument is baseless.
d. The argument is contrary to common experience.
e. The argument is inconsistent with undeniable facts
f. The argument is inconsistent with a prior claim

Question 24

Sufficiency of Introduction

Answer 24

only as much background facts as are needed for an understanding of the issue or issues that the parties present.

two statements to introduce the issue or issues in a case:
(a) the statement of the case; and
(b) the statement of the facts.

Question 25

The Statement of the Case

Answer 25

to provide a clear and concise statement of the nature of the action, a summary of the
proceedings so far had, any challenged order or decision issued in the case, and other matters necessary to an understanding of the controversy.

Question 26

statement of facts

Answer 26

narrates the transaction or event that created the legal dispute and
led to the filing of the suit.

Question 27

Writing the Argument
Jump Off Points

Answer 27

1. You can launch your argument by briefly stating your opponent’s claim with the intention of defining the area that your argument will attempt to assail.
2. You can also begin your argument by stating your thesis or proposition, your intention being to support it with the argument that follows.

Question 28

Three Statements of an Argument

Answer 28

(1) the statement of a rule that applies to a given fact or set of facts (the rule statement);
(2) the statement of the fact of aparticular case that opens up such case or closes it to the application of the rule (the case fact statement); and
(3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement).

Question 28

Three Statements of an Argument

Answer 28

(1) the statement of a rule that applies to a given fact or set of facts (the rule statement);
(2) the statement of the fact of aparticular case that opens up such case or closes it to the application of the rule (the case fact statement); and
(3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement).

Question 28

Three Statements of an Argument

Answer 28

(1) the statement of a rule that applies to a given fact or set of facts (the rule statement);
(2) the statement of the fact of aparticular case that opens up such case or closes it to the application of the rule (the case fact statement); and
(3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement).

Question 29

Why is awareness of the three essential statements of your legal argument (the rule, the case fact, and the conclusion) important when you write up that argument?

Answer 29

It is important because the effectiveness of your argument depends on how ably you write up each statement of your argument into a convincing part.

Question 30

every sound legal argument takes shape, using as building blocks the three essential statements

Answer 30

the rule, the case fact, and the conclusion.

Question 31

Closing Statement

Answer 31

Concluding Statement
Prayer

Question 32

Active versus Passive Voice

Answer 32

The passive voice is indirect, limp, and weak.
the active voice is direct, vigorous, and strong.

Question 33

Third Person Speaks

Answer 33

. The main reason for this is that he who writes in the third person, focuses attention to his work or message rather than to himself.

Question 34

Writing in second person creates the same problem.

Answer 34

Writing in second person has of course its uses as when you write a
recipe for some dish or you write a how-to-do-it book like this one.
The sentences in this format function as suggestions or instructions.

Question 35

No Block Quotations

Answer 35

simply quote the important portion of the court’s ruling or paraphrase it before quoting it.

Question 36

Writing Clearly
Right Connectives

Answer 36

you need coupling mechanisms to tie these ideas together. These are called connectives or transitory devices.

Question 37

Do not think, however, that connectives are the only devices you can
use for joining ideas.

Answer 37

You can join two sentences together simply by putting into the second sentence a word that points to a word you used in the first. These are called word bridges.

Question 38

Abstract versus Concrete Writing

Answer 38

An abstraction is any word that applies to a large class of things rather than to any single, concrete object or idea.
Concrete words are words that stand for real things, things that appeal in one way or another to the senses.

Stick to concrete words as much as possible.

Question 39

Substitute Names

Answer 39

often results in confusion and the need to return to the statement of the case to be
reminded on who is who.
better to use names throughout your discussions especially when the case reaches a higher court and the parties begin to assume cumbersome and confusing descriptions like “the plaintiff-appellant,” “the defendant-appellee,” “the defendant-petitioner,” or “the plaintiff-respondent.”

Question 40

Headings

Answer 40

Headings help readers detect the turns that discussions
make as they shift from one topic to another.

Headings are of two kinds: (1) general; and (2) specific

Question 41

General headings

Answer 41

s provide some kind of signposts that point out to the reader the grounds he is about to cover in his reading. Examples of these are the “Statement of the Case,” “Statement of the Facts,”“Subject Matter of the Case,” “Issues Presented,” “Assignment of
Errors,” “Conclusion,” and “Relief.”

Question 42

Specific headings

Answer 42

They attempt to capture in a few words the essence of a particular argument or discussion. This kind of heading is especially helpful in marking out the beginning of every new topic in a row of topics. For example, a discussion that argues the point that the prosecution has failed to prove damage in an estafa case, the writer could place the following heading at the middle of the page, properly underlined or put in bold type:
1. The Element of Damage
Most lawyers, however, prefer to use specific headings that also sum
up the point made in each argument.
Thus:
I.
THE BANK SUFFERS NO DAMAGE FROM ITS TRANSACTION WITH THE ACCUSED
Note that, as a rule, subheadings are in the present tense and are not punctuated with a period.

Question 43

Writing Legalese
Legal Clichés

Answer 43

legal clichés have become hackneyed and weak through much repetition. Worse, to non-lawyers, they sound so unnatural and pretentious, if not arrogant. Ask yourself the question. Would you use this kind of language when writing to your mother or to your friends? If you would not, why use them in your pleadings? The judges and your clients to whom you usually address yourself are your elders or friends.

Question 44

Old English

Answer 44

Many prefer, despite the language revolution that drives a changing world, to stick to old English usages. That is to be respected. But if you are the kind that would want to address young readers as well, you might consider TO NOT DO IT.

Question 45

Sounding Formal

Answer 45

Legal writing should not be made up exclusively of big, formal words dressed in tuxedos. The standard for all effective writing is being understood. Some lawyers, in the mistaken belief that they will sound more dignified, insist on using polysyllabic words like “accompanied” instead of “went with,” “informed” instead of “told.” Quite often, however, they merely succeed in sounding like stuffed shirts.

Question 46

Cheap Words

Answer 46

Some words are so familiar that they have become the equivalent of a large number of other words. They have ceased to have any specific meaning.

Question 47

Self-praise

Answer 47

Many judges and lawyers tend to add remarks in their decisions or pleadings about how diligently they have worked on their cases. These remarks are common and often well intended but, to non-lawyers, they sound like self-praise. In these modern days, judges and lawyers might want to consider editing out such remarks since they divert attention
from the main message of the sentence.

Question 48

Sentence-length Variety

Answer 48

when you write sentences at more or less uniform lengths, you strain the inner ear. You write unnaturally. When you find pleadings of lawyers or decisions of courts boring or strenuous reading, it is your inner ear refusing to take what you read.

Question 49

Writing Legal Opinions
Every so often, a client would seek your legal opinion on some matter of concern to him. Before rushing into an opinion, however, you would do well to keep the following in mind:

Answer 49

One. Ascertain the purpose for which your client seeks your opinion.
Second. Do pre-work. Get all the facts you need for forming a competent opinion.
Second. Do pre-work. Get all the facts you need for forming a competent opinion.
Third. After pre-work, do the write-up, following what you learned earlier in this book. Introduce the issues by providing the background facts that are needed to understand those issues. You prevent a misunderstanding with your client when you summarize for him the facts on which you rely in rendering your opinion.

Question 50

Legal opinions have their limitations.

Answer 50

You have to realize that not all legal disputes are best resolved through judicial remedies. Litigations are best avoided, if the economics do not make sense, as when your client’s debtor is practically bankrupt. In such a case, your client would merely be throwing away good money, by incurring expenses for docket fees and attorney’s fees with no hope of recovering anything. Further, a legal confrontation could irreparably
damage relationships that may be far more valuable than the benefits derived from a judicial resolution of the dispute.
Law is based on wisdom but law is not wisdom.

Question 51

Writing Trial Memoranda
Make sure that your memorandum embodies the following
indispensable parts:

Answer 51

1. A summary of the nature of the action and the court proceedings so far had in it;
2. A summary of the facts of the case—the transaction or event that brought about the legal dispute and the lawsuit—as seen from theopposing points of view of the parties;
3. A statement of the relevant issues that the parties present for resolution; and
4. An orderly presentation of the arguments that support your client’s position.

Question 52

Writing Petitions for Review
So how do you get the Supreme Court to give due course to your
particular petition for review? The main thing, of course, is that you
must present a meritorious case. But even if your case were really
meritorious, it will not do if the Supreme Court is unable to see and
appreciate its merit. To succeed, your petition must be:

Answer 52

1. Clear—You need to be understood. If you present a hazy picture
   of your case, it would be doomed from the start. Take pains to rewrite
   your draft over and over until it is so clear that your reader can
   understand what the case is about in one reading.
2. Brief—You need to be understood fast. If you make a lengthy presentation because you use more words and sentences than you need to, your reader will lose interest in your case, his mind will wander away, and you will lose him.
3. Interesting - You need, above all, to create in the Supreme Court’s
   mind an interest in your case. And you can do this only if you can
   convince it that the court below has committed a grievous wrong that
   compels the High Court to intervene.

It will also help if, in the Court’s mind, deciding your case will
contribute to the development of jurisprudence.

Question 53

Final point. A large number of petitions, some probably
meritorious, get thrown out every year on account of incompleteness.
The rules require you to include the following in your client’s petition:

Answer 53

a) The full names of the petitioner (appellant) and the respondent
(the adverse party);
b) An indication of the material dates showing when your client, the
petitioner, received notice of the judgment or final order or resolution
subject of the petition, when he filed a motion for new trial or
reconsideration, if he did, and when he received notice of its denial;
c) A concise statement of the matters involved in the petition [the
facts of the case, the issues petitioner presents in relation to the
appealed decision, and the position he takes on those issues];
d) The reasons or arguments he relies on for the allowance of the
petition;
e) His verification of the facts stated in the petition; and
f) A sworn certification that petitioner has not indulged in the evil of
forum shopping signed by the petitioner himself.
In addition to the above, your client is required to:
a) Pay the docket and other fees;
b) Attach to his petition a clearly legible duplicate original, or a
certified true copy of the judgment, final order, or resolution subject of
review and its requisite number of plain copies;
c) Attach, too, such material portions of the record below as would
support the petition;
d) File the required number of plain copies of the petition;
e) Submit an affidavit of service of copies of the petition on the
adverse party and the court below by personal service or by registered
mail with registry receipts attached and with an explanation why
personal service was not done;
f) See to it that the affidavit of service, the verification, and the
certification of non-forum shopping indicate competent evidence of the
identities of the persons who swore to such documents; and
g) If petitioner is represented by counsel, indicate in the petition
counsel’s IBP official receipt, PTR, Roll of Attorney, and MCLE
Compliance or exemption numbers as well as counsel’s email address
and phone numbers.

Question 54

16.
Writing a Decision
it is incumbent for the judge to make a clear, logical, and convincing presentation of that decision. As a rule this requires that he lays down:

Answer 54

(a) the conflicting claims of the parties,
(b) the issues that separate them,
(c) the resolution of those issues, and
(d) an adjudication of the respective rights and liabilities of the parties.

Question 55

Pointers in Answering School
and Bar Examination Questions

Answer 55

1. Matters of Form
   observe paragraphing when you shift from one idea
   to the next. Paragraph breaks give the examiner a brief respite after
   each point. Visually, his task seems easier when divided into short or
   medium-length paragraphs. You make the examiner’s journey through
   your notebook easier.
   Always start on a new page for every numbered question. It is neat
   and turning to a new page gives the examiner a sense of
   accomplishment in correcting your notebook.
2. Making corrections
   simply run one line across the word you want to change, and then write
   the correct word over it if the space permits.
3. Budgeting time
   Count the numbers of questions asked and
   divide these by the time available to you. That will give you an idea of
   how much time you have to spend on each item. At halftime, check
   where you are and consider working faster when you have fallen
   behind.
4. Enumeration questions - when you are unsure of your answer or could not give all that are required, do not number your enumerations. Use the colon and semi-colons
5. Problem questions - Your answer pattern will now be: Topic, Rule, Application to case,
   and Conclusion or TRAC.
   The first part of the answer states the rule as to who are regarded as
   mortal, thus, “All men are mortal.” It is a rule statement. The second
   part of the answer applies the rule to the fact of the case, thus, “Carlos
   is a man.” The rule that all men are mortal applies to Carlos because he
   is a man. The third part of the answer is the conclusion, “Therefore,
   Carlos is mortal.”
   ***************