LEGAL WRITING – Abad
PRE-WORK (Preparation/Drafting):
1. Where does the LEGAL DISPUTE lie?
2. What are the RELEVANT FACTS?
3. What LAWS/RULES apply to it?
4. What are the ISSUES?
5. What ARGUMENTS are you going to use?
LEGAL DISPUTE
 Legal dispute – involves a violation of a right protected by law or
which violation the law punishes. Right must be a LEGAL RIGHT.
 Your case will be decided for or against you based on the issues
raised. Arguments must touch the issues raised.
Example. Person renting an apartment allegedly could not pay the
agreed monthly rents yet refuses to leave his unit. A legal dispute
arises. This consists of (1) the apartment owner’s claim that the
tenant fails to pay the agreed monthly rents yet refuses to leave
his unit; and (2) the tenant’s denial of the claim.
Put in the format of an issue, the principal issue is: “WHETHER OR
NOT THE TENANT FAILS TO PAY THE MONTHLY RENTS YET REFUSES
TO LEAVE HIS UNIT”
FACTS
o If it is a new case, facts might come from interviews of the
persons involved in the problem or from related documents
that require sorting.
o If it is a case that has undergone trial, facts might come from
transcript of the testimonies of witnesses and the
documentary exhibits presented in the case.
 Your aim is to make a convincing presentation of your case in the
limited time that you are able to hold your reader’s attention. You
need pre-work.
GETTING THE FACTS
 Examine the position of your client and the opposite position.
Understand the case.
 Mark the facts that you consider important as you go over them.
 Determine preliminarily what the issue are so that you can extract
the relevant facts from the materials.
 WHO? WHAT? WHERE? HOW?
 In summarizing, put facts in the order of time. Or in a natural flow
or order.
APPLICATION OF LAWS/RULES
 Apply statute laws and case laws
 Locate the right law and legal precedents
o Find the parallel case applicable.
ISSUES
 Pinpoint the issues that the conflicting claims of the parties
present. Write them.
 A legal dispute can be recast into a principal issue. A case can
have more than one claims of violations of legal rights, thus, have
more than one legal disputes, and more than one principal issues.
 Multiple legal disputes could converge into one controlling issue.
The issue, the resolution of which serves as key to resolving the
multiple legal disputes, is the controlling issue.
 Quite often, the resolution of the principal issue depends on how
a subordinate issue raised in connection with it is resolved. Thus,
the subordinate issue becomes the controlling issue that would
decide the outcome of the case.
Think like a lawyer! (Aa)

Example.
Principal issue: Whether or not the tenant has violated the
lease by not paying the rent.
Subordinate issue: Whether or not the rent may be deemed
paid by a set-off of the lessor’s separate debt to the tenant.
If there is set-off, there is no violation of the lease.
If there is no set-off, there is violation of the lease.
 Distinguish the relevant issues from the irrelevant issues. Not all
issues raised in a case merit discussion and resolution. Only relevant
issues matter.
 Only issues that, when resolved, determine the outcome of the legal
dispute are relevant to the case.
 HOW TO SPOT AN ISSUE: There is an issue when the contending
parties do not agree on a given point.
o DETERMINE THE CONFLICTING CLAIMS. Compare the facts and
the laws that the 2 sides claim and identify the areas of their
disagreement.
o Draw up a list of all the legal disputes.
o Draw up a list of all the issues that the conflicting claims of the
parties present. (Also, make a list of what the parties agree on.)
 Classify each issue as (1) controlling issue; (2)
principal issue; (3) subordinate issue; (4)
irrelevant; (5) considered as mere circumstances
absorbed in the other issues (when no separate
arguments could be arrayed to support them).
 Disregard irrelevant issues.
 Controlling issue – issue, the resolution of which, determines the
outcome of the case. There can be more than one controlling issues.
 Factual issue – when the contending parties cannot agree that a thing
exists or has actually happened.
Example. Whether or not the accused took the victim’s
cellphone
LEGAL WRITING – Abad
 Legal issue – when the contending parties assume a thing exists or has
actually happened but disagree on its legal significance or effect on
their rights.

Example. Whether or not there is rape when the male organ
merely touched the surface of the female organ
 Issues are framed in the affirmative of the plaintiff/accuser’s claims
(Because the plaintiff/accuser has the burden of proving the
truthfulness of his claims).
o Exception:
 When the defendant/respondent/accused admits
the facts constituting the claims against him but
raises a defense that exempts him from liability
under it.
Example:
Proper: “Whether or not the defendant was negligent in driving
his car”
 affirmative statement of the plaintiff/accuser
Improper: “Whether or not the defendant was careful in driving
his car”
Example of the exception:
Proper: “Whether or not the accused killed the victim in self-
defense”
 Statement of the issue must be fair, not slanted in favor of a
party.
Example:
Improper: “Whether Ronald used force or intimidation in raping
Julia”
 Not fair because it already assumes that he raped her
 Statement of the issue should be comprehensive, leaving no
relevant point outside its embrace.
Think like a lawyer! (Aa)
 LEGAL WRITING – Abad
Example: “Whether or not Ronald raped Julia” ARGUMENTS
 Statement of the issue must be specific and clear.  Structure of a balanced thesis presentation:
o Writer must modify his statement of the issue to cover o FIRST – a clear statement of your thesis or where you
the area of the case that he has chosen to attack or stand on the issue to be resolved
defend. o SECOND – the arguments that can be made against your
position but with an explanation that those arguments do
Example: not doom your position.
Improper: “Whether or not the law is valid” (too ambiguous) o THIRD – the arguments in favor of your position; and
Proper: “Whether or not the Bouncing Checks Law violates the
o FOURTH – an appeal to the good sense of the person(s)
constitutional right against being imprisoned for non-payment of
who will resolve the issue
debt”
 In crafting your arguments, you need to be guided by your thesis
 Capture in your statement of the issue, the gist or essence of the
statement or proposition.
specific violation of right that the defendant committed.
Example:
Example:
(your stand on the issue)
Improper: “Whether or not the debtor is liable to the creditor”
RONALD DID NOT RAPE JULIA
Proper: “Whether or not the debtor unjustly refuses to pay his
debt under a promissory note that he issued in favor of the (arguments against you) (arguments in your favor)
creditor”
Example:
Improper: “Whether or not the respondent building official
(appeal to your reader’s good sense)
violated Sec. 3(b) of Republic Act 3019”
Proper: “Whether or not the building official issued to the owner
an occupancy permit for a building that has inadequate fire exits,  Write only the gist of the arguments. You will expand these
in violation of Sec. 3(e) of Republic Act 3019” arguments during the write-up.
 ARGUMENT is a reason you offer to prove your thesis or
 Threshold issues – those that could slam the door to any judicial proposition
consideration of the case on its merits.  A great bulk of legal arguments are in the mold of the classic
o Do not overlook threshold issues! categorical syllogism [a form of reasoning in which a conclusion is
o Examples: outside the authority of the court; filed in drawn from 2 given or assumed propositions (premises)]
wrong place; filed by wrong party; prescribed.
o These are usually brought out by a motion to dismiss in a Ex. People who lie cannot be believed.
civil action or motion to quash in a criminal action. Armando lied in his testimony.
Therefore, he cannot be believed.

Think like a lawyer! (Aa)


 Every sound legal argument is a combination of the right rule and the
right fact.
o RULE STATEMENT – the statement of a rule that applies to a given
fact or set of facts;
o CASE FACT STATEMENT – the statement of the fact of a particular
case that opens up such case or closes it to the application of the
rule
o CONCLUSION STATEMENT – the conclusion that the rule applies
or does not apply to the particular case.
Example:
If your thesis is: “JOSE SHOULD BE PUNISHED FOR CROSSING THE READ
LIGHT”
First, you can state the rule (RULE STATEMENT) that: “CROSSING THE
RED LIGHT IS PUNISHABLE BY LAW”
LEGAL WRITING – Abad
another without the latter’s consent, shall be punished for theft.
Cesar took, with intent to gain, Mario’s cellphone from his desk when his
back was turned and without his consent.
Consequently, Cesar shall be punished for theft.
 The facts of the case determine what rule will govern it, and not the
other way around.
 Sources of “rules”: Constitutional provisions, statutory provisions,
Rules of Court provisions, case laws, judicial precedents, widely-
accepted truths derived from logic, common sense or common
experience, etc.
Example: “It would be improbable for a barrio girl of tender age and
definitely inexperienced in sexual matters to fabricate a charge of
rape for no reason at all.” This is a “truth” developed from observance
of common life in the countryside.

Next, state the fact in Jose’s case (CASE FACT STATEMENT) that: “JOSE Example of roughed out arguments:
CROSSED THE RED LIGHT”
RONALD DID NOT RAPE JULIA
Then, you can state your conclusion (CONCLUSION STATEMENT) that:
“THEREFORE, JOSE SHOULD BE PUNISHED BY LAW” Arguments Against Your
Arguments In favor of Your Case
Case
 Key Fact – its presence in the case opens up such case to the Vaginal lacerations
application of the rule. As a virgin, Julia could have lacerations
usually found in rape
during consented sex
Example: victims were found in Julia
(rule statement): “CROSSING THE RED LIGHT IS PUNISHABLE BY LAW” In skeleton format: In skeleton format:
(key fact of the rule statement): “CROSSING THE RED LIGHT” Rule: “vaginal lacerations Rule: “true, vaginal lacerations are
are usually found in rape usually found in rape victims but”
 When the key fact of the rule statement is present in the case fact victims” (stating the exeption to the rule) “such
statement, then you have a match, and the rule will apply to such Case fact: “Julia had vaginal lacerations can also be found in
case. lacerations” consented sex with a virgin”
Example: THEFT Conclusion: “she probably Case fact: “Julia was a virgin”
Any person who, with intent to gain but without violence against or had been raped” Conclusion: “the lacerations found in
intimidation of persons nor force upon things, shall take the property of her do not necessarily indicate rape”

Think like a lawyer! (Aa)


RONALD RAPED JULIA
Arguments Against Your Case Arguments In favor of Your Case
But, uncorroborated, Ronald’s
Being sweethearts, it was not
claim is self-serving since Julia
likely for Ronald to rape Julia
never admitted it.
 To make a good argument, incorporate both the case fact and the
rule.
 The arguments must be connected to your stand on the issue – your
thesis or proposition (ex. that “Ronald raped Julia”)
RONALD DID NOT RAPE JULIA
Arguments Against Your Case Arguments In favor of Your Case
Because women will rarely
But not when the woman’s
admit to having been raped
testimony, like that of Julia, is
unless true, a rape victim’s
inherently incredible
testimony can stand alone
Absence of bruises on her body
despite rough grounds negates
rape by use of force
Being a barrio woman, it is unlikely
that someone like Ronald walked
her home at that late hour
It is but fair that testimony inconsistent with
common experience is not believed.
(appeal to your reader’s good sense)
 SAMPLE ARGUMENTS THAT BUILD UP:
o The favorable testimony comes from a credible witness.
Witnesses with no bias, one way or the other, are excellent
LEGAL WRITING – Abad
witnesses. (ex. testimony of the medico-legal expert and the
farm owner)
o The party’s version is inherently credible and consistent with
common experience. (ex. if the fact that Ronald & Julia are
sweethearts can be established, it is believable that they
forgot themselves that night)
o All the elements and requisites of a valid claim or defense
has been proved. (ex. the prosecution against Ronald can
show that it has established all elements of the crime of rape
to warrant conviction)
 SAMPLE ARGUMENTS THAT DESTROY:
o The argument raised is irrelevant. (ex. Ronald’s
irresponsibility when he refused to marry Julia is irrelevant
since being irresponsible does not make a man a rapist)
o The argument has little weight given the other
considerations in the case. (ex. the argument that “Ronald’s
failure to see Julia’s parents to explain his side shows his guilt”
can be opposed by “That failure can be explained, as their
sons would have killed Ronald if he immediately went to see
them after their daughter cried rape.”
o The argument is baseless, or not supported by fact. (ex. the
argument that “Julia is a good, innocent girl who would not
cry rape if it were untrue”)
o The argument is contrary to common experience. (ex. “Julia
was not afraid to walk home alone through empty rice fields
near midnight”)
o The argument is inconsistent with undeniable facts. (ex.
“Julia wasted no time to file her complaint against Ronald”)
o The argument is inconsistent with a prior claim. (ex “Julia
testified that Ronald was her suitor”)
 End of PRE-WORK 
Think like a lawyer! (Aa)
 LEGAL WRITING – Abad

WRITE–UP STAGE BASIC STRUCTURE OF A MEMORANDUM, OPINION, BRIEF, PETITION,

COMMENT, POSITION PAPER, DECISION, OR SIMILAR LEGAL WRITING:
INTRODUCING THE ISSUES:
STATEMENT OF THE CASE
 State only as much BACKGROUND FACTS as are needed for an STATEMENT OF FACTS
understanding of the issue(s) that the parties present: PLAINTIFF’S VERSION OF THE DEFENDANT’S VERSION OF THE
o Statement of the case purpose: to introduce the FACTS FACTS
o Statement of facts issue(s) ISSUE(S)
BODY OF ARGUMENTS
 STATEMENT OF THE CASE – its purpose is to provide a clear and RELIEF
concise statement of the nature of the action, a summary of the
proceedings so far had, any challenged order or decision issued in the  Present both sides’ versions of the facts.
case, and other matters necessary to an understanding of the
controversy.
o Statement of the Case describes the nature of the action and
the proceedings it had gone through.
o Quoting the information as part of the statement of the case
is not needed, unless the allegations in the information are an
issue. It will be sufficient to point out that the accused has
been charged with a particular crime, ex. theft.
o You need not include factual statements e.g. statement of
conflicting evidence of the parties – these are to be written in
the Statement of Facts.
o Instead, mention the basic legal disputes that the claims of
the parties produced.
o Where a judgment on the pleadings or a summary judgment
has been sought by one or both of the parties, a recitation of
the allegations of the complaint and answer in the statement
of the case will be useful.

 STATEMENT OF FACTS – narrates the transaction or event that

created the legal dispute and led to the filing of the suit.

Think like a lawyer! (Aa)