CHAPTER! INTRODUCTION “The language of law must not be foreign tothe ears ‘of howe who are toby ie = Learned Hand, dg and legal philosopher “The lougyr‘s greatest weapon is clarity, and its whetstone = Judge Protiyman Purpose: ‘Be able to define legal writing, it types and categories. Be able to name e-amples within each category. 1. LEGAL WRITING ‘A. Definition — legal writing sed by lawyers, law professors, judges and other workers ip ‘he fled of Jaw to express ogni rights, obligations and, ‘eninions 1B. ‘Types — legai writing may be informative, porruasive or fnetional 1. Informative siting. eonveys information om Smue involving the law er & persons legal rights, "This type of writing ieplvad Examples: memoranda, letiers to cliente and statement of fct in brief are ering writing cosine hase nek i ea up repeal oweeG waRTNG Acampetency Based Apres ailalo legal tol to support his thesis. These may bo pies of evidence offered in court, sections ofthe is ‘inions_of legal authorities on a subledt. Examples: academic Tegal writing, motions, pleadings and argument section of the bret, -Runctional writing is designed fora spaifc use or result inlaw, These are deeds, wills, conizacs 0° ras of Ines. and ordinances which legally bind {hose involved. Some specifi format, ceremony oF legal requirement may be present in this type of ‘writing, This type of writing need not be analytical for persuasive. It is eno ‘complete yot understandable, TI, ‘TWO @ BROAD CATEGORIES OF LEGAL WRITING AL Legal Analysis 1, Predictive Analysis — ‘A predietive document deals with a legal question in 8 ways: 4. Analysis — The facts and fase ate analvzed and studied closely, The fais ane then appli so {athe law (or jurisprudence’, and they are (nterprated according to the meaning of the. law, . b. Prediction — Theonteameaf thelegal question, whether positive or negative, is prelicted ‘¢ Recommendation — The writer, based on the facts and lav, gives his advice or xecommendar tion as to whit a the bast line of wction under ‘thecirmumstances, Examples: opinion memorandum written {or sonior partners and legal opinion letter for dliente, a ‘The opinion may be in favor or against the gation ated bythe cent Proditive documenta belong to tho infor smative tpn of aga writing setmODUCHION 2 Persuasive Analysis — document atbempis i persuae 1 judge, arbiter or any other deciding authority {to decide the case infor of the writers cient, A persuasi ‘Examples: pleadings, motions and briefs. B. Legal Drafting ‘Thi ie the functional typ of legal writing. Hore ‘an_slveady- available template found in Legal Forms ‘handbooks, Among the examples are: ontracts, deeds (eg. of sl or mortgage) wils and testaments fr private persons, and laws, regulations and ordinances which bind the pubic in general ‘Legal drafting requires legal authority. Aseparate subject in the law curriculum, “Legal Forms,” den with legal deafing. HL, DEFINITION OF TERMS A. Memorandura ~jterally "tbe remembered is paper thot explains and summarizes specific pints of law fora judge for another attorney oF fazaient, Pleading — The Grmal_preseniation of claims snd dunace by partes oa lawaull The specific papers by ‘which Gn allegations of partes toa lawsuit ure presented, in proper form; specifically the complaint of a plaintift andthe angueer-of-a_ defendant plus any additional responses to those papers that are authorized by law.* ra aT, ner hig renmtra ASO ed een op fa sce by oe en ‘ek is Beefy amen raceme ad eer = Inst visited November axa, Caan gn the res spy pst mae 2 we ee esiaae thar demas Talented ech a er ‘SOTA tedhc he td bar cence entree en sake a hy tnd re ray. Pa i a Ses iat shoe ery oar pore me ‘Suited neta tito po pen mec‘compen Based Aprach ‘Motion — A.written or oral application made to. court scjudge tobiaina tubing oronder directing thatsomeacd bbedone infivoroftheapoliant The applicant is known ‘as tho moving party, or the movant, Example ‘A motion to diamies aska the court to dismiss an action becauss the initial pleading, or complaint, fails to Sto a cause of action oF claim fr which Une law provides aremedy. a ‘A motion for summary judgment, also known as 1 motion for judgment on the pleadings, asks the court to make a judgment solely on tho acts sot rth in the pleadings, without the sscessity of tral. A court. vill grant @ summary judgment ation when the material facts of the ease are notin dispute and all that remains to be determined are question. of law. Brief — A written docw-rent.drawaphy-anatiorney for ‘party ina lawatisor by appearing pro se that concsaly Stes the followings 1. fasues of lawauits %2 fet that bring the parties to court 2 relevant laws that ‘can alfec the subject of the dispute; and 4. arguments that explain how the law applies to the particular facts so that the case will be decided in the party's favor Appellate Brief — A writing that.mustbe fled with an ‘qnpllate court. »o-that the court may evaluate whether ‘We dcieion of the lower court should be reversed because sf-eome error or impropriety-that occurred during the {sia A statement of the issues presented for review, a summary of how pertinent laws affect the fact, and a statement of the relief being request aro essential rmonts of an appellate brie. The appolle’s brief will INTRODUCTION argue thatthe lower court acted properly in its judgment fand request ‘te alirmance, while the appellants brit ‘ill atempt to convince the court to reverse or vacate the Tower cour’ judgment bocause it acted improperly.”CHAPTER II SIMPLICITY “Plain language i, or should be, vers bit as aerate and precise 1a traditional legal writing. Is elearer ~ considerably clearer. Tt fs umally shorter and jantr. 1 strongly preferred by readers. I ‘vould greatly improve the image of lawyers." — Professor Joseph Kimble, Answering the Critica of Plain Language "You are na iss a lawyer for being understandable.” ~ Christopher T. Late Purpose: Be able to write simply. The student is expected to: a) use short sentences, asa rule; b) avoid wordy expressions, dliches and ‘tautology; © avoid elaborating on the obvions: + yet to the point soonest ©) minimize the use of connectives and relative pronouns; 1 avoid canvalvted word-constrictions and g) replace mltnylaLe terms with shorter, more understandable words. 1. ELEMENTS OF LECAL WRITING ‘The elements of lgal writing are: ) simplicity; b) larity, and e) persuasivencss A. Simplicity Simplicity in writing means to write simply. To observe the rules on “economy of expression.” ach sentence must say what the writar means and means what the writer wants to aay. Convoluted words and ‘word constructions muct be avoided. This is best done by preferring shorter sentences, and choosing shorter words. Repetition must aloo be avoided as much as posible, cuarnen 1 ‘snarucry According to William Zinsser in his tips om waiting well, clutter is a disease in writing The socret of fod writing it to atrip every Sentance to its cleanest Component. Every word that serves no function, every long word that could be a short word, every adverb which carries the same meaning that is already in the verb, ‘weakens the sentence. We are a society strangling in Unnecessary words, circular conslzictons, pompous fils fand meaningless jargon. ‘Who ean understand dhe viscous language of every ay American commeres and enterpriv: tie businoos let ur, the introfice memo, the corporation report, the no- tic: from the bank explaining itslat.st “simplified” state- ‘ment? What member ot an insurance or medical pian ean ‘cipher the brochure that tll him whet his cots and Tenefits cae? What father ot mother can put together a child's toy on Chelatmas Eve or any othor eve — from the intrurtaans on the box? Our national tendancy isto ins fiate and thereby sound important. The arlne pilot who wakes us to announce that he is presently anticipating fxperiencing considerable weather wouldn't dream of ‘tying that there's storm ahead and it may get bumpy. "The sentence is tao simple — there must be something wrong with iL? 1B, Useshort sentences Lawyers gonerally write in long sentences. A com- plain, 899, fr teplevin' may eontain paragraphs consist- {ng of iy one sentence. For example: “Phe hersin plaintiff is willing and ready fo give « bond pursuant tothe Rules of Court ‘executed in favor ofthe defendant in the instant face in an amount double the valuation ofthe “bject personal property above described, and forthe “turn ofthe same property if the return wer W180, On Writing Het An Irma Gude Wing Nonftion,. cal were cope Based proach thereof be adjudg-, and for the poyment to the same defendant of such amount as he may ‘recover from the plaintiff inthe herein action.” ‘The sentenne ahove contain 76 wordsin no ess then 7 separete thoughts, Whereas a good sentence typically ‘contains only one main thought in less than 25 words. By “(ypually” means that a sentonce may have more than ‘one thought It is howev-r preferable to express only one fr at most two thoughts in a statement. Long sentences make one's writing unwieldy and ‘feult 9 understand. They tax the reader's concentra tion and memory. He will have a hard time figuring our ‘what the writer wants to say ashe wades through thick: {is of main and subordinsts clauses. Our sample state- ‘ment may be rewrite: “The plaintiff is willing to give « bond double the value ofthe property. He likewise un- ‘eras to return the prenerty to the defendant frpay him suck amount if adjudged to do 0." While short sentences are recommended, one may cceasionally use longer ones for variety Mark Twain ‘ndviced veriters to stick to short sentences, However, he sud = *At reas (the writer) may indulge himself swith alors one, but he will make sure there are ho folds in it, no vagueness, no parenthetical Interruptions of ite view as a whole; when he ‘han done with tit won't be @sea-serpent with Tlf of tis arches under the water; i will be a toroh-ight procession.™ ©. Omit needless words ‘Simplicity and economy are good qualities to have in logal writing, One must therefore omit unnecessary ronda. Ragan rer ern De Compt Plain Words, 10057 8 US, ely ny Gs sl Hast Wt 0) by Wi sre curren . RULES 1. Avold wordy expressions ‘Simpler construction is prefered than using too many words to express an iden. Wordy: Thecars were bought for the purpose of starting taxi business. : Concise: ‘The ears were bought to start a taxi business Word; "The brothers succeeded in baking two huge ice-cream cakes. Concise: ‘The brothers baked two huge icecream cakes. Ward answered inthe aimee [si atl ies at the intrsoction of isaemarina in he abeenen inthe anos of inthe event Tin |i the emt hat in the meantine in the near future in the neighborhood of inthis place in view of th fact that sinc, beens [large number of [many of most [taking into consideration the |sinoo fact that there -an be no doubt that [doubtless with the exception of except with reference to! with rogard [about» ‘boat waornsc Acompetne Based ADprwch 2, Avoid elaborating on the obvious ‘This means do not expand or restate the obvious It ores the reader with information he already has. Wordy: Annie Bantug’s two sons, Kenneth and Julio play judo ‘Conese: Annie Bantugs sons, Kevin and Julio pay judo. Wordy: Neodless to say, you sre your mather’s favorite, It goes without saying, you are your mothers favorite, Concise: You are your mathers favorite, ‘Wordy: A baby girl was born to Sps. Reyes. Concise: A girl was born to Spe. Reyes. 3. Gotto the point ‘Omit unnecessary preliminaries, Wordy: Weare very proud and happy to announce that our office won tho golf championship thie year. ‘Concise: Our office won this years go chamnionsbip. Wordy: There is no doubt that some people will disagree pinion, | f=mly believe that ore rum ne board members of Concise: I believe that teschers should not run anymore as PTA, board members, 4. Avoid tautology ‘This means doing away with unnecessary repetition ofan idea {in ifforent words, Words: Concise: Wordly: Concise: ‘The guests stood up during the flag ceremony. "The guests stood during the flag ceremony. Prease vice out your opinion Please vee your opinion. ca ‘cusp ” ‘Soeruicny Wort Concise factually happened sppened_ iadvance pl nny and all by gil was born [before in tho past [cheap in price [eombined together feonnet vp, end up, finish up, [discussed ina talk [during the course of leveh and e fequally as ery oncein awhile fatal death final destination |frstand foremost |frst_______| {or the purpose of ae zi in color Ihopeful optimism: footimiam [huge throng throng, and when i jin my opinion Think I think linen of inside invited guest est. flonglensth of time ong time |meet up with et. modern colleges oftoday modern college [numerous in number [numerous = [one and on} fone (or only) lone and the same [ave (or the same) [past history Inistory rarely ever [rare [mauirementa needed or [equines lund in shape id [sesave back and forth sees “ian 1 it, Maer ah ation ening: D.C HEATH & 0.‘The compromise agreement of April 2, 2005 should be enforced. ei unyers arty Pees om marae ai weg Serene escape ques = = eee aes ee ee eee mie ero, aoe ee eae “= _ fen aa a fears as ag ar ee eee eet os coer Sgt See ee ee eS eee ee a cea as Wordy: There were eight members of the faculty who attended the fact that you have not_succeeded | your failure Laas ae eee = ae sre eet eee ae eee ere Wee eae ween ae peer) Concise: This topie interests me. Phe Wordy: ‘The memorandum whieh I sent to you last week explained Wordy: the leader of the unit ee ee es Soe Seed er alpe ee eae Sa ec eee ee ee ao ee elt eee ee he ee aoe y averted toa word or be eliminated eee ee stoatng inmmarbecnete tnwontrt tin ee oper Wordy: ‘The question as to whether you or your husband should et Poe ee a ee eee Ps eo ae oe eS ec YE ese eee PETS See ate meees Cuaidon “Cynthia A Barnos,A Manager's Guide: Modet Memos (New York: MIF Books,te eee 5 jcmeet. [what fof what hat i im i fanaa = ea eae ee it has come to my attention |'ve noticed (or omit * me ee Bane opabane yaeienien — eee ae ate eae le fonts eee : ni Seperate parity on - Soe ee ae ent = ee acre aes See So eres ene Es pant east Rees Se a cae a ene el ie 4 se: Mere nada Ban ul sce g eM ety jno doubt, doubtless insurance coverage and updated realty tax payments. Se eee ee er emp ees ae eee eee ‘using connectives and = ‘conjunctions such as “end” and “but™ which Join clauses of eq Fank; orb) subordinate conjunctions such ac“ns," "because, “if “Ghat” “though” which eannect to the principal clause tninor rank. Relative pronouns oF “relatives” relate to an antecedent find incroduoas qualifying elause,eg, met my cousins who taught Fossosive ‘Objective whee [shor lot which [whieh iar carinatingseonpnetion a or ar fr yea connectives may be reest in simple sentences. The result preserves the orginal tkought‘low of the writer without taxing the reader togo through great lengths. If anything, clarity and conciseness is achieved Iti alao possible to jo'n two clauses witha semi-lon instead ofa connective.CHAPTER Ill CLARITY “There is nothing as mysterious as something clearly seen.” = Robert Prost “The pric of larity, ofcourse ia thatthe clearer the document ‘the more obvious its substantive deficiencies. For the lazy ‘or ll, tis pee may be foo high.” — Reed Dickerton, Profesor of Lave, Indiana University Puree Students are expected ta: a) use concrete instead of abstract terms, ) when abetract terms could not be avoided, to back them up ‘vith ilustrative examples; c) avoid wide gaps between subject verb Sd abject; d) avoid nected mailers; o) avoid dangling modifiers, # avoid ambiguous pronoun reference; g) avoid punetwations which ‘cause ambiguity; b) apply the seven rales of clear writing CLARITY Clarity in veriting results when the writer is able to express exacily (and tinambiguously) what he wants to be Zelleced on his work. The last thing a writer would want isto confuse his readers. On one love, clear writing involves clarity sfexpression and sentence structure. On another, deeper level Clarity refers iy clearness of one’s loge and arguments Clear expression happens when what one thinks is reflected on that which one has written. To check i this hat ‘meaning. Generally, what ie unclear forthe writor i ikevise Uunelar forthe reader ——— CARTY ‘Acardinal prinsiplc lear writing isto be concrete. This ‘will prevent ambiguity and room for misinterpretation. “Many Filipinos are_in favor of contraceptives” is abstract when compared to “a 2007 research conducted by the University of Eastern Visay2e shows that 75% of Filipinos above 21 are {in favor of using condoms.” When one eannot help using an abetractstatament, this must be followed by conerte examples USE FAMILIAR AND CONCRETE WORDS Aristotle said that: “Style io be pond must be elear..that speech which fils to convey a plain meaning will fail odo just Uhat speech has to do...Clearnese ce secured by using words {noune and verbs ale) that are current anc ondinary.” Plain meaning is a by product of the use of defnite and ‘conere'e language. This makes for vivid writing, oce which ean bbe eaily grasped aa itis "picturesque" Preference fr abutract ‘words mah One's prose indefinite and vague Bxample: Abstract ‘She sustained bereavement of her paternal relative. Concrete Her father ded Abstract Her counset failed to come because of the onset of {inclement weather. Concrete Her counsel could not come due tothe storm. Abstract ‘You need agricultural implements todo the ob of planting trees, Concrete ‘You need a spade to plant trees THRETOTE, matronAcompeleney Baal Aprteh ‘The use of nighfalutin words is often an attempt to cover {or one's inability tobe definite or specific. For instance ‘birds of ‘the same feather flock together” can become “eletial denizens ‘of identical plumage congregate in their own proximity” ‘The graphic desription in Exodus 8:7 of Moses inflicting 1 plague on Baypt which orginally reads: “He ited up the rod and smote the waters ofthe river..and all ‘he water that were inthe river were turned to blood. ind the fh that were in the river ied; and he river stank, and the Egyptians could hot drink the water of ska river: and there was blood ‘roughout the land of Baye.” Ta the hands of sentimental and florid. writers become: “The water wos impacted by his rod, whereup ‘on a polluting effect was achieved, The consequent taxifigation retuces the conditions necessary for the sustenance of the indigenous population of eqratic tertebrates below the level of etailty. Olfatory dis ‘comfort stondards were eubstantially exceeded, and ‘potability declined. Social, economic and political disorientation were experienced fan unprecedente? degree” ‘Thus, why ea: “member ofthe feline family” when one is ony talking about c "ca," or say he “rendered a negative response on he subject of my solicitations when Uthat one means is he denied my request.” AVOID WIDE GAPS BETWEEN SUBJECT, VERB ANI oBsECT A. Gaps may ‘A sentence normally consists of a subject and a verb, with the abject (if any) following the verb, eg., The lawyer shouted af the witness If these three are placed in THe mpm, nae 6. ‘and verb of betwoen the verb and its objeet makes for tedious writing. ‘With gap botween subject and ver “The plaintif, disgusted at how long it took for the court to decide sash avimple eectnent caso, filed a motion for early resalion” Improved: “The plaintiff filed a motion for early reslution, Hie was disgusted at the court's delay in resolving Ins simple ejoctment ens." 1B. Modifying the modifiors Particulecly avoid “nested modifirs” which modify the modifiers Whon this happens take away the nest" of ‘modifiers and make a separate sentence. ‘With Nested Modite: ‘Antonioto Doro, who was defendant’ une, and smong thoco defrauded Sy him, filed before ‘te court close for Christmas vacation a Motion to Improved: “Defendants rele, Antonicto Doro, fled a Motion io fatecsane before the sourt closed or Christmas vacation. He was among those Gefrauded. by defendant” Poor: “Mara, who at that time wns carrying bundle of nevwly-rinsed cloths some of which belong to plaintiffs son, while trying to escape through the back gat, was caught by the plaintif there.” Improved: “Maria was caught by the plain atthe back ‘gato as the tried to eecspe. She curred « bundlecas ers A corpeteney Beed Approach of newly-rinsed clothes, some of which belonged to plaints son (passive) “The plaintiff eayght Maria at the back gate as she tried to escape. She carried a bundle of newly- inged clothes, sume of which belanged to plaintiffs son." (active) IV. AVOID MISPLACED OR DANGLING MODIFIERS word oF phrase that doseribes 2 gives ‘more detail about a concept. A dangling modifier attempts fo clarify a word not clearly stated in the sentence. As a rule, the writer ht falr amount of freedom where place his modifier ina sentence, e, He edited the letter quickly, He quickly edited the ltter Quickly, he edited the lett: In the above examples, the thought ofthe sentence ‘anains, When a modiSer i misplaced, the meaning ‘hengee ines the moder appears to describe the wrong thing: For exampue: New Dalakit Municipal Blementory School (hich is “nem” “Dalakit” or the “Flomentery Senooi?”) ‘Our policy is to give our buyers the lowest possible prices and workmanship. (Surely the shor ‘mer means to give our buyers workmanship at lowest posible priews”) “Mental Health Prevention Center" (sign in 4 hospital clearly containing a misplaced modifier. ‘What i means is probably “Mental Health Disease Prevention Conter.") “Ribbosveutting ceremony” Better: “Cutting of ‘the Ribbon Goremoay," as it is the ribbon being ent, ‘ot the nibhon that does the eutting) B. Rules in revising dangling modifiers 1 Place sngle-word modifiors near the word or phrases that they modify, eepecally ifthe modifier tends to deserbe the wrong word Poor: He almost ate all the desserts inthe party. (here the subject has not yet eaten.) Better: He ate almost all the desserts in the party Poor: ‘The judge could understand the Hocano spoken ‘by the witnesses easily. (Query: Did the judge understand “easily” or did the witnesses spoke “easily”) Better: ‘The judge coul easily understand the Mecano ‘spoken by the witnesses. Likewise, place the modifying phrase or clause losest to the word it modifies. Misplacing these modifiers next to the wrong word often seelonslly ‘hanges the meaning of the seutonee. For exemple: Poor: T heard that my wife intesded to throw surprise birthday party for me while I was outside her office window. Betton While I seas outside her office window, Theard that my wife intended t throw a surprise birthday party for me Poor: “Thre television sete were repurted stolen by ‘he Dalahit City police yesterday”wa ware Acompeten Bae Botter “The Dalahit City police reported that three teleiaion sete were stolen yesterday.” ‘The wrong placement of modifiers can have absurd results. For example Poor: “Calf born to farmer with two heads” Better: “Calf with two heads born to farmer” Poor: “Palting a thousand feet from the cliff, we finally sow Pagsanjan Falls.” etter: We finally saw Pegeanjan Falls falling a thousand feet from the cliff” 3. By categorically naming the doer, dangling ‘modifier ean be elieninated. For example: Poor: Having finished washing the dishes, the door tons lose Since the doer of the action erpressed in the participle “having finished? was net Gieuly stated, {he pertcipial phrase becar-e a dangling medifiee. ‘The modifier modified nothing since obviously it was fot the “door” that finished washing tho dishes. Better: “Having finished washing the dishes, Martha clased the door \V. AVOID THE AMBIGUOUS PRONOUN REFERENCE A. Concept Carsloss uso of pronouns ean result in ambiguity probleme, This occurs when the writer allows multiple curren os cua antecodenta as possible references to single pronoun. Pronouns, when not placed properly, can point to i= wrong, noun thereby. changing the meaning of the Mintence, eg, Your skis wil surely benefit your friends Sobe aure to use them.” The antecedent of them” may be “kills or frends,” making the sente.ce ambiguous How to avold ambiguous pronoun reference 1. ‘To avoid confusion, one must rephrase the sentence to dearly identify the antecedent. For example ocr: Robert father wil se hiscar forthe pine. Ia ot clearly stated here if whose car “ll be used) Better: Roberts father will use Roberts ear for the picnic. (i refering > Robert, ot) Robert father will use the latter's ar forthe pieni. (refering tothe father) 2 Deinonstrative pronouns such a this, that, these, {hee them should only be used when the antecedent is definitly established, For example Poor: Repressed jeclousy and hatred among brothers and sisters is counterprouctve. You must get rid of. them. (se them’ refs to jealousy and hatred or to the siblings? Better: Repressed jeuoury and ‘utred among siblings ia counterproduetive You must get rid of these feelings. ‘Sometimes the use of demonstrative proaouns in inherently ambiguous because the antecedent is not given but assumed,Py Loa wars compen Based Approach For example: Poor: That és what Ihave boon waiting to hear from you, (What does that refer to?) Better: ‘That pnrace “love thy neighbor” ie what I have doom wailing to hear from 20 VL PUNCTUATIONS MUST AVOID, NOT CAUSE AM3I- curry Punctuotions are mar in writen communication used two help the reader better understand the matecial. One such tive isto lisinate ambiguity, Rekloss use of punctuation ean Inave sbeurd rorulte ‘The coral comma’ which is used before the enjunetion land of or in list of three of move items, is a casein point. ‘Without the serial comme, the Governor and the President become eo-teschers the author in this statement: “The rer ‘gratefully acknot ledges the invaluable help of his co-teachers in th State University, the Honorable Governor and the President ofthe Republic ofthe Philippines.” Wore, the santones implies that the Philippine president 28 provincial governor at the seme time. The ambiguity can be cured by putting a serial fovnma after “governor,” et, "the Honorable Governor, and the President ofthe Republi of the Phifppines.” ‘The following sentence in embiguoue- “I cook banana, carrot, ube and chocolate cokes." The reader would not know it three or four eakes are being talked about. Putting a comma ter “ube,” indieates thatthe “ub,” and “chocolate” cakes are Separate (On the other hand, reckless use ofthe serial comma also results in ambiguity, ef, "The writer gratefully acknowledges the insaluabl> help of his mother, the Honorable Provincial Governor Elsie Explera, and the Presiden ofthe Republic of the Philippines” Here, the author unwittingiy made t appear that ‘the lady Governor is his mother when such isnot the case. ald the “fr comma” “Harvard comma termina! spurte paps ii is lew cunprenit = ‘To avoid both cass fom occurring, the sentence has tobe rephrased to avoid listing the items in an ambiguous manner. Por example, after “mother,” put the conjunction “as well a” es hitmother aswell asthe Honorable Provincial Governor Elsie Boplora..” ‘VIL, RULES IN CLEAR WRITING A. Be clear on your point Good legal writing, a8 in all good communication fr ‘that matter, requires that dhe author must have a point, land is clear about it, Writers who aro not sure what they trant to sayeannot be understood. Their werk appears to Tamble, withthe reader not knowing where he or she is honded “There oro three ways to know when one is unsure of his or her point a) hy over-descrbing the background to ‘what one wants to sab) by being unsure whether one {s for or against a certain topic; and e) having too many points within one work. 1B. Make sure sour point is communicated at once ‘As important as having a pont, isto go direct to the point in one's paper. There is 80 use heving a log introduction and then stating one's point near the end. By thistim: the reader i either tired or puzzled not knowing, ‘where the material is headed. C. Have a structure. This is wivere you put your data, ‘analysis and argument "The inieodetion, for example, must alrendy contain sssummary or abstract of your work. The background must tly be short overview of Uh problem or legal conecpts to be discussed, Extending an explanation ofthe background tll ire the reader, and will give an impresion thatthe ackground is already the main concept discussed by the paper. The facts of particular ease under study mast ‘nly cite relevant detail. Putting in more will make the eating tedious, The analysis will disess the writer's farguments, Here, Uhe writer will cite facts, proof and {vidence supjsrting his position He may leo cite countor- ‘roofs against his postion, and discuss bow these would10a. wan competne Ba Approach {all short of the writer's arguments I'he analysis covers ‘many areas that may be broken into sub-parts, and each the paper must ond with a nals ‘This cannot be overemphasized. Nomobservance ‘of the rules on grammar subjects the writer to a whole Tot of aecuentions: from being slopyy and le=y to being tunedueated, and worte, someone who writes non- sensical’y ‘Grammatical rules shall be treated in a separate chapter, Be previse Know the exact meaning ofthe term, Ifthe term is scientific or lagal and has technical meaning, know both {ts ordinary and technical meaning. Never use a term ‘because it “sounds” right, particularly when you are not ‘sure ofits definition, To be sure eonsut the dictionary. Also, avai legalese. A separate chapter is devoted to legalese Be Consistent ‘Are my tenses consistently present, or consistently inthe past? From whose mint of view am T coming from? Who are my istented readers? Be logical and elear in your argument ‘As a writer, one must be clear beforehand whether one is describing or arguing. I: the paper argues on Something, it i must be made clear beforehand. ‘The thesis statement must be stated from the very beginning ta puide the readers what the writer is arguing for oF ‘against. Unless the writer ie elear with what he oF she intends todo, the paper wil nt be clear t the readers, ales on argumentation (and “persuasiveness") on paper willbe diseussed separately. CHAPTER IV PERSUASIVENESS “Tfyou wish to win a man over to your ideas, frst make ‘him your friend.” ~ Abrahem Lincoln Purpose: ‘Tobe able to write persuasively by using any ofthe four modes ‘of legal reasoning” a) re-based reasoring; b) ancogieel (and the founteranalagieal reasoning) ©) poiey-tnsed reasoning; and d) she narrative restoning 1 PERSUASION ‘Persuasion is process where people are guided towards the adoption of an idea or course of action. In legal writing fn peesuasive document attempts to influence the deciding suthority to favorably decide the casein favor of ones client. ‘The deciding authority i wevally the judge. However, he may also be the arbiter Gin sn arbitration disput), comrisioner, Fearing officer, mediator or che other party tothe dispte ‘MODES OF LEGAL REASONING Reasoning is the process of drawing conclusions trom, facts or evidence. To reach the desired conclusion, arguments sand proofs may be used, ‘There are four modes of legal reasoning: rule-based reasoning; bl analogical (andthe eounter-enalogical reasoning "poly hese! reasoning, and d) the narrative reasoning. A. Rule-based reasoning nrule-based reasoning, the conclusion is reached by ‘anolyzing and applying the law, rule or legel principlePy cal wars competency Bue Appr Example ‘The law says: a contract is annullable where one of the parties is incapable of giving consent to a contract! ‘Albert yes soventeen when he signed the contract. ‘Therefore, Albert should not be bound by the contract boeause he signed it whon he was a minor. B. Analogical (and, by extension, the “counter-analo- ‘Fleal”) reasoning ‘There are throe possi types of analogical argu- rent: 1. Arguing from precedent. This typeof analogical argument happens. when the concusion is reached by showing inlarities betwee the cave decided by the Supreme ‘Court and the ease ofthe client. This is usually achieved Ipyinvoking the doctvine of sare decisis” "The lawyer reasons by showing that there is dirvet factual similarity between Use caso decided upon by the high court and his client’ esse. If the Supreme Court fecided the ease this way, then tho eliont’s case mus be ‘Seeded thia way du to the similarities of facts. To put eanversely, my client's cate shouldbe decided in "his manner" because afterall, the Supreme Court in cas of Similar facts also decided ints manner.” Exampl In the ease in question, Mario was sixteen when be signed the contract in 2009, However he lied bout hi age by misrepreventing himself to be 20, In a case of similar facts, Mercado v. Espiritu? the Supreme Court declared tthe deed of sale valid, and eanot be annulled inspite the GR OODE, Ar. 1900 saan: long ent are wale oa labia, ea ugh thre ay hve been no age erro tion) ‘Flutie ne of the pron cape of ging emo # ena A TBO dering ante pve coment toa cont) Uneancy ted ior Sloe deen pita mower” Sandy tho eco an ar To sia sie lr ee cine a when rt a ce a erupt ape ss Rare em ct oe tl tae owormmen lane, 40. Sam, curren = ‘PERSUASIVENESS fact that two of the four parties were minors, The reason {their misrepresentation about thelr age amounted to ‘ctoppel They cannot be made to benefit from their bad faith. 2. Argument ofeamelegl application. Analogical reasoning ‘nny aloo be used to sbow similarities that if Une law ‘plies one area, itmay be understood to apply to other ‘Thnlar areas. In @cace that attompls to impose damages tn the seller of immovable or real property for failing to Aisclose « major defect ofthe property, the lawyer mit ‘argue that the law has imposed such duty an sellers of ‘potvonal property a8 well He might argue that rule for ‘eal and personal properties are the same a. Mutatia Mutandie ‘Mautatis mutandis is en example of argument sing the same logal application. This happens when tne compares mukiple situations having multiple Veriables where some variables remain constant, While others are allowed tobe changed. For example, the injunction in the ten commandments "Thou shalt fot covet thy neighbor's wif will apply mutatis mutandis to"thy neighbe:s husband” as wel Article 111 of The Law ofthe Sea” states: “The right of ot puisuit shall apply mutatis mutandis’ {o violations in the exclusive economic zone oF fon the continental chef, inemding safety zones ‘round continental shel! installations, of the laws find regulatinn= af the coastai State applicable in feordance with this Convention to the exclusive ‘comomie zone-or-the continental shelf, including ‘such safety zones.” 8. Argument using common sense anclocy. Analogical ‘arguments may be used by staring with something that everyone accepts, “Fay rl of eqiy which eer dino sepeestation condi a te peen ming an revels en Gig ae a SIONEEaRNa per vin led ren Spent, 200.675. arte nce chang bon ad ‘SSEP Contin in Foals ne Lew oe Se) ARTICLE 1 Seton 2A comprtener-Based Approach ‘Bxample: ‘A person might argue that death penalty must be restored because the body of society is just hike the body of ‘t person. Ifa man has severe tooth ache, the logical way {sto extract the tooth, A heinous riminal i just like the ad tooth. b Counter analogical reasoning Cociter-analogical reasoning is tho opposite of analogical reason. While the later concludes by pointing out the similarities, counter-analogical reasoning concludes by pointing out. relevant ‘differences between the case and the client's facts. CCounteranalogial reasoning is usually use’ to ebunk or destzey the other partys prior use of ‘analogies by stating thatthe ease cited ‘tnd the client’ situation are actually different, th 23 fo common conchision ean be inferred from bots situations. Example ‘The opponent might vse counteranalogical reasoning by saying that in Ube Mercado v. Expirite Cave, the minor's representation misled the other party for afterall, the minors had passed the age Of puberty and truly Jeoked like adults. While in the other case, even if Mario, the see, lied abpat bis age, there is r> wav the buyer could be misled Dpeauve tne aro Is a baby faced sixton year old "That the seller has not passed the age of puberty, ‘and neither does he look ike an adult. Thus, there fare no factual similarities in both cases. In the tooth-extraction ease as an analogy why death sentence should be imposed, the opposing party who is against death penalty mgt reason {sing counter analogy by saying satiricelly that if “ny tach aches, I may have it pulled, such that if ‘my head aches, { may havo it ext” This is another ‘way of teling Uat Usere are not enough similarities teen toot extrction and death penalty to curren a PRSUASIVIONSS Poliey-based reasoning Polic-based reasoning reaches conclusion by connecting the fats of the case to the state's exiting policy, Les what would be “best” for the eocicty at large Publi policy ic "recognised or established hy the State fn determining what acta are unlawful a3 [they arel ‘deemed injurious tothe public or contrary tothe public food Thus, un agreement is agaist publi palicy i it feSnjurious tothe interacts of the publie, contravenes fame established interest of society, violates some public tates, againet good mora, tends to interfere withthe Dbl: welfare or enfoty, op iit is atwar with the interests ‘society anv isin cone withthe morals ofthe time.” Bxample: ‘Mario should not be bound by the contract. Young peop!s whose minds and morala are not yet fully formed. ould not suffer from the harmful eansequences of those Seta which they themselves could not fully consent to. He ‘not yet mature enough to consider the fll eonsequences ‘this decisions He deservesto be protected, not punished. Narrative reasoning Narrative reasoning the conclusion by telling @ story thas shows the coatet, description and perspective ‘had appeals to commonly-held ideas of justice, merey or fairness. xample: [Narrative where there is possibilty of undue iniuence: Mario should not be Bound by the controct the signed becouse Joey, the car-dealer for 25 Soares prcewred Marin, discouraged him from Zalling his parents ask for advice and telling him that another buye> was looking atthe ear tt that very moment. Joy lowered his voice, (ids "Pl fll you wohat Tit do" “PU give you 0 Beaman Oty Dan, 17 HER Jane 11857 ‘Soniakoy Comin, 9672.a _LeoaL warTne A competeney Bos Apa ‘onus of P5,000 on tp of your selling price, if you will allow me to facilitate the sale of your ‘arto the buyer. This Bonus i a secret betseen Tin da dean wads, Lean Wr Proce, Antes Or ston, hap a ond Ben, 10, CHAPTER V FALLACY “A person should refrin from at those things tha take him towards fallacy, misery, ignorance and degradation.” = Atharva Veda quote Purposes: "To recognise the diferent classe of formal and informal fallacies. To avoid using fallacies in ones documents and pleading. 1. CONCEPT Fallacy is sm error in reasoning. A lawyer spends a lot of time arguing and reaconig for his client. Ths, iis vital that the knows the priseiplnofsound reasoning toavod fallacies. He must alo be able %o spot fallacy in others. Errors in reasoning ‘Keeps us from striving atthe truth. One's thinking is slanted find displaced, Worse, he would not know it. Tt takes skill to ‘wade Ghrough layers of arguments and pinpoint fallacies. A” {analytical mind is one of trut's allies, and falsehood’ fos. 1 MAINTYPES Fallacy may be: A. Formal fallacy it an invalid argument, an erroneous Inference. Tes an error in eduetive reasoning where the ‘onclusion doesnot necessarily fllow from the premises. B. Informal fallacy c= inductive fallary ‘8 am error in reasoning ina form which doesnot fllow the traditional formal sructures of logic.Acompetncy Buse App IIL, DEDUCTION Deduction ia to reason from general principles (or truth) tw partiular instances of that truth Example All cata are mortal (angjor premise) Srila ina eat, (minor premite) ‘Therefore, Smila is mortal, (conclusion) Fora deductive argument tobe valid, it mustbe absolutely established that bath major and minor promise are true. Ifthe premises are true, the conchuson is valid. If Smilla isa eat, then it is mortal, Dut i Srila io not eat, but a call phone ‘rand (making the statement “Smila is a cat” fale), the. the ‘onelusion is invalid ‘all members of the gor participated in the mauling” 1and*Pinoisa member of tse gang," are true, then the conelusion “Pino is gulty of maniing” is true. IV. DEDUCTIVE FALLACY ‘Otherwise called “formal” or “logical” fallacy, deductive fallacy presents an error in deductive reasoning, in that the ‘onclision arived at is logically lawed or absurd. There are ‘several typae of deductive fallacy. The three main types are Giscusted below: the fallacy ofthe ile major, the fallacy of the ili minor and the fallacy of tse undistributed middle. A. Fallacy of the licit major ‘This fallacy happers when the majr term (predicate of he major premise) i particular” (or nc: distributed") in the major term, but is “universal” istributed") in the conclusion, A simple way to understand this fallacy is: Some students of what schoo! deink alebol; therefore, all. studenta in that school drink alcohol some students" is particular in the premige but universal in the conclusion). ‘This is fallacious becavse no universal conchusion can be inferred from a particslar premise. Otherwise, one Decomes guilty of hasty generalization. curren v ® FALLACY Bxamples Al Bicolanos are Filipinos, (rue. Here, “Bieolanos” is ‘universal bat “Filipinos” are particular. The reason is while “all” Biolanos are Filipinos ‘nly some Filipinos are Biolanos. Thus “Filipino,” which ta the “major term” ie used in a “partcslar’, moc) Beslanos are rot Cebuanos. (true. Both “Bicelang” and Cebuano” are univertls. This premise may be restated a ‘No Bicolana is Cebuano, No Cebuano is Bieolano”) ‘Therefore, Cebuanos are not Filipinos (The conclusion is false, The reason isthe Fallacy of the Met Majer, which made the major tarm (which war “particular” in the major promise, et, Filipina) a “universal” in the conclusion *NotFilipinoe” are universal beeause it may be restated as "No Gebuano is Filipino” or ‘or conversely: No Filipino is Cebuano.” The ‘nelusion making the major term universal (eg. Filipino) ie fallacious ‘All Catholics are Christians Catholics are not Protestants. ‘Therefore, Protestants are not Christians. (Th fallacy i ‘elfexplanatory, since Protetants ar lik wise Christians: "Cesiatians” ia particular (undistributed) in the major premise but tuniversa! (distributed) in the. conclusion ‘Tous the fallacy) ‘UP law students are excllent students. ‘San Beda students are not UP students ‘Therefore, San Bada students are not exollnt students (Obviously fallacy. Many times, San Beda students had exealle.) Fallacy of the Mlicit Minor allay of illicit minor happens when the minor term (the predicate in the minor premise) is particularACompetney Bae Approach (or undistributed) in the minor premise but becomes ‘universal (or distributed) in the eandusion. ‘The basis (minor term) being particular, cannot sustain a universal cmnelusion, hence the fallacy. Examples: A Lawyers are bar passers. Al lawyers are professionals. (Here, “professional” the ‘minor term is parteular or distributed ‘Therefor, all professionals are bar passer, (In the con= clusion, “professional” is universal ‘A niversal conclusion was arrived at from a particular ‘premise. Thisis a fallacy since not al profes- sionals are bar passers) ‘The fallacy is more egregious in the following: All criminals deserve t be punished. ‘All eriminals deserve another chance, ‘Therefore, al of those deserving another chance, deserve tobe punished. Fallacy of the undistributed middle Fallacy of the undisiributed middle occurs wise the ridalo torm (the term that appears in both major and ‘minor promise) remeins paricclar (undistebuted) in both premices Becmplos Allcriminals have tattoos, Jonlino has a tattoo, ‘Therefore, Jonlino ie a criminal. (This is fallacy since ‘ot all persons with tattoos are eriminal ‘Tattoo in both major and minor premise is particular, thus iteannot be univerealized in the conclusion that just because Joalino has tattoo he is necessarily a criminal) ‘Allcommunits are atheists, cuarneny ” FALLACY ‘Lsino ia an atheist. ‘Trerafore, Lusino is communist. INFORMAL FALLACY formal fallacy i an error in reasoning occurring within non-traditional forms of inference. Informal fallacies are also Known as semiformal, quasi formal or inductive fallacies. |. TYPES OF INFORMAL F/LLACY ‘The following i 1. Ad Hominem — from Latin “argument fo the man,” fan argument releting @ person's views by aacking or Abusing his personality, character, mative, intentions, ‘oaliieativns te, es oprcod to providing evidence why the views are incorrect list of common intra: fllacies: example: What. Lolin testified in court should not be believed. ARer all he ina known communist sympathize. “The form followed by argumentum ad hominem is vosually: Mr. A makes a claim or assertion. (Mr. Batiacks onthe person of Mi A. "Therefore, Mr A's elaim or aaserton ie ils. ‘This is flacious because the person may (oF may not) have a boaring on Use truth of is assertions. The truth of Mr. A's assertion should be subjected to tests ‘other than a mere attack on the personality character or ‘motivation of Mr. A, the claimant. 2 Ad Hominem Tv Quogue — from Latin “yo too” argues that a person's claim is flse because itis inconsistent ‘vith what that persons earlier statement or action. Bxample: Antonina teaches the message of love and peace. ‘Yot sho does not practice it. [have seen her berate her studente, eRe, Dona of Philp, Bara and Nabe Books 1981.aca wRITING A compteny Based Appiah ‘Bronne'spro-divoree stance should be rejected. After all, she was an antidiorce activist just a year ago. ‘This fallacious bocause Evonne may have changed {inthe meantime. The validity ofthe claim should be tested bya riteriacther than the claimant’ view or charactor Appeal to Authority —happensin any ofthetwo instances: ‘8) when one appeals to authority (or custom, tradition, Insttation oF book) in order to gain acceptance of a point tissue: oF 1b) when one appeals to the feclings of reverence or respect ce have of those in authority ar those who are famous Appt to authority is mown by other names: fellecy of argumentum ad verecundiam, argument authority, fargument to veneration, fallacious appeal to authority, ‘miouse of authority, irrelevant authority, questionabl authority, inappropriate thority. Bxamples “L bliove that tho statement ‘you cannot legislate ‘morality’ is true, beeavse President Eisenhower said it” TusoMaskinoLastringent beause Ms. my favorite movie star, seat. Jose: Thelieve, just lke there in the U.S. that abortion fi logal and moral within the frst six mothe. A person must have the right to decide what to do ‘with her body ony: Thoga disagree. Our university's top lady science profestor holds that orton ia immoral Jose: Why? Is she an expert on morality or law? Zeny: She's an expert on marine worms. Appeal to Belief — algo known as appeal to popularity, {is the argument Uhat because many people believe in claim, that claim must be tru tis fallacious in tha jst because many (or mast) people hold a belief to be true, uch believers are not an evidence that tho claim put forward is indeed true. Example: During Cail’ timo, mest believed the ‘sun révolwed around the earth. And just because the majority believed in it does not mean iis true. Appeal to Common Practice — argues that if most people do an act, it must be morally correct. This is fallactous in ‘hat just because something is commonly practiced, this oes not necessarily m=ke an act moral ‘The belief ie fallacious in Uaat mumerial majority ‘lone cannot be a. gauge for an act’s mora!y. For Instance: if an island has 10 people, of which 6 are non- thieves while 4 are thieves In this set-up, to be a non ‘hie “moral” because they are the majority. Tn ease a ‘pide hits the inland and eile 3 of the non.-thieve, the ‘thieves would now become the majority. Clearly their number alone would not make thievery moral Beamples: [paid the oficial because anyway most people do it noveadays Since everyboly eae sccepts money from po n elections, Ihave no choice bu to accept Appeol to Consequences ofa Belief — argues that belief ig true ifit lends to desirable consequences. Conversely, a belie is fale i i lends to undesirable consequences. ‘This fallacy is otherwise known as Use ergumentuom ad onsequentiam or argument tothe eonsequences. ‘The argument i fallacious in that the consequences of belief could not be a determinant at to the truth oF falsity of the elit Example: I my belief that Jose Rizal “ie allve™ makes me this belief in n way maka it true that Jobe Rizal [My belie that every time I wear a rod shirt I will pass an examination, has no bearing on my octually