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Memorandum Writing: (For 2011 Bar Examinations) Dean Lope E. Feble
Memorandum Writing: (For 2011 Bar Examinations) Dean Lope E. Feble
PRE-WRITING
Most students and even lawyers who have
problems in writing spend too little time in the prewriting stage. They begin to write before they are
clear about what they intend to say and about what
strategies and steps they mean to use. These
students and lawyers know only where they are to
start and roughly where they intend to arrive. Too
often they end up somewhere else. Even if they do
arrive at the planned destination, they may have
traveled a circuitous and long path to get there.
There is a better way.
PURPOSE
The first consideration in pre-writing is understanding
the purpose of the writing assignment.
In the bar examination, you may be asked to discuss
and decide all issues, or the rights and liabilities of all the
parties, or to address particular issues. Those writing
instructions are sometimes referred to as the call of the
question, and they established your immediate task.
There is, however, more to purpose than the call of the
question. You must think of the writing assignment as the
place where you will demonstrate the clarity of your
thinking, your skill in analysis, your ability to explain, your
logical reasoning, and your clear and effective writing.
AUDIENCE/READER
At first glance, the question of
audience/reader may appear to have a simple
answer:
the
bar
examiner
is
your
audience/reader. But to understand the
importance of your audience/reader in your
writing, you need to ask a few more questions
and clarify your assumptions. It is true that you
are writing for the bar examiner, the one who
will evaluate your work.
ANALYSIS
In your examination in memorandum writing, you will be given a
problem to solve. You must examine the hypothetical situation,
distinguish between relevant and irrelevant facts, spot the issues,
apply the law to the given facts, and lead your reader through your
reasoning process to a logical conclusion. You may use a number of
problem solving strategies to analyze the question and identify the
issue/issues and the key facts.
Here are some analytical techniques.
1. Brainstorming. This involves an unrestrained flow of ideas. The
key to brainstorming is turning off your internal cursor that says No,
that cant be right; or But Im not sure about that. As you read
through the fact pattern, make notes indicating all possible issues or
sub-issues you can imagine. Note the arguments, reasons, points to
consider, supporting evidence everything that you can think of that
could bear on the issue. Establishing the relative order and importance
of your ideas will come later. Even if you decide to delete later, this
free flow of ideas can help you examine all the possibilities you can
imagine.
WRITING/DRAFTING
We have to think about the writing or drafting stage of
the writing process in two (2) ways. In the case of a timed
examination, like the forthcoming bar examination, your first
draft is practically also your final draft. You may have time to
do a little editing and may be some minor revision.
Researched assignments, on the other hand, allow for major
revising and editing.
As you write either kind of draft, however, you will have a
number of writing concerns to keep in mind. You need some
ideas about introductions and conclusions, about unity,
clarity, and development, and about mechanics, transitions,
usage and style.
2. BREVITY.
Brevity means putting only so much as
needed into ones memorandum writing. The
length of a memorandum depends on the facts
and the issues involved. Brevity requires mastery
of the facts and the law, careful planning,
condensation, and attention to the essentials.
3. CLARITY.
Clarity is defined as clearness, directness,
orderliness and precision of thought or
expression. To achieve clarity, a memorandum
should be easy to read and understand.
I will now discuss useful pointers in writing
your facts, texts, titles, and headings,
italicization, setting off words, numbers, date,
abbreviation, period, and quotation marks.
a. Facts
Facts refer to actual events which have to be in the
record of the case. They represent the reality of events
or things whose actual occurrence is to be determined
by evidence. Facts have to be established and have to
be in the record.
The facts should be presented in an orderly
manner.
The supporting evidentiary facts must be stated in
the memorandum for that statement is what is called a
finding of fact.
b. Text.
Avoid wordiness. Be simple minimize the use of
highfalutin language, legalese, and foreign words and
phrases, although they may add dignity and majesty to a
memorandum when used sparingly and in the proper context.
They expose not erudition but exhibitionism and amateurism
when excessively used.
Faulty:
In common or ordinary parlance and its ordinary
signification, the term shall is a word of command, one
which has always or which must be given a compulsory
meaning as denoting obligation. It has a peremptory meaning.
And it is generally known as peremptory or mandatory.
This paragraph is verbose.
Better:
The word shall denotes an imperative and
indicates a mandatory character.
Use specific words that are well-positioned. Vague
generalities say nothing. Worse, they may confuse the
reader. Learn when and how to put emphasis in your
statements.
Emphasize a group of words by giving more space
to the important rather than to the less important idea
of a sentence. Place the more important part in a
prominent position which is either at the beginning or
at the end of a sentence.
Faulty:
The rule is that no statute, decree, ordinance,
regulation, or policy shall be given retroactive
effect, unless explicitly so stated.
Better:
No statute, decree, ordinance, regulation, or
policy shall be given retroactive effect, unless
explicitly so stated.
This sentence can have greater impact when
emphasis is correctly placed on a group of words.
Better:
Respondent challenges the credibility because they are all
complainants bosom friends, and because their testimonies
contradict one another.
The sentence is clearer and has an impact with the use of a
specific word or group of words (that is, because) to establish
parallelism.
iv. Consistency.
Be consistent in tone, tense, words and images.
Faulty:
There was no way the victim could ward off the accuseds
sexual advances. The accused, being armed and bigger than
her, overpowers her.
Better:
There was no way the victim could have warded the accuseds
sexual advances. The accused being armed and bigger, easily
overpowered her.
Readers are distracted and confused when there is a shift in
verb tenses without warning. Consistent verb tenses clearly
establish the time of the actions being described.
THE CHARGE
In an information filed by . . . . .
EVIDENCE OF THE PROSECUTION
I. Testimonial Evidence
II. Documentary Evidence
DISCUSSION
I.
THE ACCUSED WAS SANE AT THE TIME OF THE SHOOTING.
II.
SELF-DEFENSE WAS NOT ESTABLISHED.
III.
THE CRIME COMMITTED WAS MURDER.
PRAYER
VI. Italicization.
Non-English Words.
Italicize Non-English words. Non-English
words are those not found in the latest
unabridged
Websters
dictionary.
When
necessary, include a parenthetical explanation or
translation immediately after the word.
Example:
Jueteng (Illegal numbers game) is a major
social ill in the country.
2. Adjacent Numbers.
To clarify back-to-back modifiers, spell
out the smaller number: if the numbers are
the same, spell out one.
Examples:
The movie was interrupted by 13 tenminute commercials.
He bought ten 10-wheeler trucks.
6. Ordinal numbers
Treat ordinal numbers the same as cardinal numbers. Spell out
the first through the ninth, and use figures for the 10th onwards
Examples:
She passed the bar examinations on his third attempt.
The 20th century ushered in computers.
However, in reference lists, footnotes, tables, use figures to save
space.
Example:
2nd [or 2d] ed.
The winning lotto ticket was two sixes followed by three eights.
b. Plurals of figures are formed by adding s.
100s
F-15s
8. Age
Age is expressed in figures.
Examples:
5-year-old child
9 months old
9. Percentage
a. Figures are used with either the word percent or the percent sign (%).
Place the percent sign directly next to the number.
Examples:
The Energy Regulatory Board approved the 1 percent increase
in rates.
10. Fraction
a. Spell out common fractions and mixed numbers and use a hyphen.
Example:
one-half
two and three-fourths
b.
11. Decimal.
a. Use figures for decimals.
Example:
The typical Filipino household has 5.9 persons.
b.1. In text that mixes decimals and whole numbers, a
trailing zero is added to the whole numbers.
Example:
2.8, 3.5, 4.0, 5.0
Example:
The vote was 18 to 6 in favor of the proposal.
13. Currency
a. Place the currency sign directly before the number
Examples:
P500
$100
b. Repeat the currency sign with each number in a pair or
series. Do not use any hyphen when the currency
amount is used as a compound modifier.
Example:
P600 to P900 price range.
Examples:
Six kilometers
240 square meters
Examples:
25-kg sacks
6-cm board
100-m distance
8:00 a.m.
2:00 p.m.
b. When referring to 12 a.m. or 12 p.m.,
eliminate confusion by specifying 12
midnight or 12 noon, respectively.
VIII. Date.
a. Either American method (month-day-year) or the British method (daymonth-year) of writing dates is acceptable. However, for consistency, use only
one method throughout the text and footnotes.
Examples:
Plaintiff filed his complaint on January 27, 2011.
Plaintiff filed his complaint on 27 January 2011.
b. When referring to a date by month followed by the day, do not use the
ordinal form.
Example:
The July 18 hearing.
x The July 18th hearing.
Examples:
Two lawyers attended the May 2011 deposition.
The hearing, which was scheduled for May 2011,
was postponed several times.
IX. Abbreviation.
On first usage, names customarily abbreviated are spelled out
followed by the abbreviation in parentheses.
Examples:
The Philippine Judicial Academy (PHILJA) is the education arm
of the Supreme Court.
abbreviate
Example:
Section 5, Article VIII of the
Constitution enumerates the powers
of the Supreme Court. Sec. 5
includes the rule making power of
the Court.
Example:
Anas birthday party gave her an excuse for not going to the
wedding. (She did not really intend to go.)
Example:
winners?
Example:
He asked whether I would join him.
Hello!
How can we ever thank you!
He really didnt say that!
Oh, you wonderful woman!
The comma:
The purpose of the comma is to make the sentence clear. In some cases, the
comma sets off certain elements; that is, it precedes and follows a given phrase. In
other cases, the comma separates the parts of the sentence.
Here are the basic rules of comma usage.
Use the Comma to Separate
1. Words, phrases and subordinate clauses written in series.
Examples:
Smoothing back his hair, fixing his tie, and looking at the mirror,
Ronilo thought of his date.
He remembered the corsage, the dance tickets, and his key to the
house.
He was glad it was a warm summer night.
Note: The comma before and separating words in series may be used or not.
Whichever rule you follow, be consistent.
Example:
Antonio Eugenio, president
Examples:
Dear Carlos,
Your friend,
Very truly yours,
2. Digits indicating thousands or more.
Examples:
20, 320 1,213,505
verb
from
its
THE COLON
Use the Colon
1. After the salutation of a business letter.
Examples:
Dear Sir:
Gentlemen:
Examples:
I had only three problems: my forehand, my backhand
and my nerve.
9:30 a.m.
4. Between chapter and verse in Bible references.
Example:
Mark 4:16
THE SEMI-COLON
Use the Semi-Colon
correct:
THE APOSTROPHE
The apostrophe is used in three cases: in forming possessives,
in forming certain plurals and in indicating the omission of letters.
Forming the Possessive
1. To form the possessive of all singular nouns and of all plural
nouns not ending in s, simply add apostrophe s (s)
woman womans
men mens
ship -- ships
mother -- mothers
When the singular noun ends in ce or s, it is often acceptable and
sometimes preferable to add simply an apostrophe.
Mrs. Rosales mother
yours
hers
theirs
Forming Plurals
The plural of letters, figures, signs and words
referred to as words is formed by adding an
apostrophe s.
gs
two as
cross your Is
They look like ls
If the number is written out, do not use an
apostrophe; simply use an s.
ones
twos
threes
fours
Forming Contractions
A contraction is a shortened form of two words. Use the
apostrophe to show where a letter or letters were omitted.
its it is
couldve could have
youre you are
theyd they had
volcano explosion of 91 volcano explosion of 1991
Here are some additional common contractions:
arent
cant
couldnt
didnt
doesnt
dont
hasnt
havent
hell
hadnt
Ill
Ive
wasnt
whos
well
werent
youre
youve
THE HYPHEN
1. The hyphen is used for continuation of words from one line to
the next. When you must divide a word remember:
think-ing
be-gin-ning
self-made
THE DASH
1. Use the dash to indicate a break in thought or a
parenthetical thought.
Example:
I heard a rustling a noise that stopped as quickly as it
begun and I sat there petrified with fear.
2. Use the dash to join an uninterrupted series of numbers
in which only the first and last are stated.
Examples:
1956 1976
Chapters I IX
Punctuation Pairs
Some punctuation marks appear in pairs. They enclose a word or
a group of words. These include quotation marks and parentheses.
QUOTATION MARKS
1. Use quotation marks to enclose a direct quotation (the exact words
of a speaker).
Example:
He said, I shall not fail you this evening.
2. When the quotation is broken by explanatory notes, use another set
of quotation marks.
Example:
I shall not fail, he said, to visit you this evening.
b. Always place the colon and the semi-colon outside the quotation
marks.
Example:
He recited the theme of Frosts Mending Wall: that
men can never learn to be good neighbors with a wall
between them.
c. Place the question mark and the exclamation point within the
quotation marks when the punctuation belongs to the words in
quotes. When it relates to the whole sentence, place it outside.
Examples:
Stop! shouted the policeman.
What is the name of Charles Lambs essay, Dissertation
Upon a Roast Pig?
ITALICS
This sentence is printed in italics.
1. Italics are used for titles of books, magazine, newspapers, works
of art (drawing or paintings, symphonies, sculpture), long plays and
poems and ships.
Do you like Juna Lunas painting Spolarium?
coup detat
PARENTHESES
1. Parentheses are used to set off lettered or
numbered divisions within a sentence or
paragraph.
Example:
The immediate result of the Civil War
were: (1) the Union was reestablished, (2) the
slaves were freed, and (3) it was determined
that states had no right to secede from the
Union.
1. The Parties
Names, relationship, litigation status
2. The objectives of the Parties
What each side is seeking.
3. The theory of the Litigation
The cause of action and the defense.
4. The facts
The facts that are key to the resolution of the issues.
5. The Issue/Issues
The questions of facts or law
6. Discussion/Arguments
The conclusions or answers to issued
7. The Reliefs
The reliefs prayed for the party (who is filing the memorandum).
Here is an explanation of each term.
1. Parties and their relationship, etc.
The names of the parties and their relationship appear in the
caption. When multiple parties are involved, list only the names of
the first litigant on each side. Even in captions reading In Re: or
In the Matter of . . . . . , there are at last two opposing parties, and
their names should appear in your memorandum. In this section of
your memorandum, indicate as well the status of each party, that is,
plaintiff and defendant, petitioner and respondent, appellant and
appellee.
4. Issues:
Issues are the precise legal questions that will be resolved by
the court in order to reach its decision in the case under
consideration.
There are two kinds of legal issues or questions:
(1) A question about how one or more rules of law apply to a
given set of facts. When a court answers this kind of question, it
does so in the form of a HOLDING.
(2) A question about what happened (e.g., who did what
to whom)
Example:
1. Was plaintiff aware of the danger that the flaming oil
spilling from the Meralco transformer above her car would
fall on her: (a) when she got out of her car upon seeing the
flaming oil fall on the hood of her car, and (b) after she was
out of the car, when she saw the flaming oil from the said
transformer coming and falling towards her and tried to
block it with her hare hands to prevent it from hitting her
face?
2. Was plaintiff negligent (a) in going out of her car
after seeing the flowing oil fall on the hood of the car and
while it was still splattering on the street where she was;
and (b) in trying to block with her bare hands the flaming
oil she saw coming and falling towards her after she got out
of her car to prevent it from hitting her face instead of
running away from it to a safer place in the street.
REVISING
The next step in the writing process, and one of
the most important, is to revise your draft. To revise,
you must examine your draft, looking at it again from
several perspectives, asking questions of yourself;
and changing, rearranging, or even rewriting various
parts.
Revision is a crucial step in the process. Revision
is your opportunity to delete sections you dont like,
rewrite to clarify, change the order to better
emphasize a point, and go into more detail in a
section you glossed over initially.
Commas as connectors
In legal writing, do not omit the final
comma in a series, because its absence may
cause problems. For example in the
sentence, All of mu assets shall be divided
equally among my children: Ven, Victor,
Verna and Vener, how may divisions did the
testator intend? Should the assets be divided
three ways with Verna and Vener sharing a
third? If the testator had added a final
comma before AND, there would have been
no ambiguity.
RE-WRITE
BECAUSE he committed a heinous crime, the accused received the
maximum sentence.
(3) Try AND do your best.
RE-WRITE
Try TO do your best.
Say it affirmatively.
Negative statements lack force. They merely deny, so
they are less forceful than affirmative statements.
Therefore, when possible, state your ideas affirmatively.
Compare the following pairs:
* He did not fulfill his duty
He failed in his duty.
* He did not carry out his contract.
He breached his contract.
* He did not carry out his responsibility.
He failed to carry out his responsibility.