OBJECTIVE LEGAL ANALYSIS “He that will write well in any tongue must follow this counsel of “Aristotle: to speak as the common people do, to think as wise men Po Ja; 0 should every man understand hm, and the judgment of wise men allow him.” ~ Roger Ascham, Toxophilus (1545) “Be short, be simple, be human” ~ Sir Ernest Gowers, himself a barcister* | To write an inter-office memorandum with the following parts: a) heading; b) issue; c) brief answer; 4) statement of facts; and e) discussion, OBJECTIVE LEGAL ANALYSIS ‘This type of writing provides a balanced and objective discussion of a legal issue. Precédents and authorities that govern the question arecited. Legal advice and recommendation are likewise offered. Examples: Inter-office memoranda and opinion letters to a client I, INTER-OFFICE MEMORANDUM Also called the “objective memorandum” is usually prepared by a junior associate or paralegal and addressed to a Gowers (1087), The Complete Plain Words, Penguin Books, London, 3 ed (Greenbaum and Whiteut ed), p18LBGAL WRITING ‘A Competency-Based Approach senior partner giving an objective analysis of a legal question, ‘While letters.to clients may also involve legal analysis, am inter-office memoranda being addressed to a lawyer for possible court action, demand a more detailed research replete with legal citations, A. Parts of an Inter-office Memorandum L 2. Memorandum Heading Example: TO: Atty. Marito R. Reyes, Partner Reyes, Reyes and Associates FROM: Atty. Julio N. Delfin, Junior Associate SUBJECT: Declaration of Nullity of Marriage Marieta Lansang v. Procopio Bantugan DATE: December 10, 2006 (the date the memo is submitted) Memoranda headings can be structured in many ways, depending upon the practice of the firm. Usually a standard memo heading is required of employees. Some are pre-printed. Heading information which are not aligned vertically must be avoided since it looks unprofessional. Example: TO: Atty. Marito R. Reyes, Partner Reyes, Reyes and Associates FROM: Atty. Julio N, Delfin, Junior Associate SUBJECT: Declaration of Nullity of Marriage ‘Marieta Lansang v. Procopio Bantugan DATE: December 10, 2006 ‘Thelssue (alsocalled the “Question Presented”) — states in question form the issue/s sought to be resolved by the memorandum. The following must be 3. OBJECTIVE LEGAL ANALYSIS specified: the law, the core issue, and the legally relevant facts that have bearing on the issue. The reader must understand the question without having to refer to the facts. Poor: Whether plaintiff is entitled to declaration of nullity of marriage. Better: Whether the behavior of the husband (the “opposing party") in joining a cult that advo- cates free love and sex (beginning his college days) amount to psychological incapseity as defined under Art. 36 of the Family Code. ‘This part should also itemize other sut-issues crucial to the over-all determination of the case. Example: (sub-issues to the main issue above) Whether the act/s of the plaintiff-vife (as “dient”) in abendoning the conjugal home and dhildren amount to “in pari deticto” thereby denying her of remedies under the law. ‘Whether the plaintiffs still entitled tocustody of the children in spite the fact that, though still mihors, they are over 7 years old. For a tort or damage suit, the issue may be stated as follows: Poor: Whether the niece ean recover for negligent infliction of emotional distress. Better: Whether, under the Civil Code, a niece who witnessed her aunt hit in a car a:cident some 10 meters away can recover damages from emotional trauma. Guide questions: Have you ... + remained factual, objective? + summarized your question clearly, concretely? Brief Answer (also called the “conclusion”) ‘The “Answer” is the response to the “question presented,” hence may be “yes,” “no” or “mayte not.”‘A Competency-Based Approach ‘This part summarizes the elements of the law and| how the facts apply to the elements. Cite the weakest as well as strongest arguments why the court would| likely decide in favor of the firm's client. Then give your recommendation. Example: “Yes. The Supreme Court defined Art, 36 of the Family Code as that incapacity of a party to comply with the essential elements of marriage. Such incapacity must ante-date the marriage, and be of such gravity as to be incurable. Active support, antedating the marriage, to a cult that advocates free sex amounts to a wholesale rejection of the entire concept of marriage. The wife's leaving the conjugal dwelling suggests the depth of her suffering from her husband's incapacity rather a liability to the case. I recommend filing the case.” Guide questions: Have you. + answered the question at once? + stated what law or rule is applicable? + summarized the reasons leading to the answer? + given your recommendation? Statement of Facts Give a surnmary of the facts, including name of ‘firm's client, the name and address of the opposing party, the nature of relationship between the client. and opposing party, the type and date of contract entered into between the parties, and other relevant details. Ibis preferable to state all the materiel facts, preferably in chronological order. A material fact 3 one upon which the outcome of the case will depend. It is something that will affect the case one way o | the other. Include all material procedural facts (e OBJECTIVE LEGAL ANALYSIS names and residence of parties, and their children, time and place of happening of material event say of marriage in nullity cases, date of separation, etc) as well as the substantive facts (e,g., manifestations, of respondent's behavior indicating psyctological incapacity, that the same antedated the marriage and is of such gravity as to be, possibly, incurable.) In the statement of facts, itis preferable to use “objective” and “neutral” language. Opinionated: Respondent is « hopeless alecholic or He is an inveterate drinker. Objective: Respondent drinks at least 6 bottles of beer a day. Opinionated: Procopio made the plaintiff his punching bag. Objective: Procopio struck plaintiff on her head thereby cutting the upper part of her oe Guide questions: Have you ‘+ included all legally significant facts? + given enough factual background? + considered the best way the facts can be presented (e.g., chronological or topical? * used objective, neutral language? ‘© included both favorable and unfavorable facts? Discussion Discussion is the heart of the memorandum, ‘This section asks you to explain the law and the facts. A deductive (general to specific) method is, recommended. Begin your discussion with the thesis paragraph. By this is meant that you, have to announce right in the first paragraph your conclusion, to serve as a “road map” or “tour guide” to your analysis. The thesis sentence answers the question: “what is your point?”‘A.Competency Based Approach ‘ Tips: + Begin your paragraph with the thesis state: ” ment. it is advisable that the statement be in." affirmative form. LEGAL OPINION LETTER (TO A CLIENT) Example: Monogamy is the bedrock of mar. riage, A husband who philanders ‘and is an active member and sup. + 4 porter of a cult that espouses free’ sex is thus incapable of complying “Never write a letter while you are angry.” i with the essential requisites of mar. ~ Chinese Proverb riage + State the rule or the applicable law, and discuss “The art of art, the glory of expression and the sunshine their meaning. a of the light of letters, is simplicity.” : ‘The thesis statement must have legal | — Walt Whitman support. Cite authorities 4 + Explain how the law applies to the set of facts, of Point the facts that fit to the elements of 24 the law or authority cited. 3 Purpose: ‘To be able to write 2 “complete” opinion letter (to client) ‘gonsisting of: a) a heading; b) concise statement of issues; ¢) brief / goswer; €) statement of facts; e) discussion; and f) conclusion and “yocommendation. To avoid superfluous, overly formal, tactless or ‘hackneyed expressions common in letters. © Discuss other relevant authority. ‘After the opening paragraph, subsequent <1 paragraphs can discuss the facts of other’ : relevant cases. A legal opinion letter, like the inter-office memorandum, gives “gn objective legal analysis of the client’s legal problem. Unlike the Example: Urgent: Bx Parte Motion: for = - Postponement 5 b. Litigated — one made with-notice to the other party giving that party opportunity to comment or oppose’ the motion. Every written motion ,e, set for hearing by.the applicant, PERSUASIY®, LEGAL ANALYSIS 4; |, Pro Forma = pro. forma: motion ig Uiterally, © *. a smo}iénin form/only, It ig one whick has the ‘Br® fornia whet it does not specify the findings + 6r Conclusions in the judgment-which are not ‘supported by. evidence or which are coatrary to law making express reference to the pertinent evidenea or legal provisions. : ©. | Spécial Motion-—.A rpotion directed to the Giscretion ofthe, coutt arid usually, involves San investigation of the facts on, which the application is predicated* —- Example: Motion’ for Exécution-(efter the Judgmelit has become final and executery) Sample fern of a Motion to Amend Answer (With Notice of Hearing) (Caption and Tite)’, MOTION FOR LEAVE TO st ~| AMEND ANSWER« -. 2% Defendant, by eonéel, respectfullymoves x this Honorable Court for leave to amend his ‘ : JANSWER filed dated December 1, 2006, and = * [ox this.purpose hereby presents:the attached :AMENDED ANSWER,’ wherein “the ‘amend- 1 | Bxgnaple: Motiondo Dismiss : ¢, :Mojion“of Course :—' a inotion for reltef.to- Bo Tees teteowog a y is entitled as a maties : of right ‘and not of discretidn on the part pf thes. » Sepurt: and which requires no investigation: of $3 Et © Sthe. ttuth ‘of any" allegation or suggestioncom, * whidhiitis founded. * z ere FE SGro v Vale, 8 SCRA. : | Bocce; supra, uate46. eat Fe SAinencimentsas arate of right, A forty nay aibend bie plea ince aaa feet oright at any ine before a responsive pleading is cerved er, inthe ease of — within 20) days after it is served” ules of Court, Rule, se. 2. ae Example: Motion-for Execution-(when the: we decision has become final and executory) ‘Amindments by lédve of Court “Except as provided in the next preceling sez- ubtantal amendinents may be made only upon leave of court. But such leave ig eed faye the nt ht the mation was ade whe fo Orders ofthe court upan the matters provided inthis ection shall be made mation filed in court, snd ater naice to the adverse party, and an opfortanity ptheard"Rules of Cour, Rule 0, se. 2 Tiara ection 28. sel aust 4 : Ee ano Bain SP 10826, Janusry 1,388) stad by F.Moren Pipi Law Ditonary, (era Reyes Ine. 1980), 630.; : compen Bed Appreneh PERSUASI/@BOAL/ANALYSIS sag Brief Bh A brief, alsé. called: “memorandiini. of law,” is a document présented to, the’ appellat Wt arguing why © “ithe revigwing court should’affirm of feyerse the lower court's decision, aé the edse may be. The brief establishes the legal argument for the party based on legal-precedent J ments oughtité be incorporated are indicated” by being underscored tee WHEREFORE, in order ‘that. the real: matter in dispute and all matters in'this.action: maybe completely determined, itis respectfully: prayed that the attached AMENDED ANSWER. stain; i : Be admitted. ~ ae é (citing the etrolling cases) or relianep on the jaw and i ea Ormoe City, January 10, 200° By hind ie tes pre * we 5 34 “Brie?” is Grom, the Latin brevis,.aind, Ue French : F : a agar eee iene . Briefe, meaning a short or condensed statement. Tt is a : a LL pg ote eee city bg concise atatement, prosented to the court, on the points t ical Streets Mage ee © and queétighs in controversy, and ky feir argument on the : z fe time 09898 s acts and law of the Gage £0 ‘asst the'court in ar-iving at PTR No, 5615180; e 1 just and proper conclusion. ; ; Jan. 7, 2007 Maasin City noes : Sicttce ‘Trial briefs are thosé filed before 4 reaolve disputed mattérr; appellate brief ar to appellate, courts. The appealing party submits his appellant's brief first.” The responding party, called the appellee, answers with his appellee's brief within the designated time. 1. , Contents of Appellant's Brief, ‘According: to the rules. the appellart’s brief E> ghail'eontain‘the following, in the order indicated ~ g,) A*subject index of te ‘natter in the brief jwith a-digest of the arguments end page courts to NOTICE OF HEARING ‘To: ATTY. MARINER T. PULIDO Counsel for Plaintiff : t : Sir: Please take notice ‘that. on’ Friday, 7 January 19) 2007 at_8:90 AM. ,or Bs soon : thereafter: as’ counsél may. be heard, ‘the undersigned attorney will ask the. Regional Trial Court 6f Ormoc City (Br, 12),to grant the E foregding motion. Hee f E MARITO T-JULIA ' ms « “Attorney for Defendant ° Pita five GB) das fom resp of I note insseven (7) Copy of this Motion with Notice of Heariiig fort ® snot vis “root of ebrvic.of to (2) capes" to the-appelle, The-appelle's brit, ¥f Fegistered mail. on January 10, was sent: coin 1 copies with po wh. opie’ te appellant, 8 : Sc Sor Gun No. 4) to Atty. Mariner, T. Palide® a0 or ane ns witha rt re han Bo dye fe eit ot - ‘of 231 Burgos Street.,: Ormoc “City, personal 5. F's) appollei's-brief, the appellant: may file the reply: brief answering paints in the ete BE anpractical die to distance.” = Si giro coved gma ret Se Rie tC beni o ge Rat memoranda in spleen ertorar robe, panda, 2 SMARYTO T. JULIA «lf Secret nd habeas exp eave, hepato tal Be ey of wily er ; reece htilneeabl pe tir 0 bet eit Mtho notice issued by the clerk that all'the evidence, oral and documentary, is “Gay attached to the rong The alae f he appellant to le hi memorandum tin the period therefore may be a “ground or dismissal of the appesl. Rales of EG Roles see 10. sft of Court Rule #4 sc. 18 Filing of amended pleadings. “When any pleading is amended, a nel py af the enti leading, incarporating the amsandtnent, which shal be indicated M7 Sppropriate asks, shall be Med, Rules of Court, Rule 20, se.7.‘A Competency-Based Approach references, and a table of eases alphabetically arranged, textbooks and statutes cited with references to thé pages where they are cited, ‘An assigninént ‘of errors which shall be & separately, distitiily and concisely stated with. ‘and jumbered consecutively. ee Under the hesding “Statement of the Case,” _arcléar and-eoncisp atatemeyt of the mature of = ‘the.action, a simmary of the proceedings, Sghe appealed rulings. and orders’ of thes “edurt, the nature of the judgment aid‘any other Matters necessary to.an understanding of the nature’ éf.the éoutroversy,:with references tothe record: Bhi ‘Under the heading “Statement of the Facts,” * poe |: Under‘ the“ heading “Argument,”:the appel jant’s arguments on each assjgument, of error ' with page ‘references to the fetord. Thevau. thofities relied upon shall-be cited by the page of the.report at wh gh'the case beging.and 1 which:the citutien is. Under thie heading “Relief,” a specification of “the order or judgment which the appellant seeks} and ans In cases not brought up by record on ‘appeal 3 the appellant's brief shall contain, as a appendix, a copy of the judgment or order appealed from. Sears PBRSUAS(Vi LEGAL ANALYSIS 2. | Contents of Appellee's Brief brief! shall ‘contair in the ‘ L of if and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with Teferences to the pages where they'are cited. Under thé heading? “Statement of Facts,” thé appellee: shall state*that-he accepts the statement: of facts in thé appellant's brief, or under the: heading *Counter-Statement of Facts,” he shall point out such insuficiencies - Gr inaccuracies as he Heligves’ exis) in the appellant's statement of facts with references . tothe'pages of therecord in support thereof, but withoot repetition of malters in Uhe appellant's statement of facts; and Under the heading “Argument,” lee ‘Shall- st forth ‘e argementetis thoes a each. assignment of error with page references to the record. ‘The authoritiesxélied on'shall be ‘cited’by the page of the reportiat. which the case begin ‘and the page of the report on which the ‘on is found. 2 legal conversation” and represent the “pinnacle of thejlawyer's-craft.” Its organization,: presentation, argumentation; and writing styl st be e iust be excellent. Rules of Court, Rule 44 see. 14‘A Competency Sesed Approach 4, Suggestions of the Brief : a. Strict,adherence to thé appellate rules-of pro. cedure. The rules are designed to give the court the bést opportunity to function effectively-and efficiently. The rules contain clear suggestions iow the courts want things dene before them, ‘less or. willful disregard of the rules ini . indicate two things: eithier the‘lowyer is tao in * experienced (or too youing) for.the court. to.rely ‘on, oF he dées not respect the curt enough to H follow its rules. ‘The former smiacks.of incorhpe- tence, the latter of arrogance. Either way the court would not:think highly of such lay ‘The following are the appellate:tule: : the 1997 Ralés on Civil Procedute: 2 Rule 40 — Appéal frdim Musticipal Trial’ a Courts tothe Regional Trial « . Courts 41 — Appeal from the Regional Trial Courts 42— Petition for Review from the Regiorial"Trial Courts to the Caurt of Appeals” (Appeals from: RC. 7 “Agcisioni rendered’in the oxreise™ 3 Zofits Appellatejutisdiction): } "43 — “Appeals from’the Court of ‘Pars ip Appeals and Quasivjudicial’ ¢ Se + wAgencies-to the Court of Appedlsi : - © “44 — -Prodedufe in the Court of Appeal 2 sin ordinary appealed casgs ‘46:— * Appeal by certiorari'te the Supreine Court. § : Adherence to, the ries means thatthe : laivyer submits his brief'in due form within 2& time specified by the rules. b.° Bacli of the required ‘elements in a brief mast be seen as an opportunity to persuade. The statement, of the case, statement of the foc: e a PERSUASIVE LEGAL ANALYSIS and statement of the issues must be stated clearly and simply. Research. Begin your jedeiireh by réading the {| cases thiat;the court a quo eitied in its decision or order; Likewise look up on other eases which ~ may shéd ‘ight on thé-igsue raised on appeal. Reading articles or opinions of law authorities ‘containéd in-journals ‘and textbooks will help, and you may cite them, q ‘ Organize yoiir brief. It is referable to make detailed. outline of:the things you want to hie incnded in your brief. These include your * iggues, iain arguments, cases and authorities cited: ‘The. arguments should’ be presented in order. Each main section should be’ preceded by a shért, single sentence statement of the aigumont." The arguments should -be fully conceptualized, simply written and bolstered by authorities sind Supreme Court cases. Use ‘proper citation for ail the cases and i indluded in your brief. eect » Rewrite to:make your points sirapler and ‘easier to understand. As the saying goes, there is rio such; thing-as good writing, only good rewriting... neExceptions to the Rule on Liberality - “"fhe Handbook on the Law on Pleaiings by: ‘Marcial 0.7. Balgos* }dentified 5-instances when}. “the rule on liberality was not applied. These are: a.” When the uncertainty and ambiguity in the allegations are systematically utilized as a: tactic to trap and confuse the adverse party, J Where the anSwer. is “evasive,” and the? Uncertainty and ambiguity are adopte: «5 Mtacties” to “confiise the plaintifiy" as to wha : facts'imust be proved oF what issues must.be, inet, the Supreme Court fefused téallow validity of the answer and Sustained judgment onthe pleadings”. oe? 2 pe b. Wheii the’ allegations'are do-franied thiat 1 are #0 vague and unceriain as to, leave the court guessing as to what the pleadér wants. ‘The Supreme Court struck down a peti tion which enumerated the several orders is ued by thé inferior eoust,"but did notjstate = which of the orders’ a¥e being questione ‘the petition: The petitidn was declared “vague” £4 4 sand “indefinitg," and thie Court added:thatithe 2. administration of justice” is “not & matter of {guess work® saying that the colris should fnot be left.to: conjectures th the determination of » jssues,? ar “be led to,,.error of injustice ‘ploring:in the injist of uncertainty andi ‘the intention of the parties or thejr comnsel; ‘When dom the inadeqiacy of the allegations it = 7° “appears that ‘the pleader:is suppressing facts - a1 _ + * -material-te the disposition of the.case, HE = Where the’ allegations in a petition far = © review failed. to include the ratio decidendi of - ‘Dalgos, bupre, note 24 at 29, All cases quoted in this seetion were cited by Balgos in bis Handbook. "2d, elting Sy-Quia, etal v. Marsman, e l., 22 SCRA 927. 23Jd.at 80 eiting Go Occo & Go. v. De la Costa, etal? SCRA 1082. Lega PERSUASIVE LEGAL ANALYSIS the Workmén's Compensation Commission and the petitioner merely attached copy of the questioned decision’ in his pétitiog, the Court * rejected the excusé that enunsel was under time on pressure saying that is “no;justification for the suppression of material and vital facts... In the same case the Court reiterated the 7 doctrine in Canete v. Wisligenius (86 Phil. 428, 432) that “ezhibits or anmexies attached to a - complaint ‘or petition do nat take the place of allegationg of ultimate facts, ‘constituiing the : cause, of action. which ‘the pleader is under +" obligation'to plead-concisély.and specifically as if his pleading had no dnnexes; under pain of peremptory’ dismissal of iS complaint or g information = 7 “ a. When the allegations are not in accordance with, or are violations of, orders of a ecurt. Where. the comment (on a_>etition) required of respondents consists of a “terse and Taconic two-page pleading,” the Court found the-pledding too skimpy and did not address to ‘the pidnfeipal- question raised.z© ec. When the-allegations are intemperate, deroga- toryorialse, 3 fiensive. of ifitemperate language may 5. belexpuinged ffm the records, e pMotim 2658288 6 pay +. A motion ig an application for relief other than by a pleading-"Itis a request made to a judge for én order ~ in favor of the applicant; All motions must bein writing except those made in open’ court, and shall stats: a) the "de Gitng Orbit Trani. Co %, Workmen's Compensation Commission, et a, 58 SORA 78. “ld. me. Rules of Court, Rule 16, 222.