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LEGAL RESEARCH & WRITING: REVIEWER(WORKING DRAFT)

MARKTANO 2011

Table of Contents
CONCEPT OF LEGAL RESEARCH ..................................................................................................................... 1 LEGAL RESEARCH ...................................................................................................................................... 1 STATUTORY RESEARCH ................................................................................................................................. 5 Read and evaluate primary ........................................................................................................................... 6 BASIC LEGAL CITATION.................................................................................................................................. 6 Anatomy of the Statutes ............................................................................................................................. 13

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CONCEPT OF LEGAL RESEARCH


(Chapter 7, p. 131)

LEGAL RESEARCH is the:


(1) Search for authority that can be applied to a given set of facts and issues; (2) Process of identifying and retrieving information necessary to support legal decision-making; a. Includes each step of a course of action that begins with an analysis of the facts of a problem; and, b. Concludes with the application and communication of the results of the investigation. LEGAL ANALYSIS is the process of determining how the law applies to the problem. Legal research and analysis involve determining how the law applies to the facts of the case, which in turn requires knowledge of what the law is, how to find it, and the general principles that governs its application. Q: Why legal research skills are important? A: Because they are necessary for solving legal problems. Inadequate or incompetent legal research may cause the legal question to be answered incorrectly and result in the legal researcher being fired or the attorney being disciplined or disbarred. Q: How does legal research differ from research in other context? A: They differ on the following: (1) There is a need to develop an awareness of the types of materials that constitutes the law and of the relationships between these materials. (2) The need for comprehensiveness in primary authority research. (3) Legal researcher must also learn to appreciate the need to update and verify every source upon which the precedential value of cases is frequently affected by subsequent judicial analysis or by the actions of legislatures. (4)

LEGAL AUTHORITY: Types of Legal Authorities: 1. Primary Legal Authorities are authorized statements of law issued by governmental bodies. These are official pronouncements of the law by the legislative branch (constitution and

MARKTANO 2011 statutes), judicial branch (cases), and executive branch (treaties, executive orders, administrative rules and regulations, ordinances). 2. Secondary Legal Authorities if it does not fall within one of the previously mentioned categories. These are descriptions of, or commentary on, the law. This category includes law review articles, treatises, Restatements of the Law, legal encyclopedias and other similar items. Secondary sources can be used only as persuasive authority. Primary Authority The law itself, such as constitution, statutes, ordinances, administrative rules and regulations and other court decisions A source of law a court MUST RELY ON when reaching a decision, such as enacted law that governs the legal question being addressed, or an opinion of a higher court in the jurisdiction that addressed the same or a similar legal question. Generally, MANDATORY or BINDING Secondary Authority A source a court may rely on that is not the law, such as legal books, legal encyclopedias, restatements of the Law, treatises, and law review articles Any authority a court is not bound to consider or follow but may consider or follow when reaching a decision, such as an opinion of a court in another state on the same or a similar issue, or a secondary authority source (encyclopedia article, legal dictionary definition, legal books and son on) Primarily, PERSUASIVE

Q: What are the steps to determine whether an enacted law applies to govern a legal question or issue before a court is addressed? A: According to Putnam (2004) the steps included are: (1) Identify all the laws that may govern the question (2) Identify the elements of the law or statute (3) Apply the facts of the case to the elements Q: What are the Sources of Authorities? A: The law comes into being in two principal ways through legislative action and through court action. Hence there are primarily two sources of law in the Philippines: enacted law or statute and common or case law. Other sources are administrative bodies and the local government units. As a general rule the PRESIDENT cannot enact laws or statutes but as a matter of exeption, there are instances where presidential decrees where considered laws. Primary Authorities (mandatory / binding) and Source Authorities Source Constitutions Legislature Statutes Legislature

MARKTANO 2011 Case Laws / Jurisprudence Administrative Regulations Executive Order Treaties Presidential Decrees Municipal Laws and Ordinances Judiciary Executive Executive Executive Executive Executive

Secondary Authorities (persuasive) Dictionaries, Annotations, Encyclopedias, Law Review Articles, Periodical Publications, Treatises and Text, Attorneys general opinions, restatements, Foreign Sources, Form Books, Practice Guides

The Legal Research Process is not a linear process. The following represents the steps that are typically taken when doing legal research. 1) Analyze the facts and formulate a preliminary statement of issues. 2) Familiarize yourself with the court structure of the jurisdiction 3) Conduct background research to get an overview of the subject area, identify issues and terms and get clues to primary sources. 4) Search for legal authority using appropriate methods of updating 5) Read and evaluate primary authorities 6) Make sure cases are still good law and you have the current version of statutses 7) Refine analysis and formulate conclusion. Law is defined as a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority. Case Law includes decisions of Supreme Court, the courts and judicial bodies. Case Law is a result of the Common Law System. Common law is a body of rules created through judicial decisions. These operate either under the Doctrine of Precedent or Doctrine of Stare Decisis. This means that past decisions guide the determination of current disputes. While this creates an element of stability, the common law system also reacts and adapts to developments in society and technology over time. Case laws are most times referred to as Jurisprudence or Judge Made Laws. Common Law is the law created by courts in the absence of enacted law. Purpose of the Law is to establish standards that allow individuals to interact with the greatest efficiency and the least amount of conflict. Functions of Laws: (a) (b) (c) (d) Keep the Peace Shape Moral Standards Promote Social Justice Maintain the Status Quo

MARKTANO 2011 (e) (f) (g) (h) Facilitate Orderly Change Facilitate Planning Provide a basis for Compromise Maximize Individual Freedom

Article 8, Civil Code of the Philippines Judicial decisions form part of the legal system. Article 9, Civil Code of the Philippines No Judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. A legal researcher who is citing a higher law will win over a provision of an inferior law. 2 Common Law Doctrines: (1) Precedent (2) Stare Decisis Basically when a case came before a judge, the lawyers would very persuasively inform the judge about all of the similar cases which had previously been decided by the court, and would urge the judge that the facts of the case merited the same treatment. [Of course, judges were not bound to follow those previous decisions as they would be in a common law system,] but as a practical matter they would usually adhere to their previous rulings. Private Law v. Public Law Private Law governs the relationships among individual citizens. Matters located within the private sphere are seen as purely a matter for individuals themselves to regulate, without the interference of the State, whose role is limited to the provision of the forum for deciding contentious issues and mechanisms for the enforcement of such decisions. Public Law governs the relationship between the State and the People. Actions of the State and its functionaries vis--vis the individual citizen, and the legal manner in which and the form of law through which such relationships are regulated. Substantive v. Procedural Law Substantive Law creates and resolves the issue between the parties. Creates, defines and regulates rights, as opposed to adjective, procedural or remedial law, which provides a method of enforcing rights. Procedural Law prescribes a method of enforcing rights or of obtaining redress for the invasion of rights. It has the goal that judges and juries will receive only evidence that will allow them to make a fair and impartial decision. Procedural law plays a part in the litigation and includes the following: 1. The time limit for bringing a lawsuit;

MARKTANO 2011 2. 3. 4. 5. 6. 7. The manner in which the lawsuit is begun (e.g. by filing a complaint or petition) The proper way to inform the defendant that a lawsuit has been filed. That types of information that each party must release to the other party. The procedure at trial. The evidence that can be introduced at trial. The method for appealing the decision if the losing party feels the decision was unfair.

Types of Procedural Law 1. Rules of Civil Procedure 2. Rules of Criminal Procedure 3. Rules of Evidence

STATUTORY RESEARCH
Constitutional Research deals with the interpretation and implementation of the Philippine Constitutions. As the Constitution is the foundation of the Philippines, constitutional law deals with some of the fundamental relationships within our society. This includes relationships among the states, the states and the federal government, the three branches (Executive, Legislature, and Judiciary) of the federal government and state government. Constitutions are important because they set the guidelines within which legislatures must operate when passing statutes. The 1987 Constitution is composed of 17 articles: Article 1 A good way to conduct Constitutional Law Research is to look at the Constitutional Convention proceedings to get the intents and background of each provision in the constitution. Steps in Constitutional Research 1. Find a good constitutional law textbook 2. Find a good case 3. Find other relevant cases Statutes LAW is a body of rules of action or conduct prescribed by controlling authority and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences. In its JURAL AND GENERIC sense refers to the whole body or system of law.

MARKTANO 2011 IN ITS JURAL AND CONCRETE SENSE, law means a rule of conduct formulated and made obligatory by legitimate power of the State.

PHILIPPINE STATUTES INCLUDES 1. 2. 3. 4. Statutes enacted by legislature Presidential Decrees (PD) and Executive Orders (EO) issued by the President Rulings of the Supreme Court interpreting the law Rules and Regulations promulgated by administrative or executive officers pursuant to delegated power 5. Ordinances passed by Sanggunians of local government units SOURCES Public Acts by Philippine Commission Commonwealth Acts by Philippine Legislature Batasa Pambansa Republic Acts Congress of the Philippines PDs EO Shariaa Law

1) Familiarize yourself with the court structure of the jurisdiction 2) Conduct background research to get an overview of the subject area, identify issues and terms and get clues to primary sources. 3) Search for legal authority using appropriate methods of updating

Read and evaluate primary BASIC LEGAL CITATION


Q: What is legal citation?

MARKTANO 2011 A: Legal Citation is the style of crediting and referencing other documents or sources of authority in legal writing. It is a standard language that allows one writer to refer to legal authorities with sufficient precision and generality that others can follow the references. Q: What are the purposes of legal citation? A: A reference properly written in legal citation strives to do at least three things, within limited space. 1. Identify the document and document part to which the writer is referring 2. Provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer); and 3. Furnish important additional information about the referenced material and its connection to the writers argument to assist readers in deciding whether or not to pursue the reference. Q: What are the types of Citation Principles? A: There are four categories wherein detailed principles can be conceived falling under: 1. FULL ADDRESS PRINCIPLE principles that specify completeness of the address or identification of a cited document or document portion in terms that will allow the reader to retrieve it. 2. OTHER MINIMUM CONTENT PRINCIPLE principles that call for the inclusion in a citation of additional information items beyond a retrieval address the full name of the author of a journal article, the year a decision was rendered or a statutory codification last updated. 3. COMPACTING PRINCIPLE principle that reduces the space taken up by the information items included in a citation. These include standard abbreviations and principles that eliminate redundancy. 4. FORMAT PRINCIPLE principles about punctuation, typography order of items within a citation and the like. Such principles apply to the optional elements in a citation as well as the mandatory ones. CITING SOURCES: 1. Constitution - in the footnote, the Constitution is cited by reference to the article, section and paragraph. When the Constitution is no longer in force, enclose the year when it took effect in parantheses. E.g. CONSTITUTION, Art. VII, Sec. 2. CONSTITUTION, (1935), Art. III, Sec. 1, par. (3). 2. Constitutional Proceedings in the footnote, cite the constitutional record journal by reference to the volume in roman; followed by the words RECORD, CONSTITTUTIONAL COMMISSION or JOURNAL CONSTITUTIONAL COMMISSION; the page number; and the date of the deliberation

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E.g. II RECORD, CONSTITUTIONAL COMMISSION 24 (June 24, 1986) II JOURNAL, CONSTITUTIONAL COMMISSION 24 (June 24, 1986) 3. Session Laws in the footnote cite session laws by referring to the law followed by the year of effectivity in parentheses and the specific article or section. E.g. Republic Acts, 1946-1972, July 27, 1987 to date Republic Act No. 4723 (1966), Sec. 2.

Batas Pambansa, July 23, 1984 to February 1, 1986 Batas Pambansa Blg. 111 (1981), Sec. 1. Presidential Decrees, September 21, 1972 to February 20, 1986 Presidential Decree No. 828 (1975), Sec. 3. Commonwealth Acts, 1935 to 1945 Commonwealth Act No. 353 (1938), Sec. 2. Act Numbers, 1900 to 1934 Act No. 2137 (1912), Art. 3. Executive Orders, February 23, 1986 to July 26, 1987 Executive Order No. 292 (1987). 4. Codes. In the footnote, cite the name of the particular code and either (1) the specific article or section, if the specific article or section, if the provisions in the code are numbered continuously; or (2) the headings, from general to specific, followed by the particular article or section, if the provisions are not numbered continuously. When the code is no longer in force or has been subsequently revised, put the year of effectivity in parentheses after the name of the code. E.g. CIVIL CODE, Art. 297. CIVIL CODE (1889), Art. 67. ADMINISTRATIVE CODE, Book IV, Title 1, Chapter 9, Sec. 29.

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5.

Legislative Proceedings. In the footnote, cite the legislative record and journal by reference to the volume in roman numerals; followed by the words RECORD or JOURNAL, HOUSE or SENATE; the specific Congress; the Session Number, the page number, and the date of deliberation in parentheses. E.g. II RECORD, HOUSE 6TH CONGRESS 1ST SESSION 24 (June 24, 1986). II JOURNAL, HOUSE 6TH CONGRESS 1ST SESSION 24 (June 24, 1986). II RECORD, SENATE 6TH CONGRESS 1ST SESSION 24 (June 24, 1986). II JOURNAL, SENATE 6TH CONGRESS 1ST SESSION 24 (June 24, 1986).

6. How to Cite Administrative Materials and Regulations The following are the uniform and standard style according to the Manual of Judicial Writing (2005), Pp 54-62. 6.1. Treaties 6.1.1. A citation of a treaty or other international agreement should include the name of the treaty or agreement, the date of signing, the parties, the subdivisions referred to (if applicable), and the source. Other relevant dates and a statement of their significance may be added in parentheses at the end of the citation. E.g. Treaty of Friendship with India, July 11, 1952 (1953), II-2 DFATS 2, 2 PTS 797, 203 UNTS 73. International Convention for the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, 660 UNTS 195 (effective January 4, 1969). 6.1.2. E.g. Genocide Convention. for the Convention on the Prevention and Punishment of the Crime of Genocide. Use a shorter or popular name for subsequent citations.

MARKTANO 2011 6.2. Executive and Administrative Issuances. 6.2.1. In the footnote cite executive and administrative issuances by referring to the issuance followed by the year of effectivity in parentheses, and the specific article or section. E.g. Executive Order No. 329 (1950). Proclamation No. 784 (1961). Administrative Order No. 21 (1966). 6.2.2. Presidential Acts under Martial Law E.g. General Order No. 39 (1972). Letter of Instruction No. 230 (1972). Letter of Implementation No. 5 (1972). Letter of Authority No. 1 (1972). 6.2.3. Other Executive Issuances E.g. Secretary of Justice Opinion No. 271, s. 1982. 6.2.4. Cite Rules and Regulations promulgated by administrative agencies by the abbreviated name of the agency together with the designation employed in the rules (e.g. Administrative Order, Order, Circular, Bulletin, Rules and Regulations), serial number, year of promulgation in parentheses, and the section or paragraph. Where the promulgating agency is a Department, indicate where appropriate, the implementing bureau or office. E.g. Department of Environment and Natural Resources (Forestry) Administrative Order No. 26 (1976) Labor Employment Service Regulation No. 3 (1966). 6.2.5. Cite provincial, city and municipal ordinances in the following manner: name of the local government units, serial number of ordinance and date of adoption.

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MARKTANO 2011 E.g. Manila Ordinance 6120, January 26, 1967. 7. Court Decisions 7.1.1. Decisions and Resolutions. Case Title. Cite cases by giving the surname of the opposing parties first mentioned. 7.1.2. Decisions and Resolutions. Exceptions. a. Cite Islamic and Chinese names in full. E.g. Lim Sian Tek v. Ladislao (Not Lim v. Ladislao) Una Kibad v. COMELEC (Not Kibad v. COMELEC) b. Cite name of corporations, associations, business firms, and partnerships in full. Words forming part of such names maybe abbreviated, except the first word. E.g. Mata v. Rita Legarda, Inc. Allied Workers Ass.n of the Phils. V. Republic Trading Corp. c. Cite cases involving the Government of the Philippines and criminal cases as follows: E.g. U.S. v. Jaranilla Government v. Abadinas Commonwealth v. Corominas Republic v. Carpin People v. Santos d. Cite cases involving public officers as follows: Where the person is named in an official capacity, use the name of the person only. E.g. City of Manila v. Subido (Not City of Manila v. Subido, in his capacity as Civil Service Commissioner)

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MARKTANO 2011 Gonzales v. Hechanova (Not Gonzales v. Executive Secretary) e. Where the office is name, use the complete title of the office E.g. Collector of Internal Revenue v. Tan Eng Hong Chief of the Phil. Constabulary v. Sabungan Bagong Silangan f. Cite local government units by their level, followed by their official name. E.g. Province of Rizal v. RTC City of Cebu v. Ledesma g. Cite case names beginning with procedural terms like In re. as they appear in the decisions. Use In re instead of In the matter of. E.g. In re Elpidio Z. Magsaysay h. In consolidated cases, cite only the first case. Italicize case titles, whether in the body or in the footnote. For case titles found in the body, place the citation in the footnote. Abbreviate versus as v. E.g. In Mabuhay Textile Mills Corp. v. Minister Ongpin1 the Court held that x x x ________________________ 1 225 Phil. 383 (1986). 8. Case Reports. Cite cases in the footnote as follows: 8.1. For cases published in the Philippine Reports: the title of the case; the volume; the short title Phil. For the Philippine Reports; the first page of the case; the page where the quoted text, if any is found; and the year of promulgation in parentheses; or

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MARKTANO 2011 8.2. For cases not published in the Philippine Reports: the title of the case; the docket number; the date of promulgation; the volume of Supreme Court Reports Annotated; the short title SCRA for the Supreme Court Reports Annotated; the first page of the case; and the page where the quoted text, if any is found. E.g. Concepcion v. Paredes, 42 Phil. 599, 607 (1921). In re Aguas, 1 Phil 1 (1901). People v. Suzuki, G.R. No. 120670, October 23, 2003, 414 SCRA 43. 8.3. If the case is not yet published in the Philippine Reports or SCRA, cite as follows: the title of the case, the docket number, and the date of promulgation. E.g. Herce v. Municipality of Cabuyao, Laguna, G.R. No. 166645, November 11, 2005. 8.4. Multiple Cases. When citing several cases in a footnote, start from the latest to the earliest. 8.5. Rules of Court. In the footnote, the Rules of Court is cited as a code. When the cited rules are no longer in force, add year of effectivity in parentheses. E.g. RULES OF COURT, Rule 130, Sec. 2, par. (a). RULES OF COURT (1940), Rule 19, Sec. 7, par. (b).

8.6. 8.7. 8.8. 9. 10.

Anatomy of the Statutes


Title provides that every Enacting Clause

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MARKTANO 2011 Preamble Purview of the Statute Separability Clause Repealing Clause Effectivity Clause Three Step Approach in Statutory Analysis (1) Determination of whether the statute governs the situation in any way. (2) Carefully read the statute and identify what is required for the statute to apply. (3) Application of the elements to the facts of the legal problem.

General Principles of Statutory Constructions and Interpretations CONSTRUCTION the art or process of discovering and expounding the meaning and intention of the authors of the law, where that intention is rendered doubtful by reason of the ambiguity in its language or of the fact that the given case is not explicitly provided for in the law (Caltex v. Palomar, 18 SCRA 247). INTERPRETATION is the art of finding the true meaning and sense of any form of words, while CONSTRUCTION is the process of drawing warranted conclusions not always included in direct expressions or determining the applications of words to facts in litigation. PRINCIPLE OF EJUSDEM GENERIS under the doctrine, ejusdem generis where general terms follow the designation of particular things or classes of persons or subjects, the general term will be construed to comprehend those things or persons of the same class or of the same nature as those specifically enumerated. STATUTORY LAW RESEARCH TECHNIQUE (1) Descriptive Word Approach (2) Title / Topic Approach (3) Popular Name Approach CODE a systematically arranged and comprehensive collection of laws, scientifically organized on a particular subject. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS it is an elementary rule of statutory construction that the expressed mention of one person, thing, act or consequence excludes all others.

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MARKTANO 2011 Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. CLASSIFICATION OF PARTIES 1. Real Party In Interest = the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. 2. Indispensable Party = a person without whom no final determination can be had of an action. 3. Proper Party = a necessary party is one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. 4. Pro Forma Party = A husband or wife who is required to be joined in suits by or against his spouse. 5. Quasi Parties = those in whose behalf a class or representative suit is brought. Parties not initially or formally impleaded as original parties but later bind themselves to comply with the terms of judgment or compromise rendered therein. 6. Representatives as Parties = where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. 7. Indigent Party = one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

ATTESTATION & CERTIFICATION. The Ponente should attest that the conclusions in the Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division or En banc. The Chief Justice will then certify by stating the following Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the court. Effect of Lack of Certification at the end of the Decision. "The lack of certification at the end of the decision would only serve as evidence of failure to observe certification req't and may be a basis for holding the official responsible for the ommission to account therefor. Such absence would not have the effect of invalidating the decision." Consing v. CA GR. No. 78272, Aug 29, 1989.

Publication of Cases Compilations of Judicial Decisions are printed in case reports or reporters.

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MARKTANO 2011 DIGESTS are usually the best source to locate cases on a specific topic. Supreme Court Decisions Court of Appeals Decisions Sandiganbayan Decisions Regional Trial Courts G.R. No._______ date of promulgation C.A. G.R. NO. ______ - R, CV. CR or SP, Date of promulgation Sandiganbayan Crim Case No. ______ Date of promulgation RTC (Place & Branch No.) Civil or Procedure Case No. ________ Date of promulgation MTC, MCTC, Me TC MTCC (Place & Branch No.) Civil or Criminal Case No. _________ Date of Promulgation Sharia Disctrict / Circuit. Court (Place) Case No. ____. date of promulgation. Padilla v. Duque, CSC Adm. Case No. 12345, January 6, 2006

Municipal Trial Courts

Sharia District and Circuit Courts Administrative Decision

Res Judicata is a judicially created doctrine which may be said to exist as an obvious rule of reason, justice, fairness, expediency, practical necessity and public tranquillity. for a matter already judged. The legal concept of res judicata arose as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury. The UNDERLYING PHILOSOPHY of Res Judicata is that the parties should not be permitted to litigate the same issues more than once. FOUNDED ON 2 GROUNDS: 1. Republicae ut sit litium end to the litigation because of public policy and interest of the State. 2. Nemo debet bis vexari et eadem causa end the hardship of the person by not vexing him twice. ELEMENTS OF RES JUDICATA: 1. 2. 3. 4. The former judgment was final The court which rendered it had jurisdiction over the subject matter and the parties The judgment was on the merits The parties, subject matters and causes of action in the first and second are identical

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MARKTANO 2011 2 Aspects of RES JUDICATA: 1. The effect of a judgement as a bar to the prosecution of a second action upon the same claim, demand or cause of action; and 2. Preclude relitigation of a particular fact or issue in another action between the same parties on a different claim or cause of action. FOREIGN JUDGMENTS ARE PERSUASIVE NOT BINDING. Advantages of Jurisprudence 1. 2. 3. 4. Consistency Certainty Efficiency Flexibility

CONTENTS OF A CASE: 1. Ratio Decidendi reason for deciding or the reason for the division, it refers to the logic of ruling. 2. Obiter Dictum a remark by the way, any statement of law that is not essential part of the ratio decidendi is strictly speaking, superfluous. It is an OBSERVATION by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of Stare Decisis. PARTS OF A CASE: 1. Case Name The name or title of a case identifies the parties involved in the action (Civil, Criminal or Special Civil) and it provides some additional information about the nature of the proceeding. a. Matibag v. Benipayo (civil case) b. People v. Matibag (criminal case) c. Republic v. Matibag (special or civil preceeding) * Republic is represented by the Solicitor General d. In re Matibag in re means in the matter of / regarding. Not adversarial in nature e. In re Juan M or In re J.M. case name that indicates only a partys first name or initials are typically used to designate matters involving minors in order to protect the privacy. These cases most times relates to criminal actions involving MINORS. f. Ex parte Cruz Ex Parte in the title of a case indicates that the name following is that of the party upon whose behalf the case is heard. g. Ex rel Matibag ex relatione meaning upon relation or information. Such a case name indicates a legal proceeding instituted by the Justice Secretary or other governmental official in behalf of the state. h. Benipayo et. al.

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2. 3. 4. 5. 6. 7. 8.

Docket Number assigned by the clerk of Court. G.R. is Government Record Number The Court the name of the court The Dates date when case is argued / when decision is issued. Ponente the justice who penned the decision. Case Sypnosis or Summary Name of Counsel Opinion start with the recital of facts in the case because without it the rest of the opinion exists in vacuum. TYPES OF OPINIONS a. Majority b. Per Curiam c. Concurring d. Dissenting e. Memorandum Opinion (not encouraged) provides the holding or result but little if any reasoning therefore. f. En Banc 9. Decision the final element of the case, which: a. Affirm or uphold determination of the lower court b. Reserve or overturn the determination reached below c. Remand or return the case to the lower court for further action consistent with the courts findings. d. Vacate a case or dismiss it entirely. 10. Attestation andCertification (of the Ponente) ELEMENTS OF A LEGAL MEMORANDUM 1. 2. 3. 4. Statement of Fact Statement of the Issue Decision or Holding on the Issue or Issues Discussion of the reasoning underlying the holding

ANATOMY OF A LEGAL MEMORANDUM 1. 2. 3. 4. 5. Heading Facts Issues Conclusions Discussions

Internal and External Memoranda Internal Memoranda intended for ones own use or the use of the law firm.

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MARKTANO 2011 External Memoranda are called briefs or memoranda of points and authorities or memoranda of laws are documents ordinarily submitted to the court in the course of a lawsuit to advance a particular position with utmost vigor. COMMON ELEMENTS OF A CASE BRIEF 1. 2. 3. 4. 5. 6. 7. 8. Name of the Case Citations Procedural History Statements of Facts Issue Answer Reasoning discuss the reasons by which the court reached its decisions. Holding actual disposition of the case,

IRAC -state the legal ISSUE - look for applicable RULES - APPLY the legal rule to the facts -state the CONCLUSION

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