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    Fundamentals of Legal Writing by Justice Abad (pp. 166-249)

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    5K views42 pages

    Fundamentals of Legal Writing by Justice Abad (Pp. 166-249)

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    Maevelyn Gelacio
    Fundamentals of Legal Writing by Justice Abad (pp. 166-249)

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    12. Writing Legalese ‘Another season why ordinary people find it hard to understand legal waiting isthe tendency of many lawyers to Use pecullarly legalese language. But sore will say that lawyers havea languagesll theic own and a peculiar way of putting heir thoughts into writing, They argue that injecting legal jargons is the traditional way of writing and any other method would Wolate tradition and diminish the ave and mystery to which lawyers are entitled. Your belie is of course entitled to respect, ‘But the changing world and the demand to be understood have ‘begun to challenge the validity ofthis elie. Legal clichés belong onbygone era Modern legal writing demands simplicity, clan, and accuracy. ‘As someone said, the law is a “deve for soca! conto.” The government enacts las to govern human conduct. Laws forbid feople from doing ev things or from hurting others, They eso Fequire people to do things that are needed for the good ofall in the community, Since effective obedience to laws requir fan understanding of them, laws should be written i plain and Srdinary English or Filipino that the average layman could ‘understand. Legal clichés. Admitedly, some lawyers are notorious for copying wort corphrates, usualy found in old ease report or law books, which {hay deem profound or which givea sense of importance to wha they vite They probably believe that their individual syle o twrting would somehow gain added substance and strength Using those borrowed words and phrases. But in truth, these bee mo en kt ta Fests reer et rs eee See ee Escape eee Enicnme torreon praia trs ‘Take these examples: Petitioner wapecfliy ob-| Respondent coun gravel tts that respondent court | sbused is discretion (638 fravely_ abused is dace: | spunat 1 word) fon. (Since petioner fled the pleading f would be erfaous frhim to deny Fire o the party making the submission: “respect Iya good word but when Mis Crown in na mater of form, the sincerity gone) Boon a carsory pene! of Section 21 wil ready recent this mightsound tke "ityou have the brane the meting fhe lw should be Gea © You ater a casual reading’) That nothing. therein wns Ientioned opty ste ‘sou the authority of Spondentcourttoteouea wort Of execution tn cases covered by the said rte. lest be footicy (is |The aw is supreme. might sound Ike, “You are | against 8) forgetful, so hear this") the lay is supreme. We hably submit hisright | The answer is nol (@ against seem to others hike a dedara- | 13) tion of your innate humility) ‘thatthe answer f the forego fg query is «resounding no Gfiyou want your no answer to round, use exclamation points) ‘Sufce it to state (iis might | Plame was in estoppel. ‘sound like, "With your lev- | against 9) 1 of intelligence, # would bbe definitely usokss to sy more”) that plant was in estoppel. "The argument is undenable | The argument fails to con (but probably better than de | slder that the accused did ing the argument enten- | not see the oncoming truck bles proving it falls to | 14 against 2) take into account the fact ‘thatthe accused did not see the oncoming truck, Petitioner's argument ie be- | Petitioners argument ig> rept of merit irealy lacks | nore the aw. (against 10) merit it would probably be bette to prove it rather than sleclare it ignores the lave Tous wo denial of the] Although he admitted the of inercourse having | sexual intercourse, Ignacio ‘place bat the accused | would insist that Ruby free id insist that compat | ly agreed toi she being his tid v0 willingly the ex | sweetheart. (9 against 33) ton, according to him, tha she was his sweel- English ‘Many peter, despite the language revolution that dives changing world, fo stick told English usages. That i © be fat Dut if you are the Kind that would want to adress eaders a well you might consider the following gestion Th the case ai bar, the court | Here, the court declined to ectined to apply the rae. | apply there, “Th facts inthe instant case | The facts are not disputed. (this phrase is supeeuous if fre discussing no other (ase) are not disputed. “The partics in.the case at |The parties have agreed to Dench (ame effec. a5 “in- | arbitration sant” case) have agreed to bitration, “The requirements are fo wit | The requirements areas fol- lows ‘reambles like the above legal clichés got inthe way and donot wd tothe meaning ofthe main messape of the sentence ‘Shi if your purpose ito wsite something about what you did in the cee or pas judgment upon the other persons point of view rather thn just show how hs viv lacks ment itis your choice THe ef for Manila, Arsiving | He left for Manila, Aciving thereat ne phoned his dad | ther, he phoned his dad “He wrote her a letter, copy ‘of which is attached fiereto a8 Annex A THe wrote her a letter, copy enclosed as Annex A. ‘Upon receipt ofthe aforesaid Aecision, petitioner fled his notice of appeal. ‘Upon receipt ofthe decision, petitioner filed his notice of appeal. When the witness saw the ceiling on fire, he was alarmed thereby. But the door Tock had jammed so by reason thereof, he left through the window. When the witness saw alarmed by it(r “it Jhim", But the door lock had jammed so he left through the window. “He approached the room and looked therein ‘He approached theroom and looked ia ‘As the crowd marched, he vent herewith. ‘As the crowd marched, he went with it ee brought « chair and sat thereon. Hee brought a chair and sat “The accused stopped the ti- ‘ycle and alighted therefrom. He forthwith dragged her to the treyee. “The accused stopped the tri- cycle and alighted from it. He then dragged her to the tricycle. Comes now petitioner | Petitioner, by counsel, states: through the undersigned ‘counsel, unto this Honor- ‘able Court, most respectfully states: ‘Sounding Forma Legal writing should not be made up exclusively of big, formal words dressed in tsxedos. The standard for al effective Wwetngsbeing understood. Somelawyers, nthe mistaken belief that they will sound more dignified insist on wing polyylabic word ike “accompanied instead of “went with” “informed” Instead of “tod.” Quite often, however they merely succeed in Sourcing like tuted shins ‘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 eight. Mario Reyes commenced | Mario Reyes fled an evic- ‘2 complaint for ejectment | tion sult against Josephine ‘opposed by the prosecution. against Josephine Cruz | Cruz. against 10) “The case against petitioner | The case against petitioner rans fic cunts” | Thea Aadlng ae herein was set for hearing. | was set for hearing based on the factual miliew | appellant's version of the “The said motion was “The prosecution opposed the presented by appellant. | facts. motion. (Quite often, you can Go without the word “sai tspecially when the article speaks of only one motion) “The trial was postponed to enable the accused therein to prepare his defense. “The tial was postponed to enable the accused to pre pare his defense. Petitioners contentions are | Petitioners claims are vague nebulous if not speculative. | if not speculative. Laura stated thatthe ac- | Laura said thatthe accused used detained her. Alcon- | detained her. On the other taro, the aceused declared | hand, the accused claimed that she came voluntarily. | that she came voluntarily. “Albeit incidental, his tr versal of plant's state- ment is portentous. “Though incidental, his re- jection of plaintiffs claim is ‘The duty ofthe court isto adjudicate the contentious postions ofthe parties. The coust’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. Te would then result that on Aisquisition, an. amendment fof the criminal information ‘cannot be allowed, Based on the above discus- sion, an amendment of the ‘riminal information cannot be allowed. Hie denied detaining Laura, contrary to her asseverations inher testimony, Hee 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 falk- ing with anyone. ‘Objectively and subjectively considered, the circumstane ‘es point towards appellant's innocence and are incor patible with attributions of sult. However viewed, the cir ‘cumstances point to appel- Tant’s innocence and do not support the charges. Inthe light of the foregoing circumstances, i tas tm 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. ‘The serious illegal deten- tion theory appears to be an ‘mpulsion upon complain- ant and her relatives who, frantic about the ardor of ‘appellant in his romance ‘complainant wanted to ‘keep appellant away from hher because she apparently no longer reciprocated his Tove with the same degree of passion. ‘Charging Joel with serious illegal detention seems to be thought born of the wor- es that Melba and her rela- tives had over his intense love for her They wanted to separate them since she did not seem to have deep feel- ings for him anymore. ‘The police accompanied the ‘The police went withthe ac- accused tothe courtroom. | cused to the courtroom, ‘The court informed the ac- | The court fold the accused ‘cused of his rights. of his rights. He appeared to be guilty. | He seemed guilty. “He consumed his lunch. Hie ate his lunch, He desired a lawyer of his Hie wanted a lawyer of his rested. The sheriff implemented the | The sheriff caried out the court order. court order. ‘The individual has been ar | He has been arrested. He likes the manner in Which it was done, He likes the way in which it was done. ‘As a rule, when you can choose between an easy, familiar ‘expression and one that seems more" dignified,” the easier word is the better choice if t means exactly the same thing, You may ‘of course use the more formal word without any adverse effect. But you need to guard againe the temptation of tying to sound dighiied. Your writing wil have natural dignity if iis serious land thoughtful Ie is when you try to doctor i up with high- flown, stately-sounding, polysyilabic subsites for direct and simple words that you begin o sound pompous. (Cheap Words ‘But this does not mean that you should always use short or familar words. Some words aze so familiar that they have become the equivalent of a large numberof other words. They have ceased to have any speciic meaning. Examples of these fare descriptive words lke good, nice, pretty, ugly, bad, awful, big, lil, fst sls, funny, crazy, great and fine, They ave used everyday to describe anything that sounds postive or negative. ‘This steak is good (tasty tender, fresh, etc). The movie is good (entertaining, amusing, well priced, ably directed, ete) Check the thessurus until you find a more precise meaning for your particular purpose, For example, the word “ozzy” has different shades: insane, mad, hinatic, unbalanced, psychopathic. cracked, nom compos iments, touched, beret of reason, moonstruck, scatterbrained ‘maniacal, delirious irzational lightheaded, incoherent rambling, doing, wandering, amc, feantic, raving, peated, eccentric, ‘demented, deranged, schizophrenic: Do not dxell nthe skum of cheap language when the thesaurus ofers you riches that you Selt-praise Many judges and lswyers tend to ad semaris in thei dlecsions pledge about how dligerty hey have workedon theicases hese mathe are commen and olen well itended ‘ut to non lawyers ey cound like selepraise-In hese moder ays judges nad lveyers might want fo colder editing ot Sedhvemtla sinc thy aver tention rm the main esoge ofthe sentence, For example ‘A meticulous scrutiny of the evidence of record [itis like Saying, “take note that Lam meticulous in my Work") shows that defendant of fered convincing proof of his claim, “The record shows that de- fendant offered convincing proof of his claim. (Il as Against 17 words) in ow considered. opinion [you must know that we Carefully weighed everything Defore forming. this opi fon”] the defendant acted in ba faith. ‘The defendant acted in bad faith (6 against 10) [Afr we have tornghiy tnd” conscientiously gone er the record of the Sse (es meat ard on this one), we are fufetly sais ot fone a, connot be les than sticenty) that the observations and concer Alone contained in the fore t2ing memornnda are fuly fubstontited sn sported {the pointe somewhat over ated) by the edence om recor ‘The record satisfactorily shows that the evidence sub- Stantiates the observations tnd conclusions inthe meat (7 against 37) ‘A careful scrutiny (yes, we farefully srutinize every- thing in the case”) of the testimonies coming from the complainant and the ac- cused fails o yield to the ‘conclusion that a finding of ‘The testimonies of Ruby and Ignacio do not show the lat- ters gilt. (12 against 27) ‘his guilt is warranted The Court had thoroughly | No amount of examination delved into the records ofthe | of the prosecution's evi- instant case and painstak- | dence could justify a finding ingly assayed. the’ evidence | of guilt of the accused, (17 fadiuced by the parties, We | against 30) find the eoidence ofthe pros ‘cution grossly insufficient 0 Sustain conviction. Sentence-tongth Variety ‘Try tolsten to people speak and you will observe that their sentences vary in feng. Even before yo learned hav to writ, you knew languages you heart spoken by others. And, though ‘you could read and write sentences later in years, your every ay Conversations have remained langely verbal. In other words, Your inner ears 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: Met you go out but be here by twelve o'clock ‘midnight a the latest. And when Isay twelve o'clock ‘midnight, I don’t mean that you can come home at twelvethirty in the moming or twelve-ffteen or twelverive. I_mean twelve midnight. Believe me because I warn you that you will not beable to go out ith your fiends again if you come home any Inter than twelve, Mark my word, Do you see how the lengths of the sentences vary from ‘medium to long, to shor to Tong, and to short? Til let you go out but be here by twelve o'clock midnight at the lates. (16 words) ‘And when Tsay twelve oclock midnight, don't ‘mean that you can come home at twelve-thiet in the ‘morning or twelve-fifteen or twelve-ve, (25) ‘Lmean twelve midnight. (1) Believe me because I warn you that you will not be able to go out with your friends again i you come home any later than twelve. (27) Mark my word. (6) Wiring isin the final analysis, a form of talk—preserved talk, Consequently, when you write sentences at more oF less lunform lengths, you strain the inner eat. You write unnaturally. ‘When you find pleadings of lawyers or decisions of courts boring for strenuous reading, i s your inner ear refusing to take what you read Forexample, the oppositor ofa petition forthe appointment fof a guardian for thee minors offered the following arguments to defeat the petition Romina is not qualifed 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 hhave an unquestionable record of the money she received on theirbehalf and the money she withdrew for expenses Ironically, she claims that she has much ‘experience in handling money for ther people since she once worked fora bank. What Is more, Romina was aware that the resources of the deceased parents ofthe kids show ‘no potential for growth and thatthe cash they have in the bank could just run out, Yet, she has not presented any plan to the Court for seeing the kids ‘through college with what resources they have left. Instead she squandered their money on unbelievable ‘expenses, given that in just seven months, she spent PL2 million in household expenses for them. This means that for two kids in elementary and one in high school, she spent an average of P156,00.00 monthly for them. ‘The above is of course faultless in grammar and clarity Anyone who prefers to write in thie way would not make any mistake, It isa corret way of waiting But to onlinary readers, the sentences aze invariably long and, therefore, seem unnatut for easy storytelling. If you want your writing tobe easie on the inner ear and interesting, the important principe to remember isto capture in writing the basic rhythm of speech. Vary your sentence length. Sonse the change in this suggested rewriting to vary the sentence length Romina is not qualifled to be appointed administrator of the cash and other properties ofthe ‘orphaned minors since she treated these a5 if they ‘were her own. For one 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, “iad she opened those accounts for them, she would have an unquestionable record of the money she ‘received on their behalfand the money she withdrew orexpenses. Ironically, she used to work fora bank. ‘The experience apparently did not profit her, given, the manner she treated the money Belonging to the more, Romina knew that the resources ‘of the deceased parents of the kids show no potential {or future growth. The cash in the bank is exhaus Yet, she has not presented any plan tothe Court for seeing the kids through college with what resources they have lft 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 PL2 million for them in household expenses, an average of P155000.00 monthly. Would you believe ie ‘iting Exercises ‘The following has been lifted from a Supreme Court decision but the names ofthe persons and places involved have been changed to protect he real partes. Someportions have been deleted to shorten i fr this editing exercise. The decision, as ‘rite, i logical and grammatically corset It follows a certain aiyle, however, that would be diffcult, exept for the most Giscering, to understand on fist reading, The author favors Jong, complex periodic sentences where the main noun meets fis verb after a umber of intervening digressions. And he does pot treat the evens in the ordinary sequence, The challenge isto rewrite it using the editing techniques you have learned above, fand makeit clear and appealing tothe ordinary reader. Fate apparently dealt alow blow to the Romero family when on the evening of November 30,1970, the daughter, Rita, not even fifteen then, alone in the rented room in a house at Aliw Beach, Zamboanga City, where she was living with her mother, who ‘vas then away forthe night was, according to her complaint for rape, compelled to submit twice ‘Decals of force tothe sexu advances ofthe accused “Hector Galas, also. boarder in the same house. There was no denial of the acts of intercourse having taken place, but the accused would insist that complainant {id so milling, 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 con her part, which could have been heard by those Staying nthe adjoining rooms. His testimony astothe sence 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 gli's version and sentenced Khim to reclusion perpetua. The severity of the penalty inflicted under the circumstances where, as is not ‘unusual in rape cases, there isa conflict of testimony Sr to what actually did transpire, led us to peruse swith greater care the records of the proceeding, x x As will be more fully explained, a careful scrutiny Of testimony coming fom the complainant and the [ccused fails to yield the conclusion that a finding of Bilt s 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 decelt gain entrance into the rented room where the sori ant took place. There was no ‘enial of the version by him and his two witnesses ‘that earlier in the evening the complainant was with troup, included in which was the accused, engaged fn drinking and light banter. It could very well be that the euphoric feeling induced by this young girl's imbibing the tuba wine led to the relaxation Of what could be inhibiting factors. Once inside the room, and with the accused apparently being 1 sullor whose advances had not been spurned, 10 put it at its mildest it was not expected that sexual Intimacies would take place. It could very well be that the young lady did not initially agree to indulge jn an act of intercourse. Under the circumstances, however, with coaxing and cajoling on the part of the accused, there was nothing unlikely inthe stage fof sexual congress being reached. What is more, i happened twice. There could have been a third time, ‘except that It was foiled because the chair on which 18 was atempted gave way die to the combined velght of the participants: Fhe man bad no weapon with eich to intimidate the complainant There ‘rerenointsation thal there was oppostionon her Dar. She did not yell or scream The to witnesses On ether sie ofthe rom, separated only by thin plywood partion, certsnly would have Been aware ny hating Tht cern as wt ‘ape_ Moreover to sepa the acute layed ut Sawn: Even ery the next naming they wer xen together xx Hence scqital ought lo have ben the proper verdict L The accused has in his favor the presumption of innocence. That is a mandate of the fundamental law. Itmay be noted that even when the previous Organic Act did not so provide, a defendant according to the early case of U.S. x. Asiao, decided in 1902, with Justice Torres as ponente, “must be ‘presumed tobe innocent unti [his guilt s proven by Satisfactory testimony... The burden of proof is thus ‘on the prosecution to demonstrate guilt. Every vestige ff doubt having a rational basis mast be removed. ‘More specifically, where the offense charged is ra through force, here must bea showingof eompulsi being resorted to and coercion being employed. The element of voluntariness must be lacking. xx 2. The opinion of the Cour is not to be mise Interpreted. It goes no further than to acknowledge that the proof submitted on behalf of complainant didnot measure up tothe exacting standard required In the Hight of the applicable constitutional provi ad ie sue precedent eng erpect forthe onstutonal ight an secu ‘a reversal is called for. xx x ~ a WHEREFORE, the decision ofthe lower court is set aside and the accused is acquitted of ape. 13, Writing Legal Opinions Every so often, 2 client would seek your legal opinion on some matter of concer to him. Before rushing into an opinion, Jhowever, you would do wel to keep the following in mind One. Ascertain the purpose for which your client seeks your opinion. Does he merely sant t knw his rights? Does he ned to shod your opinion 10 others? Does he have 10 make en important decision that could have deep repercussions Jor him ad olers? I he ‘cing 2 potential wat? Your client is nota lawyer and, unless you go deep into his reason for seeking your opinion or ty 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 cas, a client asked her lawyer his opinion regarding ‘what constituted poychological incapacity for marrage. ARer her lawyer told her, she preoccupied herself with establishing evidence thather husband was psychologically incapacitated for ‘marriage to the point that she strained to fit the facts of er case lito what the law required. She gave this evidence toi lawyer. But the Court was unconvinced and did not grant annulment Yet as it tumed out, the couple was inthe fist place married without a propor marriage license. Not being at fault, she was entitled to annulment on this ground but she had to go through somuch expense and hardships in establishing a weak case based ‘on another ground because, before responding to her query her lawyer dd not bother to find out what she needed his opinion for Do not settle, therefore, fora hypothetical question. ‘Try to yur client's test If you cannot might be preferable that refrain fom givingher an opinion or that you make t doubly toher that the opinion you give might be the wrong one for In this way, you avid taking the blame for any mishap. ‘Second. Do pre-work. Get al the facts you need for forming ‘competent opinion. A wrong factual premise will naturally ‘wrong legal diagnosis. Go over the materials you from your dient, ascertain the legal dispute involved, and ‘Put down in writing the principal issue that it produces. Next, Imake a summary ofthe relevant facts of the ease and put them in Correct sequence. Identify the issues that have tobe resolved and ‘ough out the arguments that support your thesis. ‘Third. After pre-work, do the write-up, ollowing 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 sely in rendering your ‘pinion Mlustrative Case: Chan v, Century Bank Below isa sample legal opinion. Like similar examples in this book, do not consider ita prescribed form. Forms ate hardly Jmportant.Itis substance that matters althoughy in legal writing, Substance must met certain minimum requirements of content ‘These are: a) background facts that adequately introduce the fssucs in the case, b) a statement of what those sues ae, the pesition you take on those issues, d) the arguments that may be Jade against you, e) the arguments in your favor and f) what you want your reader todo under he icumstances Format and fyle are up 0 you. September 14,2013 Me Rogelio G. Chan. Milan Furniture Co, Ine 245 Juan Luna Street inondo, Manila ‘Dear Me. Chan: Here isthe opinion that you requested. ‘The facts, as T gather fom you and your documents, areas follows: ‘On May 12,2012 you applied with the Century sak in Binondo, Manila, on behalf of Milan Furiture Co, Inc, fora lelter of credit, Annex A, covering its importation of hardwood fcom Vietnam. ‘On arrival ofthe goods, the bank agreed to advance ‘the payment of thelt price to your supplier. In turn, ‘you executed a promissory noe in the name of Milan Famiture, Anex 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 ofthe 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 ils promissory note to the bank ‘when t fll ue, on October 17,2012 the awyersof the Dank sent you a demand letter, Annex D, requesting, fall payment ofthe debtor etum of the goods, | understand that, on receipt ofthe letter, you ‘tied to negotiste with the manager of the bank, rejected your offer, stating thatthe bank did not accept igonds in payment of debts owed it Since further iegotiaions ao failed, the bank sent you a final demand for payment on December 4 under a threat offing a eximinal complaint for estafa involving the trust receipt that you executed in its favor. “The question you pose is whether or not, under the above facts, you may be held liable for estafa under PD 115, the Trust Receipt Law, in relation to Section 1b) of Article 315 of the Revised Penal Code. In my opinion, since the bank opted not to accept the goods even when you offered to retum them on behalf of Milan Furniture, it should be deemed to have withdrawn its earlier demand from you to pay or “returm the goods covered by said Trust Receipt” Effectively, the bank chose to consider Milan Furniture to have already bought those goods, altogether removing the wansaction from the coverage of Section 13 ofthe Trust Receipt Law. {base my opinion on the following: “The relevant provision of the Trust Receipt Law orPD 115 provider. SEC. 13, Penalty Clause. —The failure ff an entrustee to turn over the proceeds ff the sale of the goods, documents oF instruments covered by a trust eceiptto the ‘extent of the amount owing to the entruster ‘ras appears inthe trust receipt or toreturn Said “goods, documents or instruments If they were not sold or disposed of in accordance ‘with the terms of the trust ‘eccipt shall constitute the crime of etafa, panishable under the provisions of Article ‘Three Hundred and Fifteen, Paragraph ‘One (b), of Act Numbered Three Thousand, Fight Hundred and Fifteen, 5 amended, ‘otherwise known as the levised Penal Code. xxx P 1M, Article “The related provisions of Section 1), A 55 of the Revised Penal Code, under which the Mottin is made ofall tates ART, 315, Swindling (staf). — Any petson who shall defraud another by ny Erthe means mentioned herein Blow x3 1. With unfalthflness or abuse of conten, namely b. By misappropiating or converting, to the prejudice of another, snc aay in, Poona ropery recived by the offender in tsk Fron commission, or for administration, or under any other obligation invelving the duty to make delivery of o etm the same even thowgh sch agate {otlly or purty qoaranteed by » bon ory denjng havingeceved sath money, foods, or other property.” rom the above, the following are the elements of etafa involving a trust receipt: 11. The entrustee received the goods under 2 trust receipt from the entraster under an obligation to turnover the proceeds ofthe sale of the goods orto return said goods: 2. The entrustee misappropriated or conver- ted the goods by failing to turn over the proceeds of thelr sale orto return said goods tothe entruster, The misappropriation or conversion is to the prejudice ofthe entruster an 4. The entruster made a demand on the centrustee ‘One of the elements of estafa involving a trust receipts thatthe entrstze Lin this case, you or Mian Furniture received the goods under 4 trust receipt from the entruster lin this case, Century Bank] under ‘an obligation to turn over the proceeds ofthe sale of ‘the goods orto return said goods. The Trust Receipt Law, PD 185, provides in Section 11 that the lability, for estafa under paragraph 1(b) of Article 315 of the Penal Code arises in ease of “the failure of an centrustee to turn over the proceeds ofthe sle of the ods... to return said goods” ‘The trust receipt inthis ease, Annex A, echoes the above provisions ofthe Trust Receipt Law. Under it, Milan Furniture or you a its signatory, undertook "to tum over tothe BANK the proceeds” ofthe sale ‘of the goods or, “in ease of nan-sle,” to “return the goods covered by this Trust Receipt to the BANK ‘upon its demand.”* ‘Bt the terms ofthe trust receipt does not end there. The trust receipt, Annex A gives Century Bank an option not “to accept the return of the goo” In effec, Century Bank could chose to regard such goods already sold to Milan Fomiture even though the latter could and wanted to return them. The seventh paragraph ofthe Trust Receipt, Annex , thus reads ‘We agree that the BANK isnot obliged to accept any return of the goods unde this ‘Trust Receipt by us orto consider any return thereof if accepted or demanded by the BANK, as satisfaction of our indebtedness tothe BANK. Tn menecanece Century Bank in fact availed itself ofthe above ‘option. It opted not to accept the goods even when ‘you offered to return them. Consequently, Century Bank should be deemed to have withdrawn its cartier demand that you or Milan Furniture pay ‘or “return the goods covered by said Trust Receipt mediately.” Effectively, Century Bank chose by is action to consider the subject goods sold to Milan Famiture, altogether removing the tansaction from the coverage of Section 13 ofthe 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 fr with abuse of confidence failed to return what was merely entrusted to him and appropriated it for his ‘own, Here, neither Milan Furnitere nor you could be considered as having unfaithflly or with abuse ‘of confidence misappropriated and converted the [goods subject of the trst receipt. Century Bank did ‘not want those goods back. I had regarded them sold ‘outright to Milan Furniture. Te latter’ 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 fver the proceeds of the sale of the goods. of 0 {elurn sald goods ..ifthey were not sold or disposed fof in accordance with the terms of the trust receipt shall constitute the crime of estafa." The essence fof the penal provision of the lav, therefor, is that the entruster fhere, Century Bank] has entrusted the good to the entrustee [Milan Furniture or youl for him to sell. Once sol the entrustee was to tum over the proceeds ofthe sale fo the entruster Section 13 does not embrace instances where the ‘goodsare turned overby theentrustor tothe entrustee forthe latter's use in his oven business. This is clear ‘rom the ruling of the Supreme Coust in Cotinars v. Court of Appeals that read Also noteworthy is the fact that Petitioners are not importers acquiring the ‘goods for re-sale, contrary t0 the express provision embodied in the trust receipt. They are contractors who obtained the fungible ‘goods for their construction project At tno time did tile over the constraction materials pass to the bank, but directly to the Petitioners from CM Builders Centre. This impresses ‘upon the trust receipt in question vagueness. and ambiguity, ‘Which should not be the basis for criminal prosecution in the event of violation ofits provisions, In this case, on May 12, 2012 Century Bank agreed with Milan Furniture to open aleter of credit (LO) on the Iater’s behalf to cover a shipment of hardwood from Vietnam for use in its manufacture of turiture. [Notwithstanding that Milan Furniture imported the hardwood in question 20 it cr ‘manufacturing furnitere, Century representative of your company, sign a trust receipt that made it appear as if Centory Bank had turned ‘over the hardwood to Milan Furniture for it fo sell to others and to tum over t the bank the proceeds ofthe sale. The Supreme Court hat long condemned ‘such practice. Thus it said in the Colnares case ‘The practice of banks of maki borrowers sign trust receipts to facilitate collection of loans and place them under = 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 the mercy of banks, and is prone to Imisinterpretation, a8 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 ifs Affidavit of Desistance. ‘That the transaction was 2 Ioan is made clear from paragraph 1 ofthe agreement forthe 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 forall drat drawn against stich letter of credit, with interest {54 per annus, The litle to the goods never realy passed othe bank, Century Bank did notimportthem from Vietnam; it merely opened a leter of credit for ‘he benefit of Milan Fumiture. The supplier shipped the hardwood to Milan Furniture under the cover of that letcr of credit. In short, Century Bank merely provided the loan that financed the shipment. Since the transaction was a loan, Milan Famiture’s Hability to Century Bank should only be regarded as civil. The criminal action against you must fail, It is but fair and the investiga prosecutor or the court should see the point. ‘A word of reservation: Ibase my opinion on the language of the laws involved as well 2s on settled juiclprecedents Bu nthe even the bank es» riminal complaint against you, tere othe chases Homer al at the plc proctor nay Js ‘ofl itn court subjecting yout the hase, ‘expense, and ak that rial tae cntal But Lass onldent tha altimately, you wil beabaaived Please let me know if can be of further service to you in this matter, Very truly yours, ANNA ELIZABETH.A, DE DIOS Flr bee spin Lp oposite re rele that no a le dlp a en utc renetioeUtgatoneare bat sled a is donot make sens, when your sensors ltr Insaco yo et we ero ring goodman nigenpens rons orn en wth hopect menteog saying sete {Law isbosed on wisdom but law isnot wisdom. 14. Writing Trial Memoranda Intrialsby jury inthe United States and other countries that have adopted that system of hearing and deciding cass, tial is usually followed by oral arguments from both sides. Counsel Stands before jury of ordinary men and women, orally sums up his eee and tiesto persuade them with evidence and arguments to accept his client's point of view. In the Philippines, only one ‘ersomthe judge who is tained and experienced inthe law— Sits to hear the casein its entirety and passes judgment on the “lspute, Because eases are tried in installments over a period of time, usually a year or two, counsels often need to argue their tases at the end of trial, They do this by written memoranda ‘As we sald eatlie, prework is indispensable to a substantial and convincing tial memorandum. tt will do well for you, therefore, to go over the pleadings, the transcript of the testimonies ofthe witnesses, and the documentary exhibits ‘Working on these materials, identify the legal dispute involved tnd, based on it. draw up the principal issue in dhe case. From there, proceed to make an outline ofthe relevant facts that the ‘opposing parties claim and pinpoint the issues that you need to dress. ‘After pre-work, write up your client's memorandum inthe case: Make sure thal your memorandum embodies the following, Indispensable parts 1. A.summary ofthe nature of the action and the court proceedings so far had init; 2. Asummary ofthe facts of the case—the transaction oF event that brought about the legal dispute and the lawsult--as seen rom the opposing points of view of the partes; 3A statement of the relevant sues thatthe partes Present for resolution; and ae Pee 4. Anorderly presentation of th anguments hat support ‘your client's position. . Ilustrative Case: Maranan Gonzalo Realty Ina eae the president of corporation acting in acting in his own tame leased oncoftheproponothicompany foathieg pren 4 fed rent for 23 years. Aer the pret le the ena Trough lawsuit to enore the contac gaat hs compe. folowing te al dtd company le nemornr case reproduc blow shoe a pei uch Pleading Gernin tals have Ben altered to preserve the pay parties involved, Eas usa sr Republic ofthe Pili REGIONAL TRIAL COURT [National Capital Judiclal Region Mandaluyong City, Branch 156 RAMON C. MARANAN, Plain, versus: SCA Ne. cv 0341 GONZALO REALTY CoP, Defendant. DEFENDANT'S MEMORANDUM Defendant, by counsel, respectfully subi ‘memorandum in the case The Case Plaintiff Ramon C. Maranan filed this action for declaratory relief and damages against defendant ‘Gonzalo Realty Corporation, claiming that the Court needed to ascertain the rights of the parties under a ‘contract of lease between them before it terms were ‘Violated In its answer, Gonzalo Realty claimed that itdid not authorize the contract of lease and that the action was improper for declaratory relief. The parties claimed moral damages and atlomey’s Fees Against each other, ‘TheFacts At the tral, Maranan gave his version of the vents. He had been rentingtheland in question from Gonzaio Realty from Apri 2002 under a Contract of Lease, Exhibit A (Transeript of Stenographic Notes, ‘August 27,2012, . 8). Ted Gonzalo, its president and

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