dd er oad While it is probably true that the matter of Gozon’s illegal taking of the checks was never discussed during the subsequent reconciliation ‘meetings of the parties, this could be explained. The reconciliation of account, which was an offshoot of the parties’ agreement to purchase and sell, was Boverned by the Civil Code while the criminal act of theft was covered by the penal code. This was precisely the reason why the theft committed by Gozon on May 23 was never discussed nor considered by the representatives of Carlton Beer, whenever the parties were discussing the issue of reconciliation of account. 11. Writing Clearly ‘ones in legal writing, - Right Connectives Communicated thoughts can be likened to a cargo tain, 4 locomotive engine leads several cars of cargo to their destination With ‘each ‘cat connected to the next by special coupling mechanisms. Without these connections, the cargo cars would 0 nowhere. ‘When you put together several sentences or ideas to deliver Remessage, you need coupling mechanisms to tie thee ideas {Ogether These are called coniéctves or transitory devices. They help the reader see the connections between Your sentences cr Paragraphs. Without them, many readers would be confused regarding your intentions. ‘Take for example this sentence: ‘The deceased was rich. She left P50,000.00 to her maid in her wil Insert the connective “indeai” between the sentences and | $ee its effect on the message. ‘The deceased was rich. Indeed, she left P50,000.00 to her maid in her will. 83‘The message broug! afford to give away P50, second sentence af and see the effect. FUNDAMENTALS OF LEGAL WRITING nt about by the connective “indeed” is that the deceased must have really been rich because she could (000.00 to a maid. In other words, the firms the truth of the first sentence. Now, change the connective “indeed” with the word “yet” The deceased was rich. Yet, she left P50,000.00 to her maid in her will. Sense the difference that the change in connective makes. deceased was quite rich, gave her Now, the message is different. The probably a Dilli faithful maid o: deceased acquires a negative one. In spoken language, the connections between gets an assist in clarifying his the expression of his face, from the tone of his voice, able in written language. You need the pauses. These are not avail help of jonaire, but she was too stingy and nly P50,000.00. From a positive image, the the listener usually succeeds in getting the speaker's ideas because the latter meaning from his gestures, from or from his ‘connectives or transitory devices to link your ideas one after the other and present a unified thought. You cannot assume that your reader can read unspoken tie-ups between ideas. The English language has many useful connectives: b) He is stupid. What is more, he is ugly. (A negative thought is added to another negative thought) First, next, then, and finally; meanwhile (describing simultaneous occurrences); later; since then ‘Arranges ideas in order. a) First, he introduced himself to her; next, he dated her then, he proposed to her; and finally, he married her. b) Carlos robbed the store. Meanwhile, Jose stood outside as lookout. ©) He sued her. Later, he agreed to settle with her. d) He wona million pesos. Since then he has not stopped spending the money. Nearby, above, below, beyond, to the right, to the left | CONNECTIVES I FUNCTION, EXAMPLES And ‘Connects two Defendant ideas of the same | refused to kind. acknowledge his debt and he would not pay it. Besides, Adds another a) Plaintiff called what is more, thought tothe | defendant by furthermore, in | first. (They phone. Besides, addition, and could be used he wrote him a interchangeably.) | letter. again Arranges ideas in space. The victim was sleeping in his (room. Nearby, e accused was stealing his things.But, still, other hand, yet, They cours oa erecnaess;and | aralg boas rather interchangeably but each seems to fit best in certain combinations of contrasting ideas. Comes sea oe however, on the aoe’ a) Juliet said that she cried for help. But Marig testified that he did not hear her cries, b) The plaintist claims that the debtor had not Paid him. On the other hand, the debtor claims that he had paid the plaintitt, ©) He was poor yet generous, 4) He did not love her. Rather, he lusted after her, In fact, as a matter | Connects the of fact, indeed first idea with a second one that points it up; the second idea affirms or supports the validity of the Alibi is a weak defense. In fact, it crumbles in the face of a positive identification. first idea. For example, for instance In other words Therefore, 50, hence, consequently, and accordingly Of course, to be Adds an illustration to an idea, : ‘Adds an ‘explanation to an idea or ideas, Connects an idea with another that follows from it. Grants an exception or limitation to an. idea. The freedom of ep ven Speech isnot ups tn absolute. For Bide win example,you fd bae t cannot walle into. [stare 4 crowded theater and shout "Fie! Fire!” Mark longs to see | oo heralways ists | tohervoice,and | touch her. In otker | ‘words, he loves her The accused acted | in self-defense. Therefore, he is not guilty All men are created equal, Of course, some men are more intelligent than others. In short, to sum up, and in brief Summarize several ideas. He lost his job, he sold all he had to pay his debis, and he still owed more. In short, he was bankrupt. The beauty of using connectives to put together two ot more ideas in legal writing is that they also serve as tools for developing logical reasoning. You are able to test the relation between ideas by trying one connective in place of another.* FUNDAMENTALS OF LEGAL WRITING Donot think, however, that connectives are the only devices you can use for joining ideas. You can join two sentences together Uply by putting into the second sentence a word that points to y word you used in the first, These are called word bridges. For examp! lithe purpose of reorganization isto be achieved, changes in the rankings of the employees should be expected. For one to insist on having his old rank would render the exercise useless, ina case, the law in question was the provision of the Civil Code that provides that attorneys fees “cannot be recovered” except under certain circumstances, Thus: ‘Art.2208, In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except (1) When exemplary damages are awarded: @) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or ta incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action oF proceeding against the plaintiff; (6) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable clan: (6) In action for legal support the recovery of wages of (7) In actions for aid jlled workers; household helpers, laborers, and ski mnity under workmen's (8) In actions for inde ‘5 liability laws; compensation and employer (9) In a separate civil action to recover civil liability arising from crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. Counsel for the plaintiff offered the following argument that challenged the award of attorney's fees against his client Counsel did not use the appropriate connectives. Non-recovery is the general rule, Ramos has the burden of proving that his claim for attorney's fees against Acme Company falls within the exceptions. The trial court had to make a finding that the exception he claims in fact exists. Here, the trial court has made no finding that Ramos’ case falls within the exceptions. The trial court awarded him exemplary damages. It might also award him attomey’s fees. The trial court did not find any factual basis for awarding exemplary damages. Its award of attorney's fees is just as baseless. As the decision of the trial court shows, Acme Company acted in good faith in filing the suit against Ramos for the purpose of quieting its title to the subject land. Acme Company obtained judgment against the former owner of the land. It levied on the property in due course. It bought the same at public auction. Ramos questioned the execution proceedings. The Court of Appeals upheld them. It affirmed Acme Company's right to place the title to the land in its name. Could you see the connections between the sentences ideas? Compare the same argument, this time with the p connectives. See if the argument has become clearerETO 160 FUNDAMENTALS OF LEGAL WRITING attorney's fees the exceptions. e Further, the trial cou: fhe seeptions I court has to make a exception he claims in fact exists, Here, the trial court has m. sae t has made no finding that fall within he econ Ramo ive fas within te exceptions ea « urt varded him exemplary damages and, therefore, itmightalsoswara him atorney' fee Mere Wal eur did nat nd any fc bens sen exemplary damages, then its award of attorney's fees is just as baseless, Moreover, as the decision of the trial court shows, Acme Company acted in good faith in filing the suit against Ramos for the purpose of quieting its title to the subject land. First, Acme Company. obtained judgment against the former owner of the land; second, it levied on the property in due course; and third, it bought the same at public auction. Ramos questioned the execution proceedings but the Court of Appeals upheld them and affirmed Acme Company's right to place the title to the land in its name. Abstract versus Concrete Writing Excessive use of big, general words like equality, justice, grave abuse of discretion, executory, commenced, or jurisdiction can result in abstractionism. Using these words often tempts you into believing that you have said something profound when you may have actually said almost nothing—at least nothing that a reader can really understand and use i his life. ‘An abstraction {s any word that applies to a large class of things rather than to any single, concrete object or idea. Every word is in some measure an abstraction, but some abstractions are more general than others. Too many abstract words make for vagueness, even meaninglessness. Good writing is specific makes things real Nay 6 another to the sen: ‘geriefal than “house,” WaMNG cLEaRLy The opposite £03} uo pt, Words that stand | ‘od is concrete. Concrete we for real things, things at sppee E = tore general than “a dilay i makeshift walls nds cardboard oot Dantes He shack wth a eh ah te he what you mean. Toilusiate nen” nt Mastate exactly Athongh no fain agro ney tener Seen end como oro as Se ‘The reader would probably be able to understand better the abstract principle stated above if it could be translated into an actual example. Thus— ‘True, in conspiracy the prosecutor does not have to present proof that the conspirators held a conference, sat around the table, agreed on their evil plot to commit the crime, and sealed theit agreement with a written contract. S8ll, the prosecntar must show concert of action among them. Evidence that a group of armed men barged into a bank at the waive of their leader's hand, with some staying outside as lookouts, with others emptying the tellers cash boxes, and with all departing in deliberate haste at a command, clearly shows their concerted action and unity of purpose, the ingredients of conspiracy.Consider the following legal opinion. In the 70s, the government did not only take taxes from imported cargoes, it also undertook the handling and delivery of these cargoes from the hold of the ship to the importer’s truck, The government collected substantial fees for this extra service. But it refused to answer for losses that importers incurred due to thieveries and neglect of government workers. In rejecting the claims of importers for damages, one opinion said: That there are practical, as distinguished from merely logical, reasons in support of such a view should be apparent from the recognition of the likelihood that the government would ever so often be hailed into court considering that engaged as it has lately been in varied activities appropriate to a welfare state the probability of private parties being adversely affected by action taken by it is not remote. A loss of property right could always be plausibly alleged. A claim for money could easily by conjured. Thus, the demands on the government's time and energy could reach limits well-nigh intolerable. After all it is an admitted fact that our people display no hesitancy in going to court whenever they feel aggrieved, even if the injury is more fancied than WRITING CLEARLY its consent, For, if the government can be sued and required to pay damages for all the wrongs it has done, the queue to the court would indeed be long. The government would be facing suits for profits that businessmen lost because of mismanaged traffic, for deaths or sicknesses caused by uncollected garbage, for cars wrecked by roads left in disrepair, or for compensation to those who failed to land jobs due to worthless training in public schools. The lawsuits would be infinite. For everyone has a reason to complain against the government. If the state must face all sorts of suits and pay damages, most government officials would be tied up in court appearances and unable to do their work. What is more, awards of damages would soon empty the public treasury. When these happen, the traffic would get worse, the uncollected garbage would mount, the roads would be impassable, and public schools would close down. The people who sued the state would have killed it. Substitute Names real. Thus, the functional or sociological approach to law would seem to call for a similar conclusion. Actually, the gist of the argument is that if the government Identifying the parties based on their positions in the case, such as “the complainant” and “thé accused,” "the plaintiff” and “the defendant,” “the petitioner” and “the respondent,” “the appellant” and “the appellee,” or “the protestant” and “the protestee” often results in confusion and the need to retum. must answer all lawsuits that could possibly be brought against it and pay damages, the government would have no time and resources left to attend to its important functions. But, since the argument was written in the abstract, the ordinary men who are affected by the resolution of the issue involved would have no hope of truly understanding the reasons given to support the argument. Rewritten for the ordinary reader, it might read: to the statement of the case to be reminded on who is who. Unfortunately, most readers get lost in or are confused by the use of these descriptions in lengthy articles. The parties have names like Theresa Luna, Lino Gonzalez, San Miguel Corporation (SMO), or Philippine Airlines (PAL). Tt would be better to use these names throughout your discussions Practical reasons support the rule that the state or the government cannot be sued without especially when the case reaches a higher court and the parties, begin to assume cumbersome and confusing descriptions like “the plaintiffappellant,” “the defendant-appellee,” “the defendant-petitioner,” or “the plaintiff-respondent.” SomeCGPS eCeEeSeSCHHGHERearv” FUNDAMENTALS OF LEGAL WRITING lawyers still draft contracts that refe the first part” and “the party of the {0 people as “the party of writers have long abandoned these second part.” Modern legal substitute names Headings {fa legal paper is short, may be two or three pages, headings that divide the discussions into ities ties at Sone necessary. But, when the paper is long and abound in a variety of topics, it would help to use headings. 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. 1. General _headings 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.” General headings are essential to trial memoranda, briefs on appeal, and petitions for review: In fact, procedural rules, require the use of some of these headings. And even when not so uired, they are as essential to legal writings as floor numbers are on elevators. General headings help you get quickly to the portion of a substantial legal work that you want to read or go back to 2. Specificheadings, on the other hand, are like newspaper headlines. The peat 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 2 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 middie 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 Tosti YOUR work 1 ‘THE BANK SUFFERS NO DAMAGE FRO: i cE FROM ITS TRANSACTION WITH THE ACCUSED. Note that, as a rule, subheadings are in and are not punctuated with » period Writing Exercises Make the following abstract legal poir end in view of convincing your reader rega the present 1. Police power rests upon public necessity and upon the right of the state and of the pubiie «0 self-protection. For this reason, its scope expands and contracts with changing needs. 2. Emotional immaturity and irresponsibility cannot be equated with psychological incapac: 3. Unlawful aggression does not exist where the peril to one’s life, limb, or right is ni nor imminent.12. writing Legalese eee nace a, ear Ff many es natin gel ange el way acne Spiny eo gm ofp eggs aon ince a ee age tn Th) nd yee eed oul Ah en a ae na pte wa aon and i fe aed ape Seer, have wrfluous for him to identify ee eoesorid and the demand to be understood have P é aan rec the validity of this belie. Legal clichés belong Fine the pasty making | — O cling demands simplicity, clarity, the submission; “respectful- cee cera: Modern legal writing demands simplicity, clarity the aubaion, “reper and accuracy. las someone said, the law is a “device for social control.” The government enacts laws to govern human conduct. Laws forbid people from doing evil things or from hurting others. They alse quire people to do things that are needed for the good of all in the community. Since effective obedience to laws requires an understanding of them, laws should be written in plain and ordinary English or Filipino that the average layman could understand. Legal Clichés Admittedly, some lawyers are notorious for copying words EN pretentious, ifnot arrOB: ther or to YOUr J i x mot aap kt our motne oe alu het om your plead iender you wei 2% you anally 268 Sern rt Ends ‘Take these examples: o Petitioner respectfully sub- | Respondent cour: gravely petitinat respondent court | abused its discretion: Guively abused its discre- | against 10 words) tion. (ince petitioner filed the pleading, it would be su- it is thrown in as a matter of form, the sincerity is gon Even a cursory perusal of | Section 21 did not authorize Section 21 will readily reveal \ respondent court to issue a (this might sound like, “Ifyou | writ of execution in cases have the brains, the meaning | covered by it. (18 against 37) of the law should be clear to you after a casual reading”) that nothing therein was mentioned or impliedly stat- ed about the authority of re- spondent court to issue a writ iowin wits & & of execution in cases covered or phrases, usually found in old case reports or law books, which by the said rule. they deem profound or which give a sense of importance to what they write. They probably believe that their individual style of writing would somehow gain added substance and strength using those borrowed words and phrases. But, in truth, these Lest it be forgotten, (this|The law is supreme. (4 might sound like, “You are | against 8) forgetful, so hear this”) the 166 law is supreme.FUNDAME *PAMENTALS OF LEGAL Writing (this might ke a declares Suffice it to stata Gis found like, “With your it el of intelligence, 1 wos be definitely useless to on more”) that plaintife wae ia me The argument is untenable (but probably better than de- claring the argument unten- able is proving it). It fails to take into account the fact that the accused did not see the oncoming truck. | he answerienon agen] 13) ott (4 against Plaintiff was in enoppl against 9) ae ‘The argument fails to con- sider that the accused did not see the oncoming truck. (24 against 21) Petitioner’s argument és be- reft of merit (if it really lacks merit, it would probably be better to prove it rather than declare it), It ignores the law. Petitioner's argument ig- nores the law. (5 against 10) Preambles like the above legal clichés get in the way and do not add to the meaning of the main message of the sentence Still, if your purpose is to write somet thing about what you did in xr person’s point of view the case or pass judgment upon the othe: rather than just show how his view lacks merit, itis your choice, Wrens LecaLese There w 8 no denial o Acts of intecoen tt taken place, but the ane ould insist that comelan tt id 0 ling the ation accord te beingthai she wars meee sexual Old English Many prefer, despite the language revolution th Although hea Ouse gna ‘Would insist that Rut = ly agreed to it, cea sweetheart 9 ‘aie te she being his Against 3) 2 changing world, to stick to old English usages, That wns ce suggestions: declined to apply the rule. (this phrase is superfluous if you are discussing no other case) are not disputed. bench (same effect as stant” case) have agreed to | arbitration. He left for Manila. Arriving thereat, he phoned his dad. respected. But if you aze the Hind that would ww young readers as well, you might consider the false ‘The parties in the case at | The parties have agreed to ‘n- | arbitration. “The requirements are, to wit: | The requirements are as fol lows: to address In the case at bar, the court | Here, the court dedinea to \ apply the rule. “The facts in the instant case | The facts are nok disputed. He left for Manila. Amiving there, he phoned his dad.| of which is attached hereto | enclosed as Annex A. Las Annex A | | —— ee | Upon receipt of the aforesaid | Upon receipt of the decision, | decision, petitioner filed his | petitioner filed his notice of | notice of appeal | appeal. [eecee esto [Homer a se ow | When the witness saw | When the witness saw the ceiling on fire, he was | the ceiling on fire, he was | alarmed thereby. But the | alarmed by it (or “it alarmed door lock had jammed so | him”). But the door lock had by reason thereof, he left | jammed so he left through through the window. the window | Heapproached the room and | He approached the room and | | looked therein. | looked in it. [As the crowd marched, he | As the crowd marched, he | went therewith. went with it | He brought a chair and sat | He brought a chair and sat | thereon. Lon it — __ ——— [The accused stopped the tri- | The accused stopped the tri- | cycle and alighted therefrom. | cycle and alighted from it. He jortiiti dragged her to | He then dragged her to the | the tricycle | tricycle. Sounding Formal Legal writing should not be made up exclusively of big formal words dressed in tuxedos. The standard for all etfective writing is being understood. Some lawyers, in the mistaken that they will sound more dignified, insist on using poly words like “accompanied” instead of “went with,” instead of “told.” Quite often, however, sounding like stuffed shirts. belief cormed” ry merely succeed in I The accused was in posses- | Blando had a gun. sion of a gun. | Appellant posits that he has | Appellant assumes that he | the right, has the right | | Mario. Reyes commenced | Mario Reyes filed an evic- @ complaint for ejectment | tion suit against Josephine against Josephine Cruz. Cruz. (9 against 10) [The case against petitioner | The case against petitioner | herein was set for hearing. _| was set for hearing. | The said motion was ‘The prosecution opposed the | opposed by the prosecution. | motion. (Quire of | do without the | especially the article | speats of only one motion) jostponed to The trial was postponed to | The trial was postp' enable the accused tierein to | enable the accused to pre- presented by appellant facts. ‘The finding of the court is__| The court's finding restson | based on the factual miliew | appellant's version of the | a Petitioner's contentions are | Petitioner's claims are vague | nebulous if not speculative. | if not speculative. Laura stated that the ac- | {aura said that the accused cused detained her. Al con- | detained hee. On the other trario, the accused declared | hand, the accused claimed pare his defense, prepare his defense. that she came voluntarily. | that she came voluntarilyy ] SOI IIII YY FUNDAMENTALS OF LEGAL WRITING WRMG LEcALESE Albeit incidental, his tra~ versal of plaintiff's state- ment is portentous. Though incidental his re- jection of plaintiff's claim i omingua, ni eaimis The duty of the court is to adjudicate the contentious positions of the parties. ‘The court's duty is to decide the conflicting claims of the parties, Any pronouncement of the court will only be advisory. Anything the court says will only be advisory. It would then result that on the basis of the foregoing disquisition, an amendment of the criminal information cannot be allowed. Based on the above discus- sion, an amendment of the criminal information cannot be allowed. He denied detaining Laura, contrary to her asseverations in her testimony. He denied detaining Laura, contrary to her positive testimony. This is indubitable proof of Soberano’s criminal intent. This is unquestionable proof of Soberano’s criminal intent. He prevented her from com- municating with anyone. He prevented her from talk- ing with anyone. Objectively and subjectively considered, the circumstanc- es point towards appellant's innacence and are incom- patible with attributions of guilt. However viewed, the cit cumstances point to appel- Jant’s innocence and do not support the charges. The serious illegal deten Bon theory arpa bean antand her eltves hoy frantic about the ardor of ‘appeltent in his romance, with complainant wanted to Keep appellant away trom her because she apparently Tove wih he seme ope passion. ian a | aes ‘The court informed the ac- | The court told the accused cused of his rights. \ of his rights \ ‘He appeared to be guilty. He consumed his lunch. Charging Joel with serious illegal detention seems to be a thought born of the wor. | ties that Melba and her rela. tives had over his intense love for her. They wanted to separate them since she did. | Rot seem to have deep fee ings for him anymore He seemed guilty, He ate his lunch, He wanted a lawyer of his ‘The sheriff implemented the | The sheriff carried out the court order. court order. "The individual has been ar-\ He has been arrested. rested. He likes the manner in ‘Vie likes the way in whieh it which it was done. ‘was done. He desired a lawyer of his In the light of the foregoing circumstances, it was im- provident for the court a quo to conclude that appellant detained the complainant. Because of the circumstanc- es, the court below reckless- ly concluded that appellant detained the complainant. ‘Ag a rule, when you can choose between an easy, familiar re “dignified,” the easier word expression and one that seems mor ee vote better choice if it means exactly the same thing, You FY vevcouuse use the more formal word without any adverse SSwe FUNDAMENTALS OF LEGAL WRITING WRITING LEGALESE co But you need to guard against the temptation of trying to sound dignified. Your writing will have natural dignity i iris sosens A meticulous scrutiny of the | The record shows that de- and thoughtful. It is when you try to doctor it up with high. evidence of record |it is like | fendant offered convincing flown, stately-sounding, polysyllabic substitutes for direct and Saying, “take note that I am | proof of his claim. (11 as simple words that you begin to sound pompous. Seeguous in my work") | against 17 words) shows that defendant of- Cheap Words fered convincing proot of s claim. But this does not mean that you should always use short In our considered opinion | The defendant acted in bad or familiar words. Some words are so familiar that they have [you must know that we | faith. (6 against 10) become the equivalent of a large number of other words. They carefully weighed everything have ceased 0 have any specific meaning. Examples of these before forming. this opin: are descriptive words like good, nice, pretty, ugly, bad, awful, ion”), the defendant acted in | big, little, fast, slow, funny, crazy, great, and fine. They are used bad faith. ' everyday to describe anything that sounds positive or negative. i This steak is good (tasty, tender fresh, ete), The movie te good OF Sects ttaroughly | The record satisfactorily | entertaining, amusing, well priced, ably directed, ete) Check oer te mcs atl, Soe) shows that the cvidence su | te thesaurus unl you nd a moe preci meaning for your | oer the nerd of the cae | alanis the ‘ebsenatios particular purpose that we worked very, very | oranda, (17 against37) | For example, the word “crazy” has different shades: insane, [hard on this one”), we are mad, lunatic, unbalanced, psychopathic, cracked, non compos sufficiently satisfied (but it | mentis, touched, bereft of reason, moonstruck, scatterbrained, one is satisfied, it cannot be | maniacal, delirious, irrational, lightheaded, incoherent, rambling, less than sufficiently) that \ doting, wandering, amuck, frantic, raving, pixilated, eccentric, the observations and conclu- | demented, deranged, schizophrenic. Do not dwell in the slum of sions contained in the fore- cheap language when the thesaurus offers you riches that you going memoranda are fully Sa aeeieese substantiated and supported (the point is somewhat over: stated) by the evidence on Self-praise ped | | A caret sorutiny (yes, we ] The testimonies of Ruby and | carefully scrutinize every- | Ygnacio do not show the lat | thing in the case”) of the | ter’s guilt. (12 against 27) | testimonies coming from. | the complainant and the ac- cused fails to yield to the conclusion that a finding of his guilt is warranted. eh 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 ' since they divert attention from the main message of the sentence. For exampleFUNDAMENTALS OF LEGAL WRITING The Court had thoroughly delved into the records of the instant case and painstak- ingly assayed the evidence adduced by the parties. We find the evidence of the pros- ceution grossly insufficient to sustain a conviction. No amount of examination of the prosecution's evi- dence could justify a finding of guilt of the accused. (17 against 34) Sentence-length Variety ‘Try to listen to people speak and you will observe that their sentences vary in length. Even before you learned how to write, you knew language as you hear it spoken by others. And, though you could read and write sentences later in years, your everyday conversations have remained largely verbal. In other words, your inner ear is tuned to verbal sentences of various lengths. Take for example these words from a father whose son wanted to go out with his friend on a Friday evening: Vl let you go out but be here by twelve o’clock midnight af the latest. And when I say twelve o'clock midnight, I don’t mean that you can come home at twelve-thirty in the morning or twelve-fifteen or twelve-five. I mean twelve midnight. Believe me because warn you that you will not be able to go out with your friends again if you come home any later than twelve. Mark my word. Do you see how the lengths of the sentences vary from medium to long, to short, to long, and to short? ll let you go out but be here by twelve o'clock midnight at the latest. (16 words) ‘And when I say twelve oclock midnight, I don’t mean that you can come home at twelve-thirty in the morning or twelve-fifteen or twelve-five. 25) WRITING LEGALESE Imean twelve midnight. (4) Believe me because I warn you that you will not be able to go out with your friends again if you come ‘home any later than twelve. (27) Mark my word. (3) ‘When you find pleadings of lawyers or decisions of courts boring, ee ate oes See cares For example, the oppositor of a petition for the appointment of a guardian for three minors offered the following arguments to defeat the petition: Romina is not qualified to be appointed guardian of the orphaned minors and administrator of their cash savings and properties. She treated the large amounts of cash that she received on behalf of the minors like they were her own. Although she is an accounting major graduate, she did not segregate the cash she got by depositing these in a bank in trust for them, something that parents do for their children’s savings. Had she done this, she would have an unquestionable record of the money she received on their behalf and the money she withdrew for expenses. Ironically, she claims that she has much experience in handling money for other people since she once worked for a bank. What is more, Romina was aware that the resources of the deceased parents of the kids show no potential for growth and that the cash they have in the bank could just run out. Yet, she has not presented any plan to the Court for seeing the kidsAnyone who prefers to write in this way wo sunt SOF LEGAL wre through college with what resources they have left. Instead, she squandered their money on unbelievable ‘expenses, given that in just seven months, she spent #12 million in household expenses for them. This means that for two kids in elementary and one in high school, she spent an average of P156,000.00 monthly for them The above is of course faul ess in ge stake. St * ting. But Romina is not qualified to be appointed administrator of the cash and other properties of the orphaned minors since she treated these as if they were her own. For ane thing, she is an accounting major. Yet, she did not segregate the amounts she received by depositing these in a bank in trust for the minors, something that parents do all the time for their children’s savings. Clearly, she is irresponsible. Had she opened thase accounts for them, she would have an unquestionable record of the money she received on their behalf and the money she withdrew for expenses. Ironically, she used to work for a bank ‘The experience apparently did not profit her, given the manner she treated the money belonging to the minors What is more, Romina knew that the resources Of the deceased parents of the kids show no potential for future growth, The cash in the bank is exhaustible. Yet, she has not presented any plan to the Court for decision but the names of the persons been changed to pret deler WRITING LEGALESE seeing the kids through college with what resources they have left. In truth, she squandered their money. They were just two kids in elementary school and one. in high school but in just seven months, she spent P12 million for them in household expenses, an average of P155,000.00 monthly. Would you believe iv Waiting Exercises The following has been lifted fe . is logical and grasnmati however, that would be % 10 understand on challenge is to (ou have learned above Fate apparently dealt a low blow to the Romero family when on the evening of November 30, 1970, the daughter, Rita, not even fifteen then, alone in the tented room in a house at Aliw Beach, Zam City, where she was living with her mother, who was then away for the night, was, according (o her complaint for rape, compelled to submit twice because of force to the sexual advances of the accused Hector Galos, also a boarder in the same house. There was no denial of the acts of intercourse having taken place, but the accused would insist that complainant did so willingly, the explanation, according to him, being that she was his sweetheart. He would stress likewise his continued presence in the room until the dawn of the next day and the absence of any outcry and places involved have Some portions have beenCUED ? p v SSSI ITTUY oe vy, vo fon her part, which could have been heard by those staying in the adjoining rooms. Histestimony asto the absence of force being employed was corroborated by another boarder, who occupied the adjacent room, and the owner of the house itself. The lower court preferred to believe the girl’s version and sentenced him to reclusion perpetua. The severity of the penalty inflicted under the circumstances where, as is not unusual in rape cases, there is a conflict of testimony as to what actually did transpire, led us to peruse with greater care the records of the proceeding, x x x As will be more fully explained, a careful scrutiny of testimony coming from the complainant and the accused fails to yield the conclusion that a finding of guilt is warranted. We have to reverse. The disparity in the versions offered by the contending parties cannot obscure certain indubitable facts. The accused did not by the use of force or deceit gain entrance into the rented room where the sordid incident took place. There was no Genial of the version by him and his two witnesses that earlier in the evening the complainant was with a group, included in which was the accused, engaged in drinking and light banter. It could very well be that the euphoric feeling induced by this youns girl’s imbibing the tuba wine led to the relaxation of what could be inhibiting factors. Once inside fhe room, and with the accused apparently being {he itor whose advances had not been spured, sat itat its mildest, it was not expected (hat 1 jatimacies would take place. It could very aoa e that the young lady did not initially agres ton ge aan ct of intercourse. Under the circums!n0 er in an ae with coaxing and cajoling on the Patt of the accused, there was nothing unlikely in —— aoe al congress being reached. What by HOE Fappened twice. There could Rave been =A TN caept that it was foiled because the aie 1 was att attempted av i wa way due to the com “ight ofthe patiipants The man ey nae! ile which to intimidate the iestghhane Then 10 itimations that there was opponitinn oe te Part She did not hot yell or seream Th on either side of the room, fd oody ty Sas Plywood partition, certainly would hive Soca ronen of any breathing, That certainly was not inchoons Of rape, Moreover, to repeat the acased stayed ol wen early the next morning they wert wee together. x x x Hence acqu together xn quittal ought to have been the 1. The accused has in his fav prssumption of innocence. Thats a mandate ot he fundamental law. It may be noted that even when the brevious Organic Act did nat o provide, a defendant i a Set en resumed tobe innocent until [his gules proven by Satisfactory testimony. » The burden of prot iets on the prosecution to demonstrate guilt. Every vestige of doubt having a rational basis must be removed More specifically, where the offense charged is rape Inge weet ees rgd re being resorted to and coercion being employed. Th element of voluntariness must be lacking, x xx : 2. The opinion of the Court is not to be mis- interpreted. It goes no further than to acknowledge that the proof submitted on behalf of complainant did not measure up to the exacting standard required in cases of this nature. h the light of the applicable constitutional provision and the authoritative precedents requiring, full respect for the constitutional rights of an accused, a reversal is called for. x x x WHEREFORE, the decision of the lower court is set aside and the accused is acquitted of rape.13. 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: ‘One. Ascertain the purpose for which your client seeks your opinion. Does he merely want to know his rights? Does he need to show your opinion to others? Does he have to make an important decision that could have deep repercussions for him and others? Is he ‘facing a potential lawsuit? Your client is not a lawyer and, unless you go deep into his reason for seeking your opinion or try to understand his real problem, he could be posing the wrong questions to you. And, consequently, you could be giving him the wrong answers. Ina case, a client asked her lawyer his opinion regarding what constituted psychological incapacity for marriage. After her lawyer told her, she preoccupied herself with establishing evidence that her husband was psychologically incapacitated for marriage to the point that she strained to fit the facts of her case into what the law required. She gave this evidence to his lawyer. But the Court was unconvinced and did not grant annulment. Yet, as it turned out, the couple was in the first place married without a proper marriage license. Not being at fault, she was entitled to annulment on this ground but she had to go through so much expense and hardships in establishing a weak case based on another ground because, before responding to her query, her lawyer did not bother to find out what she needed his opinion for. 182 Do not settle, therefore, for a hypothetical question. Try to get your client’s trust. If you cannot, it might be preferable that You refrain from giving her an opinion or that you make it doubly Clear to her that the opinion you give might be the wrong one for her: In this way, you avoid taking the blame for any mishap. Second. Do pre-work. Get all the facts you need for forming a competent opinion. A wrong factual premise will naturally produce a wrong legal diagnosis. Go over the materials you got from your client, ascertzin the legal dispute involved, and put down in writing the principal issue that it produces. Next, make a summary of the relevant facts of the case and put them in correct sequence. Identify the issues that have to be resolved and rough out the arguments thai support your thesis. 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. Ilustrative Case: Chan v. Century Bank Below is a sample legal opinion. Like similar examples in this book, do not consider it a prescribed form. Forms are hardly important. It is substance that matters although, in legal writing, substance must meet certain minimum requirements of content. These are: a) background facts that adequately introduce the issues in the case, b) a statement of what those issues are, c) the Position you take on those issues, d) the arguments that may be made against you, e) the arguments in your favor, and f) what you want your reader to do under the circumstances. Format and style are up to you.See TTI) eee September 4, 2013 Milan Furniture Con Inc 245 Juan Luna Street Binondo, Manils Dear Mr. Chan: Here is the opinion that The facts, as 1 documents, are as follo you requested, gather from you and your ws: On May 12, 2012 you applied with the Cent Bank in Binondo, Manila, on behale of Milan Furniture Co., Inc, for a letter of credit, Ammen A Covering its importation of hardwood from Vietnam, On arrival of the goods, the bank agreed to advance the payment of their price to your supplier. In turn, you executed a promissory note in the name of Milan Furniture, Annex B, undertaking to pay back the bank’s advance within three months of the date of the note. You also signed a trust receipt, Annex C, covering receipt of the goods. The trust receipt provided that, in case of the sale of the imported hardwood, Milan Furniture would turn over the proceeds of that sale to the bank to apply to your loan. Because Milan Furniture had been unable to pay its promissory note to the bank when it fell due, on October 17,2012 the lawyers of the bank sent you a demand letter, Annex D, requesting full payment of the debt or return of the goods. I understand that, on receipt of the Jette, you i i ‘x of the bank, ied to negotiate with the manager o! ae to ae the imported hardwood that you were yet unable to sell or use. But the bank manager i tthe bank did not acc jected your offer, stating that ink di ganas in payment of debts owed it. Since a Aegotiations also failed, the bank sent you a WRITING LEGAL OPINIONS OF fling 4 PYMeRt on December trust receipt that you executed in its grate sate ha ey win ol a tye 4 under a threat tats involving the its favor, cn deemed to have wit you to pay or Receipt.” Effe Milan Fu) it should be demand from red by said Trust ‘ose to consider ly bought those insaction from the Receipt Law. 1 base my opinion on the following: The relevant pr or PD 115 provides: thdrawm its earlier return the goods cover tively, the bank ch miture to have alread, ‘ogether removing the tra coverage of Section 13 of the Trust rovision of the Trust Receipt Law SEC. 13. Penalty Clause. —The failure of an entrustee to turn over the proceeds Of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three Hundred and Fifteen, Paragraph ‘One (b), of Act Numbered Three Thousand Eight Hundred and Fifteen, as amended, otherwise known as the Revised Penal Code. xxxAMENTALS OF LEGAL WRITING The related provisions of Section 1(b), Article 315 of the Revised Penal Code, under which the violation is made to fall, states: ART. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned herein below xx x: 1. With unfaithfulness or abuse of confidence, namely: Xxx xxx xxx b. By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.” From the above, the following are the elements of estafa involving a trust receipt: 1. The entrustee received the goods under a trust receipt from the entruster under an obligation to turn over the proceeds of the sale of the goods or to return said goods; 2. The entrustee misappropriated or conver- ted the goods by failing to turn over the proceeds of their sale or to return said goods to the entruster, 3. The misappropriation or conversion is to the prejudice of the entruster; and 4. The entruster made a demand on the entrustee. WRITING L :GAL OPINIONS One of the elements of estafa involving a trust receipt is that the entrustee [in this case, you or Milan Furniture] received the goods under a trust receipt from the entruster [in this case, Century Bank] under an obligation to turn over the proceeds of the sale of, the goods or to return said goods. The Trust Receipt Law, PD 115, provides in Section 11 that the liability for estafa under paragraph 1b) of Article 315 of the Penal Code arises in case of “the failure of an entrustee to turn over the proceeds of the sale of the goods ... or to return said goods.” The trust receipt in this case, Annex A, echoes the above provisions of the Trust Receipt Law. Under it, Milan Furniture or you as its signatory, undertook “to turn over to the BANK the proceeds” of the sale of the goods' or, “in case of non-sale,” to “return the goods covered by this Trust Receipt to the BANK upon its demand.”? But the terms of the trust receipt does not end there. The trust receipt, Annex A, gives Century Bank an option not “to accept the return of the goods.” In effect, Century Bank could chose to regard such goods already sold to Milan Furniture even though the latter could and wanted to return them. The seventh Paragraph of the Trust Receipt, Annex A, thus reads: We agree that the BANK is not obliged to accept any return of the goods under this Trust Receipt by us or to consider any return thereof if accepted or demanded by the BANK, as satisfaction of our indebtedness to the BANK. Third paragraph, Trust Recess, Annex 8 "id, ith paragraph,Bi HN eIST STII a xy _ Century Bank in fact availed itself of the abov option. It opted not to accept the ie pea cand ce gee ae a ees a ate Conary Coste cartier demand that you or Milan Furniture pay “return the goods covered by said Trust Receipt immediately.” Effectively, Century Bank chose by its action to consider the subject goods sold to Milan Furniture, altogether removing the transaction from the coverage of Section 13 of the Trust Receipt Law. The essence of the crime of conversion or misappropriation is that the offender to whom money or goods has been entrusted has unfaithfully or with abuse of confidence failed to return what was merely entrusted to him and appropriated it for his own. Here, neither Milan Furniture nor you could be considered as having unfaithfully or with abuse of confidence misappropriated and converted the goods subject of the trust receipt. Century Bank did not want those goods back. It had regarded them sold outright to Milan Furniture. The latter's liability for the goods should, therefore, be considered purely civil. Moreover, Section 13 of the Trust Receipt Law provides that the “failure of an entrustee to turn ver the proceeds of the sale of the goods ... or to return said goods ... if they were not sold or disposed of in accordance with the terms of the trust receipt Shall constitute the crime of estafa.” The essence of the penal provision of the law, therefore, is {hat the entruster [here, Century Bank] has entrusted the good to the entrustee [Milan Furniture or youl for Rim to sell, Once sold, the entrustee was to turn over the proceeds of the sale to the entruster. Section 13 does not embrace instances where the goods are turned over by the entrustor to the entrustee por the latter’s use in his own business. This is clear IRETING LEGAL OPINIONS from the ruling of the Si 5 1e Supreme Court in Colinares v. Court of Appeals? that reads: : vet teary te the ac tha ident an hot one cate te srovtson embodied nthe Ben cenipr ney eon wha weiael ne ape REGIE cotean cae Bo'time id tle ewer te Costas tratesials pass to the benle bat siclly to Sern net oe eee This iepreses epost want aa fal queston’ iugeenms and imiigel whieh should not be the bass for estinat prosecution in the event of violation of its provisions.’ In this case, on May 12, 2012 Century Bank agreed with Milan Furniture to open a letter of credit, (LC) on the latter’s behalf to cover a shipment of hardwood from Vietnam for use in its manufacture of furniture. Notwithstanding that Milan Furniture imported the hardwood in question so it could use them in manufacturing furniture, Century Bank made you, a representative of your company, sign a trust receipt that made it appear as if Century Bank had turned over the hardwood to Milan Furniture for it to sell to others and to turn over to the bank the proceeds of the sale. The Supreme Court has long condemned such practice. Thus, it said in the Colinares case: ‘The practice of banks of making borrowers sign trust receipts to facilitate collection of loans and place them under 7339 SORA 609 (2000) ‘at p. 623.. FUNDAMENTALS OF LEGAL WRITING the threats of criminal prosecution should they be unable to pay it may be unjust and inequitable, if not reprehensible. Such agreements are contracts of adhesion which borrowers have no option but to sign lest their loan be disapproved. The resort to this scheme leaves poor and hapless borrowers at the mercy of banks, and is prone to misinterpretation, as had happened in this case. Eventually, PBC showed its true colors and admitted that it was only after collection of the money, as manifested by its Affidavit of Desistance’ ‘That the transaction was a loan is made clear from paragraph 1 of the agreement for the opening of a letter of credit between Century Bank and MHTI, ‘Annex A. It provides that, in consideration of the opening of the letter of credit on behalf of Milan Furniture in the amount of USS39,060, the latter undertook to pay the bank on demand for all drafts drawn against such letter of credit, with interest at 13% per annum. The title to the goods never really passed to the bank. Century Bank did not import them Pom Vietnam; it merely opened a letter of credit for the benefit of Milan Furniture. The supplier shipped the hardwood to Milan Furniture under the cover of that letter of credit. In short, Century Bank merely provided the loan that financed the shipment. Since the transaction was @ loan, Milan Furniture’s liability to Century Bank should only hee tagerded 29 civil, The criminal action apse you must fail. It is but fair and the investigating prosecutor or the court should see the point base my opinion on the A word of reservatior .d as well as on settled language of the laws involve pra, al pp. 623-624 WRITING LEGAL OPINIONS y judicial precedents. But, in the event the bank files a criminal complaint against you, there is the chance, however small, that the public prosecutor may just decide to file it in court, subjecting you to the hassle, expense, and risk that criminal trials entail. But 1 am ident that, ultimately, you will be absolved Please let me know if I can be of further service to you in this matter. Very truly yours, ANNA ELIZABETH A. DE DIOS There is one last point. Legal opinions have thetr lim You have to realize that not all legal disputes are best resolved through judicial remedies. Litigations are best avoided, it economics do not make sense, as when your client's debtor is practically bankrupt. In such a case, your client woul throwing away good money, by incurring expenses i and attorney's fees with no hope of recovering anything, Furth a legal confrontation could irreparably damage relationships that may be far more valuable than the benefits derived trom a judicial resolution of the dispute docket fees Law is based on wisdom but law is not wisdom,