“the language of law must not be foreign tothe ears ‘of those who are t6 obey i” — Learned Hand, judge and legal philosopher “the louryer's greatest woopon is clarity, and its whctstone is sucinctness” CHAPTER! INTRODUCTION | ~ dude Prettyman Purpose: ‘Be ableto define logal writing, its types and categories. Bo able to name e-amples within ench category. 1, LEGAL WRITING ‘A. Definition — legal writing isthe kind of writing used, by lawyers, law professors, judges and other workers ip the fled of Jaw to express legal rights obligations and, ‘tinions 1B. ‘Types — leg writing may be informative, persuasive or functional 1. Informative writing conveys information ou an {seve involving the law or a person’ leal rights. This type of writing do 2 “path vieaue-a cot of facts regardless of who ik2 LEGAL WRITING ‘Acompetney Based Approach available lga tools to supporhis thesis These may be pins of evidence offored in court, sections of the ‘desisions_of the Supreme Cour las, ona ‘Bxamples: academic legal ‘writing, motions, pleadings and argument section of the bret. 8. Functional writing is designed for a specifi: uss ot ‘emul inlaw These are deeds, wills, contracts ot ‘taflsof laws. and ordinances which legally bind {hose involved. Some specif format, ceremony of legal requirement maybe present in ths type of writing. Ths type of writing need not be analytical hor persuasive. [tis enough to be accurate ang ‘complete yet understandable, Tl, TWO @ BROAD CATEGORIBS OF LEGAL WRITING AL Logal Analysis 1. Preditoe Analysis — [A predictive document deals with a legal question in 3 ways: Analysis — The fet snd lowe are_anslvzed ands closely, The fis are then applied {asthe law (or Jurisprudence’, and they sre ‘nierpeted_acsoing 1. the meaning ofthe law, * Prediction — ‘Theontcomeafthe legal question, whether positive or negative, is predicted. ‘e Recommendation — The writar, based on the facts and law, gives his advice or recommenda: tion aa fo what isthe best line of ation under ‘thecirmumstances, ‘Bxamples: opinion memorandum written for senior partners and legal opinion letter for clients, a ‘The pinion may be in favor or against the ‘question raised by the cient. Predictive document belong tothe infor- ative type af legal writing. cone 3 IsTRODUCTION. 2. Persuasive Analysis — A persuasive document attempts to persuade 1 judge, arbiter or any other deciding authority Bxamplo pleadings, motions and brief B, Legal Drafting ; ‘This is the functional type of legal writing. Here z or ns, ana ‘bandbooks. Among the examples are: contracts, deeds (eg. of sale or mortgage) wills and testaments for private ‘persons and laws, regulations and ordinances which bind ‘the publie In general Legal drafting require ologal authority. A separate subject inthe lat curviculum, “Legal Forms,” deals with ‘egal drating. MIL, DEFINITION OF TERMS A. Memorandura— iterally tobe remembered” is paper that explains and summarizes specific point of law for 3 judge for another attorney or aration, Pleading — The farmal ‘The specific papers by ‘which te allegations of parties toa lawsuit are presented in proper form specifically the complaint of = plaintift fand the angucer-of-a-dofondant plus any additional ‘responses to thoae papers that are authorized by law." 778 mk memoranda hing tobe emember et Zing of meme ‘ands gece mena talon rm mes nl oe em SED Orn. sword won tthe topo not by 1542 Kea to and ‘vowel See Omine Rm Dic, brea ond ‘Solaquenepindan lt ysl Nerecia 308 “nia daar betedinnrscxcfc Wet vite: Nove ‘nce, Ona aan nga, prtr sopypresned thence on ‘Rbwnel eh eysioed tir it Tht worted wel noah in th ea cout ‘lint de eur were ed bcm vain ena, babe ‘Scur ouriaf ie King Seanad ae faty. Frm ten th oat {Sotelo te sna cetyl carts began ere ed more {demand wen pangs hate ot a party pnton nese.ea 0A warrino compen Raed Approach Motion — A.written or oral application made to court, ‘orjudge taobiain a rling or order directing thatsome.act ‘bedane inavor ofthe applicant. The applicant is known, ‘a the moving party, oF the movant. Bxamples: ‘A motion to diamist asks the court to diamisa an ‘action because the initial pleading, or eamplaint, fails to ‘state a cause of ation or claim for which the law prov'des ‘aremedy. i ‘A motion for summary judgment, also known as ‘4 motion for judgment om the pleadings, asks the court ‘to make a judgment solely on the facta set coth in the pleadings, without the =eccssty of tral. A eourt will ‘ant a summary judgment motion when the material facts ofthe ease aro notin dispute and all that remains to ‘be determined are questions af law. Brief ~ A yritten docu:rent drawn up by an aneney for, ‘aparty-in.lawanicor by appearing pro se that concisely states the fllrseing 1. issues of lawsuit; facts that bring the partes to court; relevant laws that ‘can affect the subject of the te; and 3 | : e i F F + 5 F {some error_or impropriety-that occurred during the {tial A statement of the issues presented for review, @ summary of how pertinent laws affect the fact, and ‘Statement of the ‘olief boing requested are ecscntil ‘laments of an appellate brief. The appellee's brief will carne 5 semRoDUCTION argue that the lower court acted propery in its judgment and request its afirmance, while the appellants brie will attempt to convince the court to reverse or vacate the Tower court's judgment because it acted improperly?CHAPTER II ‘SIMPLICITY “Plain language i, or should be, very bit as accurate and precise ‘as traditional legal writing. It is clearer ~ considerably clearer. It fs ueually shorter and faster. 11 strongly preferred by readers. It ‘mould greatly improve the image of lawyers." — Profeasor Joseph Kimble, Answering the Critizs of Plain Language "You are no iss a lawyer for being understandable” = Christopher T. Late Purpose: Be able to write simply. The student is expected to: a) use short sentence, asa rule; b) avoid wordy expreasions cliches and {autology; ) avoid elaborating on the obvion=# yet to Ube point ‘soonest; ©) minimize the use of connectives and relative pronouns, avoid convalnted word constructions and g) replace mulisyllaLie torms with shorter, more understandable words. ELEMENTS OF LECAL WRITING ‘The elements of legal writing are: ) simplicity; b) arity, and e) persuasiveness. A. Simplicity Simplicity in writing means to write plainly and simply. To observe the rules on “economy of expression,” ‘each sentence must say what the writer means and means ‘what the writer wants to aay. Convoluted words and ‘word-constructions mit be avoided. This is best done by preferring shorter sentences, and choosing shorter words. ‘Repetition must aleo be avoided as much as posible. component. Every word that serves no function, every Tong word that could bea short word, every adverb which ‘carries the same meaning that i already in tho verb, weakens the sentence, We are a society strangling in Tinnecessry words, circular constructions, pompous fils land meaningless jargon. ‘Who can understand che visrous language of every- dday American commerce and enterprive: tae business lt- ter, the interoffice memo, the corporatian report, the no- ‘He: from the bank explaining its latast “simplified” state- ‘ment? What member or an insurance or medial pian can Aecipher the brochure that tell him what his costs and Trenefts use? What father of mother ean put together « cll’ toy on Christmas Eve or any othor eve ~ from the {nstrurtons un the box? Our national tendency isto in flate and thereby sound important. The airline pilot who ‘wakes us to announce that he is presently anticipating ‘Cxperiencing considerable weather wouldn't dream of saying that theresa storm aheed and it may get bumpy. ‘The sentence isto simple — there must be something wrong with it B, Use short sentences Lawyers generally write in long sentences. A com plain, say, for replevin' may eontain paragraphs consst- {ng of oniy one sentence. For example: “The herin plaintiff is willing ond ready to give a bond pursuant to the Rules of Court ‘exeeuted in fosor ofthe defendant inthe instant ‘case in an amount double the valuation ofthe “ulject personal property above described, and forthe feturn ofthe same property if the return Tin, W880, Writing Wl An Infra Cui Writing Noni, ‘New Yar Harpe ow, 8“LEAL WRETING Acampetency Based Aprons thereof be adjudo?, and for the payment to the same defendant of such amount as he may ‘recover from the plaintiff inthe herein action.” ‘The sentence above contains 76 words inno les than 7 separate thoughts, Whereas a good sentence typically ‘contains only one main thought in less than 25 words. By “typically” means that « sentence may have more than ‘one thoaght. It is howev-r preferable to express only one for at most to though's in a statement. Long sentences make one» writing unwieldy and dificult to understand. They tax she reader's concentra ‘tion and memory. He will have a hard time figuring our ‘what the writer wants to say ashe wades through thiek- ‘ts of main snd subordinats clauses. Our sample state- ‘ment may be rewritten: “The plaintiff is willing to give a bond doubie the value ofthe property. He likewise ur Uertahes to return the prenerty tothe defendant ‘or pay him auch amount if adjudged todo s.” While short sentences are recommended, one may cccasionally use Tonger ones for variety Mark Twain [tdvieed writers to stick to short sentences. However, he ‘added: “Attire (the writer) may indulge himself swith alors one, but he will make sure there are ho folds in i, no vagueness, no parenthetical Interruptions ofits vito a8 @ whole; when he ‘has done with it, it won't be a sea-erpent with half ofits arches under the water i wil Be a torcelight procession.” C. Omit needless words ‘Simplicity and economy are good qualities to have in legal writing. One must therefore omit unnecessary word eels Breet Gosrn Pe Compt Plain Word, 1667 st US, ‘dy hey Cr Kn We 8) ced by Wri re cuarren ° ‘Srcicrry RULES 1. Avoid wordy expressions ‘Simpler construction is preferred than using too many words toexpress an ide. Wordy: ‘The ears were bought forthe purpose of starting a taxi Dbasines.| i Concise: The cars were bought to start a taxi busines. Worl, ‘The brothers succeeded in baking two huge ice-cream cakes. Concise: ‘The brothers baked two huge ice-cream cakes. Wordy ____ Goncise answered in the afirmative [suid yes inthe amount of Fn exen nin the event of in [if the event that_ in the meantime in the near future in the neighborhood of i this place view ofthe Tact that sine, because large number of many [major portion of [most taking into consideration the [since fact that [here ran bene doubt that [doubtless with the exception of [except with reference to! with regard [about aaa warms ‘ACanpetene Bed Apprench 2. Avoid elaborating on the obvious ‘This means do not expand or restate the obvious. I bores the reader with information he already has. Wordy: Annie Bantug’s two sons, Kenneth and Julio play judo, ‘Concise: Annie Bantugs sons, Kevin and Julio play judo, Wordy: Needless to say, you are your mother’s favorite, goes without saying, you are your mothers favorite, Concise: You are your mothers favorit. Wordly: A baby girl was born to Spa, Reyes, Concise: A girl was born to Spe. Reyes 8. Get to-the point Omit unnecessary prelininaries, Wordy: We are very proud and happy to announce that our ‘office won the golf championship this year, Concise: Our ofice won this years golf championship, Wordly: There is no doubt that some people will disagree ith me, int im my opinion, I flzmly believe that Concise: I believe that teachers should not run anymore as PTA. ‘board members, 4. Avotd tautology ‘This means doing away with unnecessary repetition of an idea in aifferent words, Wordly: The guests stood up during the flag ceremony. Concise: ‘The guests stood during the flag ceremony Wordy: Please vole out your opinion, Concise: Please voice your opinion, current ” Wore Concise [actually happened pened [advance planning planning fany and all, al i was barn isl waa bor Ibefore in the past Ibetore cheap in price [cheap [eombined tgetier feombined feonneet cp, end up, finish up, — feonnec, end, Rais, jin liacusted ina tak diseased [during the course of during fesch and every ach fequaly as [every once a while cin. a while fatal death {death final destination destination first and foremost for the purpo-e of in color hopeful optimism fotimism ie throng a itand when ‘ny opinion Think hin ide of inside Invited guest | long length of ine flong tine | up with meet in eallees of ods [moder eallenes jumerous in number numerous rea (or only) fone and the same Joe (or the same] past history history [rarely ever rarely [requirements needed for [requirements for round in shape round lcesaw back and forth lcceaw — ie Girt, Moder Bali a Acton ings: LC. HEATH & CO.{oA warns current ry x Cmpetney Bae Apprch Shruicrry Se Tamall Word: Her version is a strange ome. and all sil Concise: Her version is strange. [the two twine te Ewin [throughout the whole night” [Usroughout the night. The phrase the fact that is often unnecessary. hatally destroyed destroyed [rue ets facts Wendy ‘coon {unexpected windfall windfall [verdant (orverdant) dae owing tothe fact that [since because calling your attention to the fact that [reminding you 5, Bliminate certain phrases in spite of the fact that although'though ‘2. Wordy sentences may be "ade shorter by liminat- My attention was not called o [Twas not aware that ing “there,” “that,” “which,” “who is,"“as to,"“it or “one.” ‘the fact that Wordy: ‘There were cight members ofthe faculty who attended the fact that you have not succeeded [your failure the meeting the fact that you had enrolled ___|you: enrolment Concise: Bight faculty members attended the meeting. Wordy: This is topic that interests me, Concise: This topic interests me, Words: Thememorandum which Isent to you last weekexplained {in detail the background ofthe case. ‘The memorandum sent to you last week explained tho cease background iz detail. Wordy: Her cousin, who is an ssociate of the same frm, isa CPAAlawyer. ‘Concise: Her cousin, an associste of the same firm, is a CPA: myer: Wordy: He isa man who does not ike litigation, Concise: He dislikes tigation. Wordy: ‘The question as to whether you or your husband should Sle the divore in Switzerland, Concise: Whether yor or your husband files the divorce in Switzerland. Wordy: It is. recommended that the compromise. agroement ‘which was signed on April 2, 2005 be enforced. Concise: ‘The compromise agreement of April 2, 2005 should be enforced. Wordy phrases may be shortenci by eliminating propositional phrases Wordy: the leader ofthe unit Direct: un‘tlecder Wordy: the treasurer ofthe homeowners association Direct: the homeowners association treasurer Wordy: the employee with innovative ideas Direct: the innovative emplayee ‘&. _Aphrasemaybeconverted oa wordor be eliminated altogether” Wordy Concise [ns por our telephone conversation as we said/iscusted [as sn as posible by specific date) [ns the capability [ean [ake into consideration [eoneider Gyan A Bar, A Manages Cade Mode! Memos New Yor MIF Backs, 1996 415408. me ainda : wi een = a are ak ry — i i Ee =e ina sloppy manner slonpily — “Acsuccession of loose sentences: See a ee PES Pree epepee Tae = ee i i ese eer rae Seer ees eee cap Fe pp cehicn pent) = = = Soya Ses ree = Se aes ees — sooo emer Xe rs Fees aa Seg ae 7 ene ee He ee oe ara theres at food dies | peels ae fe ee eee ee ao acme [paramere febout, on frm in town, 6. Minimize the use of connectives and relative pronouns ‘Some writers habitually string together two or more sentences using connectives and relatives, Connectives may be: a) coordinate ‘conjunctions such ax “ond” and "but which join clauses of equal rank; or b) ubordinate conjunctions such as as,” "beenuse,” “if” ‘that? “though? which connect to the principal clause a clause of ‘minor rank. Relative pronouns or “relatives” relate to an antecedent “and invroduces a qualifying clause, et, Tmet my cousins who taught sme bowling Bxamploofrelatives: Subjective Possesaive ‘Objective [xh whose. [shor [which lof which [whieh Tika corinating conjunction are or nor fr, et and. Asshown, a single sentence composed oflanco clauses joined by ‘connectives may be recat in simple centences, The result preserves the orginal tzought‘low of the writer without taxing the reader to go through great lengths. If anything clarity and conciseness is achieved leo possible to jon two clauses with a semi-slon instead ot aconnective.(CHAPTER Ill CLARITY “There is nothing as mysterious as something clearly seen.” = Robert Frost “The pric: of clarity, ofcourse is thatthe clearer the document ‘the more obvious its substantive deficiencies. For the lazy ‘or dull this price may be too high.” — Rood Dickerson, Professor of Lav, Indiana University Purpose: Students are expected to: a) use conerete instead of abstract terms, b) when abstract terms could not be avoided, tobaek them up ‘with illustrative examples) avoid wide gaps between subject verb ‘and object; d) avoid nested modifiers; e) avoid dangling modifiers, ‘avoid ambiguous pronoun referencr; g) avoid punetuations which ‘cause ambiguity) apply the seven rales of clear writing. 1 CLARITY Clarity in writing resulta when the writer is able to express exacly (and unambiguously) what he wan to be reflected on hia work. The last thing a writer would want isto Confuse his readers. On one love, clear writing involves clarity of expression and sentence structure. On another, deeper level Clarity refers eloarness of one's Yogic and arguments. Clear expression happens when what one thinks is ruflected on that which one has waitten. To cheek if this has Ihappened, the writer must re-read his work and lok at it frm the point of view of the ordinary reader. The writer must check for ambiguities that i, if some terms may have more than one meaning. Generally, what is unclear forthe writer is likewise ‘unclear forthe reader ccuarren ” ‘cardinal principle lear writing isto be conerete. This ‘will prevent ambiguity and room for misinterpretation. “Many Filipinas are in favor of contraceptives” is abstract when compared to “a 2007 research conducted by the University tof Eastern Vieay shows that 75% of Filipinos above 21 are {in favor of using condoms.” When one eannot help using an abstract statement, this must be ellowed by conerete examples. USE FAMILIAR AND CONCRETE WORDS: Aristotle said that: “Side io be good must be clear..that speech which fil to convey a plain meaning wil filo do just twhat speech has to do...Clearness is secured by using words {nouns and verbs alike) that areeurrent and ordinary.” Plain meaning is a by product ofthe use of definite and ‘wurde makes one's prose indefinite and vague. Example: Abstract ‘She sustained boreavement of her paternal relative Conerte Her father died Abstract ur counset failed to come because of the onset of inclement weather. Conerte Her counsel could not come due tothe storm. Abstract ‘You need agricultural implements to do thejob of planting Conerete ‘You need a spade to plant treeseo wars ‘ACampeteney Basel Approach ‘Tho use of sighfalutin words is often an attempt to cover for one's inability tobe definiteor specific. For instance “birds of the same feather flock tether” cam become ‘elestial denizens of identical plumage congregate in their own proximity" ‘The graphic deseription in Exodus 8:7 of Moses inflicting ‘plague on Exypt which originally reads: “He lifted up the rod and smote the waters ofthe river..and all the watere that were inthe river were turned to blood. And the fish that were in the river dad; and the river stank, and the Egyptians could not drink the ater of dhe river; and there was blood ‘throughout the land of Ey. the hands of sentimertal and florid writers may become: “The water was impacted by his rod, whereup on a polluting effect was achicved. The consequent Toxifcation reduced the conditions necessary for the “ustenance ofthe indigenous population of aqratie tertebrates Below the level of viability. Olfactory dis- ‘comfort standards were substantially exceeded, and potability declined. Social, economic and politial isorientation were experienced fo an unprecedented degree ‘Thus, why say: “member of the feline family” when one is ony talking about a “cat,” or say he “rendered a negative response on the subject of my solicitations” when toht one means is he dented my request.” AVOID WIDE GAPS BETWEEN SUBJECT, VERB AND onsECT A. Gaps ‘A sentence normally consists of a subject and a verb, withthe object Gf any) following the ver, ea, The Tawger shouted atthe witness, Ifthese three are placed in TF a, ot order and near one another, the sentence becomes easily Understandable. Pulling modifiers between the subject fand verb or between the verb and its objeet makes for tedious writing. ‘With gap between subject and verb: “The plains, disgusted at how long it took {forthe ourt to deide such a simple eectment case, ‘le a motion for early resolution.” Improved: “The plaintiff fled a motion fr early resolution. He was disgusted at ths court’ delay in resolving is simple ejectment ens.” 1B. Modifying the modifiers Parteulacly avoid “nested modifiers” which modify ‘the modifier. When this happens, ake away the “nest” of ‘modifiers and make a separate sentence. ‘With Nested Modifier: “Antonieto Doro, who ‘as defendant's unl ‘and mong those defrauded Sy hi, Bled before te court closed for Christmas vacation a Motion to Tintervene” Improved: “Defendants rele, Antonioto Doro, Med a Motion io Tatecrcne before the sourt closed. for Christmas vacation. He was among those Gefrauded by defendant Poor: “Mari, who at that time was carrying bundle of nowly-rinsed clothes some of which belong to plaintiffs son, while trying to eseape through the Dack gate, was caught by the plaintiff there.” Improved: “Maria was caught by the plaintif a the back gato as she tried to escape. She exrried a bundle‘ea wren. Acompetney Base Approeh of newly-rinsed clothes, some of which belonged to plaints son"(passive) The plaintiff eaught Maria atthe back gate 8 she tried to escape, She carried a bundle of newly- Fined elothes, sme of which belanged to plaintiff's son" (active) IV. AVOiD MISP:ACED OR DANGLING MODIFIERS A. Concept ‘A modifier is a woed or phrase that desribos 2 gives more detail about a concept A dangling modifier attempts {o clarify a word not clearly stated in the sentouse. As a ral the writer has a fair amount of freedom where t9 place his modifier in sentence, eg. He edited the letter quickly He quickly edited the letter. Quickly, he edited the ltt In the above example, the thought ofthe sentence scmains, When a modifier is misplaced, the meaning ‘changes singe the modifier appears to describe the wrong, ‘thing, For exampie: New Dalakit Municipal Elementary School (orhich ie “nev,” “DalakitY or the “Elementery Sena") Our policy is to give our buyers the lowest possible prices and workmanship. (Surely the shop ‘owner means "to give our buyer. worknvanship at lowest possible prices”) “Mental Health Prevention Cente.” (A sign in ‘a hospital clearly containing a misplaced modifier. ‘What it means is probably “Mental Health Disease Prevention Center”) “Ribbos-eutting ceremony” (Better: “Cuting of the Ribbon Ceremony,” as its the ribbon being ext, ‘ot the ribbon that does the eutting) ‘CAT 1B. Rules in revising dangling modifiers 1 Place single-word modifiers near the word or phrases ‘that they modify, especially if the modifier tends to ‘egeribe the wrong word Poor: He almost ate all the,deserts in the party (here the subject has not yet eaten) Better: He ate almont all the desserts in the party. Poor: ‘The judge could understand the Hocano spoken ‘by the witnesses easily ‘Query: Did the judge understand “easly” or Aid the witnesses spoke “easily” Better: ‘The judge cout easly understand the Moeano spoken by the witnesses. Likewise, place the modifying phrase or clause closest to the word it modifies. Misplacing these modifiers next to the wrong word often seentally ‘changes the meaning ofthe seutenc. Por exemple: oor: I heard that my wife intexded to throw & surpriee birthday party for me while Iwas outside hher office window. etter: While I seas outside her office window, heard that my wife intended to throw surprise birthday party fr me. Poor: “Three television sets were reparted stolen by the Dalahit City police yesterday.”aca warriNc Acampetney Bad Apron Better: “The Dalakit City police reported that three television sats were stolen yesterday.” ‘The wrong placement of modifies ean have bourd results. For example: Poor: “Calf born to farmer with two heads” Better: “Calf with teo heads born to farmer” Poor “Falling a thousand feet from the cliff we finally saw Pagsonjan Falls.” Better: “We finally saw Pageanjan Falls falling thousand feet from the cliff” 8. By categorically naming the doer, « dangling ‘modifier ean be eliminated. For example: Poor: Having finished washing the dishes, the door wns closed: ‘Since the doer of the action expressed in the participle having finished” was not clearly stated, {he partcipial phrase becas:e a dangling mesifer. ‘The modifier modified nothing since obviously it was Tot the “door” that finished washing th dishes. Better: Having finished washing the dishes, Mortha closed the door. \V. AVOID THE AMBIGUOUS PRONOUN REVERENCE A. Concept Careless use of pronouns ean result in ambiguity problems, This occure when the writer allows multiple curren a can antecedents as possible references to a single pronoun. Pronouns, when not placed properly, can point to <> wrong noun thereby” changing the meaning of the Tintence, et, "Your skills will surely benefit your friends obo mure to use them? The antecedent of them may be “lle or friends,” making the sentence ambiguous. How to avoid ambiguous pronoun reference 1, Toavoid confusion, one must rephrase the sentence {tp dearly identify the antecedent. For example: Poot: Robert’ father will use hia cor forthe pint, {snot clearly stated here if whose ear ill be used.) Better: Robert's father will se Roberts car for the pieni. (if referring to Robert, oF) Robert’ father will use the latter's ear forthe lente, (reforring to the father) ‘2, Dernonstrative pronouns such as this, that, these, {hove them should only be used when the antecedent in definitly established. or example: Poor: Repressed jealousy and hatred among brothers and sisters i counterproductve. You must get rid of. ‘hem, (Asean rele to jealousy and hatred o to the siblings? Better: “Repressedjaulousy and hatred among siblings is counterproductive. You must get rid of these fooling. Sometimes the use of demonstrative pronouns is inherently ambiguous because the antecedent is not given but assumed,‘LecaL WRIMING _ACampetency Based Apron For example: Poor: ‘That ie what I have been waiting to hear from you, (What does that refer to?) Better: That pnrase “love thy neighbor” is what I have ‘been waiting t hear from eu. ‘VL PUNCTUATIONS MUST AVOID, NOT CAUSE AMI- curry Punctuations are mars in writen communication used to help the reader better understand the matcsial. One such ‘use sta eliminate ambiguly. Reckless use of punctuation ean Ihave abeurd results, ‘The cerial comma, which is used before the conjunction and or or in list of three of ore items, is a ease in point ‘Without the serial comme, the Governor and the President become codeachers the author inthis statement: “The wr‘er| aratefully acknowledges the invaluable help of i co-teachers in the State Un’versity, the Honorable Governor and the President ofthe Republic of the Philippines.” Wore, the sentence implies that the Philippine president 18 provincial governor atthe cme time, The ambiguity can be cured by putting a serial Suinma after “governor” gt, “the Honorable Governor, and the President ofthe Republic of the Phitppines.” ‘The following sentence is ambiguous’ “I cook banano, carro, ube nnd chocolate cahes.” The reader would not know ‘if three or four cakes are being talked about. Putting a comma ‘after “ube” indicates thatthe “ube,” and “chocolate” cakes are ‘separate (On the other hand, reckless use ofthe serial comma also results in ambiguity, eg, "he writer gratefully acknowledges the intaluable help of his mother, the Honorable Provincial Governor Else Eyplera, and the President ofthe Republic of the Philippines” Here, the author unwittingly made itappear that ‘the lady Governor is his mother when such isnot the ease. ee ete cee So coapren = ‘CLARE ‘To avoid both eases from occurring, the sentence has tobe rephrased to avoid listing the items in an ambiguous manner. For example, after “mother,” put the cmjunctio "as wel as,” taf, his mothers well asthe Honorable Provincial Governor Elie splera.” ‘VIL. RULES IN CLEAR WRITING A. Beclear on your point ‘Good legal writing, ain all od communication for that matter, requires thatthe author must have a point, find ts clear sbout it, Writers who are not sure what they ‘want to say eannot be understood. Their work appears to Tamble, with the reader not knowing where he or she headed. “There ar three ways to know when one fs unsure of his or her point: a) ky over-deacrbing the background to what one wants to say; b) hy being unsure whether one {eior or against a certain tape; and e) having too many points within one work, 1B. Make sure your point is communicated at once ‘As important as having a point, is to go direct to the point in one's paper. There is no use heving a long {introduction and thea stating one point near the end. BY this tim: the reader is either tired or puzzled not knowing, ‘where the material is headed, Have a structure, This is wiere you put your data, ‘analysis and argument "The inirodction, for example, must already contain ‘agummary or abstract of your work The background must ‘nly be short overview ofthe problem cx legal concepts to De discussed, Extending an explanation ofthe background tll ie the reader, and wil give an impression that the Deckground is already the main concept discussed by the paper, The facts of @ particular case under study must ‘nly cite relevant detail. Putting in more will make the reading tedious. The analysis will discuss the writer's frguments. Here, the writer will cite facts, profs and tvidence supportinghis position le may alsocite counter. proofs again his postion, and discuss how these wouldcompen Based Approach {all short of the writer's arguments Ifthe analysis covers many areas that may be broken into sub-parts, and each part is discussed separately, the paper must end with a {hort conclusion which i a summary ofthe main analysis presented, Observe grammatical rules ‘This cannot be overemphasized. Non-observance of the rules on grammar subjeets the writer to a whole Tot of accusations: from being sloppy and Inzy to being ‘uneducated, and worse, someone who writes not sensical’. ‘Grammatical rules shall be treated in a separate chapter Be previse Know the exact meaning of the term. Ifthe term is scientific olga and has a technieal meaning, know both its ordinary and technical meaning. Never use a term because it “sounds” right, particularly when you are not Sure of its definition. To be sue, eonsult the dictionary. Also, avoid lgalece. A separate chapter is devoted to legalese. Be Consistent ‘Are my tenses consistently present, or consistently in the past? From whose point of view am Teaming frm? Who are my irsented readers? Be logical and clear in your argument [As a writer, one must be clear beforehand whether ‘one is deceribing or arguing, I the paper argues on Something, it i must be made clear beforehand. The thesis statoment must be stated from the very beginning to guide the readers what the writer is arguing for oF ‘against. Unless the waiter is clear with what he or she intends todo the paver will not be clear to the readers. Rales on argumentation (and “porsuasiveness") on paper willbe discussed separately. CHAPTER IV PERSUASIVENESS “tf you wish to win a man overt your eas, frst make him your rand.” Abraham Lincoln Purpose: ‘Tobe able to write persuasively by using any of the four modes ‘of logal reesoning. a) rue-bared Feascring; b) anctogical (ang the ounteranalogcal reasoning); e) policy-based reasoning; and d) the ‘arative reasoning 1. PERSUASION Persuasion isa process where people are guided towards the adoption of an idea or course of aetion. In legal writing ft pemuasive document attempts to influence the deciding ftultorty to favorably deide the ease in favor o one's cient, ‘The deciding euthorty is usually the judge. However, he may also be the arbiter in an arbitration dispute), commissioner, Fearing fice, mediator or te other party tothe dispnte. I. MODES OF LEGAL REASONING ‘Reasoning ia the process of drawing conclusions trom facts or evidence. To reach the desired conclusion, arguments ‘nd proofs may be sed, ‘There are four modes of legal reasoning: a) rule-based reasoning: }) analogical (and the eounter-enalogieal reasoning); ‘Sy paliey bocet reasoning, and ) the narrative reasoning. A. Rule-based seasoning Invule-based reasoning, the conclusion is reached by anclyzing and applying the law, rae or legal principle. ”_Acompeteny Based Apprech Example: ‘The law says: a contract is annullable where one of the partes is incapable of giving consent to a contract! ‘Albert "yas seventeen when he signed the contract. ‘Therefore, Albert should not be bound by the contract ‘because he signed it when he was a minor. B. Analogical (and, by extension, the “counter-analo- ‘Flcal”) reasoning ‘There are three posse types of analogical aru- ment 1. Arguing from precedent. This typeof analogical argument hhappens. when the conclusion is reached by showing ‘dimlaritien between the ease decided by the Supreme (Court and the ease ofthe cient. This is usually achieved hy invoking the doctrine of stare decisis” ‘The lawyer reasons by showing that there is dirvet factual similarity between the case decided upon by the high court and his clients ease. If the Supreme Court decided the case this way, then the client's ease must be ‘deided this way due to the similarities of facts. To put eonversely, my client's case hould be decided in this, manner" beeause after al, the Supreme Court ina case of Similar facts also decided in“this manner.” Example Inthe ease in question, Mario was ssteen when he signed the contract in 2009, However belie about his age by misrepresenting himself to be 20. Ina case of similar facts, Mercado v. Espiritu? the Supreme Court declared ‘the deed of sale valid, snd eannot be annulled in spite the GRE OODE, Art. a0 tae: The illonng entrar cable a been mh thre may ve benno ama tte crating var) FuUNS\ afte par wince grin ena os co A ‘TP -Te levi eonet ge comet ts cotoc () Uneaten “Bhar dc no pits mower” Sad ty Uh econ a Sar ot nha anda Sve Dec edie awh he curt a seed ‘Die Sync tina pic crn wa a ct wl aes ak cil sad opty tar tana were the faci are substantial te ame Government falandou 440.6800 curren = PEREUASIVENESS fact that two ofthe four partios were minors, The reason {their misrepresentation about their age amounted to ‘etoppel They eannot be made to benefit from their bad ith 2. Argument ofsame legal application. Analogical reasoning ‘may also be used to show similarities that if the law ‘applies one area, it may be understood to apply to other nila areas ma cage that attempls to impose damages tn the seller of immovable or real property for failing to Ainclose a major defe-: ofthe property, the lawyer might ‘argue thatthe law hs imposed such duty on sellers of ‘otsonal property a8 well, He might argue that rule for Fal and personal properties are the same. a. Mutatis Mutandis Mutotis mutandis! an example of argument ‘using the vame legal application. This happens when fone compares multiple situations having multiple Variables where some variables remain constant, ‘while others ar allowed tobe changed. For examale, the injunetion in the ten commandments “Thou shalt fot covet thy neighbor's wif” will apply mutatis mutandis vo "hy neighbe='s husband” as wel ‘Aartcle 111 of “The Law ofthe Sea” states: "The right of bot puts shall apply ‘mutatis mutandis {o violations in the exclusive economic zone oF fon the continental shelf, inciuding safety zones ‘tround continental sbelf installation, of the laws ‘and regulations “f bo coastal State applicable in ftcordance with this Convention to the exclusive fceanomie zone of the continental shelf, including ‘suc safety zones. 3. Argument using common sense analicy. Analogical ‘rguments may be used by staring with something that fveryone acepts. GER rt equity whieh renders a nmin representation ‘out on he esos mang and pean tom eninge samen ‘adapusaea ory ne led throm Sogo sen 6206873, in “The ncaaryebtger bane en made oR et Tama oe La fh Se) ARTICLE 11: Satin 2aca was Acompeteney Basel Approach Example: ‘A person might argue that death penalty must be restored beeause the body of society is just ike the body of ‘tpervon. Ifa man has severe tooth ache the logical way {stocextract the tooth, A heinous criminal i just like the ‘bad tooth b. Counter-analogical reasoning Coster onalgical reasoning is the opposite of analogical reasoning. While the later concludes by pointing out the similarities, counter-analogical reasoning concludes by pointing out relevant ‘iffrencee between the case and the client's fats. Counter analogical reasoning is usually used to Aicbunk or destroy the other partys prior use of ‘analogical reasoning, by stating that the case cited ‘and the client’ situation are actually different, th fo common conclision ean be inferred from’ born situations Example ‘The opponent might use counter-analozical reasoning by saying teat in the Mereado v. Espiritu ase, the minor’ representation misled the other party for after =Il, the minors had passed the age Of puberty and truly Ieoked like adults, While in ‘the other case, even if Mario, the seller, ied about his age there ia x2 wav the buyer could be misled because tne atario is a baby-faced sixteen year ol "That the seller has not passed the age of puberty, ‘and neither does he look like an adult. Thus, there ‘are no factual smilies in bth eases. {In the tooth-extraction case as an analogy why death sentence should be imposed, the opposing party who is against death penaliy mizit reason ‘ing counter analogy by saying satrically that if “my tooth aches, Tay have it pulled, such that if amy head aches, I may have it eu.” This is another ‘way ofteling Ut there are not enough similartiex ‘between tooth ‘extraction and death penalty to ‘warrant a conciison. curren a” PERSUASIVE ©, Policy-based reasoning Policy-based reasoning reaches a conclusion by connecting the fats of the case to the state's existing policy, Les what would be “best” for the society at larg, Publ policy is "recognized or established by the State in determining what acts are unlawful as (they are] ‘deemed injurious tothe public or contrary tothe public food” Thus, an agreement ia agaitst public pliy if it ‘injurious to the interests of the public, contravenes ome established interest of society, vilates some publi ‘late, an against good moral, tends to interfere with the ‘Nabis welfare or safety orf itis at war wit te interests Sraociety an is in conflict withthe morals ofthe time." Bxample: ‘Mario should aot be bound by the contract. Young poop!s whose minds and morals are not yet full formed Thould not suffer from the harmful consequences of those feta which they themselves could not ally eansent to. He ‘nol yet mature enough to consider the fll eonsequences ‘this decisions He deserves tobe protected, not punished. 1D, Narrative reasoning ‘Norrutive reasoning the conclusion by telling a story that shows the coatext, description and perspective {hat appeals to commonly-held ideas of justice, merey or fairness. Example: [Narrative where there is possibility of unue influence: ‘Mario should no be Bound by the contract the signed because Joey, the ear-deaer for 25 ‘years, prestured Mario, discouraged him from Zalling his parent task for advice and telling fhm that another buye= was looking atthe car fat that very moment. Jocy lowered his voice, Said: “Tl tll you what TU do “TU give you a Beret ot Daas 08 Jone 7187 Sapte Gambon 86 Paleo wen A conpeteny Band Approach ‘bonus of PS,000 on top of your selling price, if yo will allow me to facilitate the sale of your ‘arto the buyer. This bonus is secret between "Bes da la tion, apn tnd Bana, 1808S Bayar, egal Writing: Poe, Analyt and Ora CHAPTER V FALLACY “A person should refrain from all those things that take him. “wards fallaey, misery, ignorance and degradation.” = Atharva Veda quote Purposes ‘To recognize the different clases of formal and informal Jes. fo avo using fallacies in one's documents and pleadings. CONCEPT Fallacy is an error in roasoning. A lawyer spends a lot of time arguing and reasoneg for hs client, Thus, iis vital that the knows the pricipesof sound reasoning to avoid fallacies. He ‘must also be able to spot fallacy in others. Errors in reasoning {Keepo us from arriving at the truth. One's thinking is slanted and displace, Worte, he would not know it 1¢ takes skill to ‘wade through layers of arguments and pinpoint fallacies. Av ‘analytical mind is one of truth’ allies, and falsehood’ fees MAIN TYPES Fallacy may be: ‘A. Formal fallacy is an invalid argument, an erroneous inference. Its a error in deductive reasoning where the conclusion doesnot necessarily fllow from the premises. 1B, Informat fallacy cz invctive fllary 's an error in reasoning ina form which doesnot follow the traditional formal structures of loge.aca warn compen) Based Apr IL. DEDUCTION ‘Deduction isto reason from general principles (or truth) to particular instances of that truth, Example: ‘Allcats are mortal. (anajor premise) ‘Srila isa cat. (minor premise) ‘Therefore, Smila i mortal. (conclusion) Fora deductive argument tobe valid itmust be absolutely ‘established that both major end minor premises ae rue. Ifthe premises are true, the conclusion is valid. If Sila is a eat, ‘hen itis mortal, But if Srila ia not a eat, but a eel phone brand (making the statement “Smila is a cat” false), the. the ‘onelusion is invalid, Ill members ofthe gars participated in the mauling” 1and“Pinoisa member ofthe gang,” aretruc, then theconclusion "Pino is gulty of masing” is true. IV. DEDUCTIVE FALLACY ‘Otherwice called “formal” or “logical” fallacy, deductive fallacy presents an error in deductive reasoning, in that the ‘oxelusion arrived at is logically awed or absurd. There are Several types of deductive fallacy. The three mai types are Aigcussed below: the fallacy of tho ict major, the fallacy of the ils minor andthe fallacy of tne undistributed mile A. Fallacy of the ilieit major ‘This fallacy happe.a when the major term (predicate ‘of he major premise it “particular” (or “nc distributed”) in the major term, but is “universal” distributed" in the conclusion, A simple way to understand this fallacy is: ‘Some students sf that schoo! drink alebol therefore, all. student in that achool drink alcohol some students” is particular in the premise but universal in the conclusion). ‘This is fallacious because no universal conclusion ean. be inferred from a partieslar premise. Otherwise, one Decomes guilty of hasty generalization. cunrreny Ps Examples: AAI Bicolanos are Filipinos, (True. Here, “Bicolanos” is ‘universal but “Filipinas” are parieuar. The reason is while “all” Bcolanas are Pilipinos ‘nly some Filipinos are Beolanos. Thus “Filipino” which is the “major term” cused in a "particular mods) Beslanos are ‘ot Cebuanos. (true. Both “Bicolano” and Cebuano” are universal. Tis premise may be restated aa "No Bleolano is Cebuano or, *No Cebuano is Bicolano") ‘Therefore, Cebuano are not ilipines. (The conclusion is false. The reason it the Fallacy of the Mit Major, which made the major term (which ‘was “particular” in the snajor promise, eg, Filipinys) as “universal” in the conclusion “Not Filipinos” are universal bocause it may be restated a8 "No Cebuano is Filipino” oF tr conversely: No Filipino is Cebuano." The fonclusion making the major term universal (eg, Filipino) is fallacious, All Catholics are Christians. Catholics are not Protestants, ‘Therefore, Protestants are not Christians. (The fallacy is belfexplanatory, since Protestants are like ‘wise Christians, “Christians” ie partieular (undistributed) in the major promise but tuniversa! (distributed) in the conclusion. ‘Thus, the fallacy.) UP law students are excellent students San Beda students are not UP students, ‘Therefore, San Beda students are not exellent students (Obviously a fallacy. Many times, San Beda students had exccled.) Fallacy of the Ilicit Minor Fallacy of illicit minor happens when the minor ‘term (the predicae in the minor premise) is particular_Acompetney Based Approach (or undistributed) in the minor premise but bocomes ‘universal (or distributed) in the eanclusion. ‘The basis (minor term) being particular, cannot sustain a universal canclusion, hence the fallacy. Examples: All lawyers are bar passers. A lawyers are professionals. (Here, “professional,” the ‘minor term is partcular or mndistributed ‘Therefore, all professionals are bar passers, (Inthe con- clusion, “professional” is universal ‘A universal conelusion was arrived at from a particular ‘premise. This isa fallacy since nt al profes- sionals are bar passers) ‘The fallacy is more egregious inthe following: All criminals deserve tobe punished. All eriminals deserve another chance. ‘Therefore, all f those deserving another chance, deserve tobe punished. Fallacy of the undistributed middle Fallacy ofthe undistributed middle ooeurs wines the middle term (tho term thet appears in both major and minor premite) remrine particctar (undistributed) in both premices. Bxemplas All criminals have tattoos, online has a tattoo, ‘Therefore, Jonlino js a criminal (This isa fallacy since ‘ot all persons with tattooa are criminals. Tatoo in bth major and minor premise is particular, thus it eannet be uni {he conlsion that just erase Jolin has ‘tattoo ho is necessarily a criminal Allcommunists are atheists. cuarmeny a Lusino ia an atheist “Therefore, Lusino is a communist. INFORMAL FALLACY Informal fallacy is an error in reasoning occuring within non-traditional forms of inference, Informal fallacies are also known as semiformal,quasi-formal or inductive fallacies |. TYPES OF INFORMAL FALLACY ‘The flo 1. Ad Hominem — from Latin “argument fo the man,” is fan argument reiecting @ person's views by attacking or Abusing his personality, character, motive, intentions, ‘qualifieatisns te, as opposed ta providing evidence why the views are incorrect! ist of common inf: fllaies: example: What Lolio testified in court should nat be ‘elieved. Aer all, e sa known communist sympathizer. ‘The form followed by argumentum od hominem is usually: Mr. A makes a claim or assertion, ‘Mr, B attacks onthe person of Mi . "Therefore, Mr A's elaim or assertion i alse. ‘This is feacious boeause the person may (or may not) have @ hearing on the truth of his assertions. The truth of Mr. A's assortion should be subjected to tests ther than a mere attack on the personality, character or ‘motivation of Mr. A, the claimant, 2. Ad Hominem Tu Quoque ~ from Latin “you oo," argues ‘that a person's claim ie false because itis inconsistent ‘with what that person's earlier statement or action. Example: Antonina teaches the message of love and peace. Yet she does not practice it. T have seen her berate her studente, RE Ran, Deo of Php, Barnes and Noble Boks, 1981.Te ‘compte Based Apron ‘Bronne's pro-divoree stance should be rejected. After all, she was an anti-divoree activist just a year ago. ‘This is fallacious because Evonne may have changed {inthe meantime.Thevalidity ofthe laim should be tested by a eriteria other than the claimant’ view or character. Appeal to Authority —happensin any ofthe two instances: '8) when ane appeals to authority (or custom, tradition, inst.tution or book) in order to gain acceptance of point tinue: oF 1b) when one appeals to the feelings of reverence or respect ve have of those in authority oF those who fre fan ‘Apps! to authority is known by other names: elzey of argumentum ad vereeundiam, argument authority, ‘argument to veneration, fallacious appeal to authority, misuse of authority, ielevant authority, questionable tauthority, inappropriate authority. Examples: “believe that the statement ‘you cannot le rmorality’is tre, beeacse President Blaenhower sald it” ruse Maskinal astringent because Ms. V, my favorite movi tar, uses it Jose: believe, just like there inthe U.S, that abortion jgal and moral within the first six months. A person must have the right to decide what to do ‘vith her body. Zeny: bog to disagree. Our universitystop lady scienco professor holds that aborton is immoral Jose: Why? Ie she an expert on morali Zeny. She's an expert on marine worms. Appeal to Belief ~ algo known as appeat to popularity, {is the argument that becnuse many people believe in a lim, that claim must be true. Its fallacious in that just or law? because many (or most) people hold a belief to be true, ‘uch believers are nat an evidence that the claim put orward is indeed true. Example: During Galileo's time, most believed the ‘sun révalved around the earth, And just because the ‘majority believed in it, doesnot mean itis true. Appeal to Conamon Practice — argues that if most people ‘do‘an act, it must be morally correct. Tiss fallacious in ‘hat just beestase something ie commonly practiced, this does not necessarily mske an act mora. ‘The belief is fallacious in that numerical majority alone cannot be a gauge for an act, moray. For Instance: if an islnd has 10 people, of whieh 6 are non- thieves while 4 are thieves. In this setup, to be a non- thief fe “moral” because they are the majority. n case aa epidemic hits the sland and hills of the non thieves, the {thieves would now become the majority. Clearly their ‘number alone would not make thievery moral. Examples: {paid the oficial cause anyway most people do it nowadays. Since everybody eae accepts money from politicians in elotions, Thave no choice but to accept. Appeal to Consequences ofa Blief — argues that a belief ue fi leads to desirable consequences. Conversely, 1 bie is false if i lead to undesirable consequences. "This fallacy is otherwise known asthe argumentuam ad ‘consequentiam or argument tothe eonsoquences, “The argument ie fallacious i thatthe consequences of belief could not be a determinant as to the truth oF falsity of the belie. Example If my belief that Jose Rital “is alive” makes me happy, this belief in no way makes it true that Jose Rizal inalive, [My belief that very time I wear a rod shirt I will pass an examination, has no bearing en my actuallyACampetncy Band Approach passing the examination. It may be thst I prepared for the exam, Appeal to Emotion — deliberately generates feelings in ‘people so that they will actin a certain way. Appeal to ‘emotion assumes that trth comes with good flings, and falsehood with bad feling eg. ft fools bad it must bo ‘wrong, This becomes fallacious when a person bases his Conclusions on emotion rather than logic Commonly used by politicians, cult leaders and advertisers, the fallacy thad become a tool for manipulation to control bshavior. Example Our sofa with electronic massager will soothe your stress everytime you watch TV. Thus, “Sofa Cum “Massage” is what you and bus family needs hese days. ‘the Ponton people inthe mountains of Patalangan are raiding our wash usec. They are training children to ‘become armies. How bad ean you Tec! reading the evs each day. IFyou vote forme, Twill make reading the news ‘pleasure. You will read how I would eradicate these poopie. Appeal to Fear — also called argumentum ad baculum, fargues that a belief is true, or at least acted on, not Ibeause there is a “rational reason” to believe (evidence) It is tru, but because of external factors such as fear, hharm or threat, Here, a conclusion is formed an the basis ‘of fear and not evidence. Example: Ityou do not pass on this letter to sx ofyour frien’, ‘an unforeseen calamity will befall upon you. 1 need to have my application acted upon by ‘Wednesday. After that, Iwill have to consult my unele ‘who works is Malacaticay. Talking back against your father might diminish your allowance! Appeal to Flattery — argues that there are persons who frve at conclusions, or act iy a certain way, when fatered. The argument i fallacious in that the basis of 10. u. 2 cursny a ‘one's conclusions isnot “rational eason" or evidence but ‘atery Example: ‘You look younger today, and your face is smoother. By the way, did you receive ou lier of solicitation? ‘Your mind does not deser obo in this small town, Dt in the Hague, How far are you now in editing my thesis? Appeal to Novelty — argues that a thing or idea is ‘ascessarily beter simply because itis new. One is nove, therefore good. The argument is fallacious in that the basis of one's conclusion isthe thing's newness, not its merit. Exams ‘This book is the latest, therefore you must buy i Tis useful for your teaching as itis the latest edition ‘whereas the former edition was writen thre years ago. Appeal to Pity ~ sleo called argumentum ad misricor diam, argues that some persons conclude or make deci sions solely on pity, and not on evidence. The argumencis Bxample: Sin I rcivd a grate of 6, shere something we ean do? Tam graduating and my ailing motbe ‘ving asa leundryworan, My father has asthma and ‘eannot do his usual chores. Appeal to Popsarity — argues that a claim or idea is ‘nue simply beeatse more people are inclined to accept ‘such claim or idea. The argument is fallacious in that tho ‘base of one's conclusion or decision is nt evidence but an ‘external factor which s widespread acceptance of belief. Bxample: ‘To my beloved Filipinas: Im running. ARer all, 1 received a million signatures that urged me to run for ‘fice. Tt isthe wil of the province.13. 1, Laat warm ACompeteney Bae Apc When the law on violenee against women and children was passed, {questioned what about the rights of battered husbands? But then I realized moet lawyers and professionals did not objet to the law. Tn thinking, ‘maybe I was wrong. Appeal to Ridicule — argues Una ridicule, or the idea of Deing laughed at, may eve as basis for one's decisions. ‘The argument is fallacious in that ridicule and not reason ‘or evidence become the support why one thinks or ets in ‘certain war Example: You should not wear those pants, Only people plucked from the 0's wear then, ‘Your argument, just like your shirt, reminds me of 2 restaurant table cover Appeat to Spite —arguesthat spite, orhate,may substitute ‘reason incoming up toa eonclusion. It fallacious in that 1 purely subjective emotion ~ spite — takes precedence ‘over objective evidence in coming up with a decision. Example: ‘A: “Is my cousin Reygie's wedding tomorrow. Im Bi: "Remember when we were kids how Reggie accused ‘you of stealing his cards?” ‘A: *Asumater offact, do. will no! attend his wedding then" Appeal to Tradition — is the opposite of appeal to novelty. ‘Appeal to ‘radition argues chat the idea ia necessarily better simply because itis older, more “tested” and “trie!” because it had boon sed years over, It is fallacious Ieeause age per se does nat necessarily qualify an idea to be beter. Oder is not necessarily better Example: We have to go to the cemetery on November 2, not ‘Afics all, people inthis town had been doing that since as long a8 Tean remesaber. Ofcourse ar. versaral court system i etter than ‘some inquisitorial aystem they have in France. We have always used the adversarial systam since the Spanish era ‘and nobody questioned its efcacy. 16) Bandwagon — argues that rejection (or a threat of rejection) may influence one's decisions or conclusions. Its fallacious in that solid or objective evidence takes a backseat over peer-pressure ‘The bandwayon fallacy, als called argumentum ad ‘numerum, believes in: “f many uiove 50, ii 0." Example ‘Ac “If cam help it go for fish and vegetables.” 1: “Why that’s fod for oldies” “You better shape up, or else people will think you are undisciplined” 17. Begging the Question — ie a fallacy where the conclusion ‘is assumed in the premises. Also ealledpelitioprincip't Castuming the initial point), is fallacious in that the conclusion to be proved is assumed implicitly or explicitly inthe premise, Seldom is anyone g2iug to simply place ‘the conclusion word-for-word into the premises. ‘According to Paul Herrick “eeldom is anyone going to simply plnee the conclusian word-for-word into the premises. Rather, an anguer might use phraseology that ‘oneeals the fact that the conclusion ia masquerading a premise. The conclusion is rephrased to look differents ‘then placed in the premises” lover of music, Afterall, she plays the piano i a otra egal tem, he eur ainly a in date: Ing te tf ese, a secre ie oening or saris Ti opened the sytem voerta rae te curt thao spar eee ae “itech, Pau. The Many Werldof Logie Ord Uninet Pret 20,“ LEGAL. wRNG A conmpetansy Based Approach ‘Ynu better follow what Tsay because I tld you so ‘Tm your father, and you beter follow me. He is mad right now, because I could see Una hei 18, Biased Sample — i committed when a conclusions taken from a sarple, which in turn was taken from a clearly bated source Example: Ione wants to find wut whether Filipinos are fond ‘of cating vegetables would havea biased conclusion ifthe ‘sample was taken during a meeting of vegetarians and animal rights activist 19. Burden of Proof ~ alto called angumentum ad ignoran- ‘iam, it argues that something is true because no one has proved it to be false, ar arguing that something is false Decause no one has proved it to he true. Te argument Fw Wi of sampler re we ai Ma. Random Sample: Thi ample that then noch sway cat nhing ot shane eters sich me ‘Selany mon wel wen dang insted popeationn, For cramp « be ‘ets nome fen inne how sb tens wh hdc x pier al ‘ould bem gn to take a satidsigi ngs ‘er determiting the stat hse eee sa as eah stat th population neatly repented. Tne Lape Same ‘le: Tie pe seamen aken by ting atte rar spl od tes {aking wat oe moe sarpl wih sian laps of ne etme hem Aer ‘he to pln ar the, an bo compared er Change Teton sag ‘king ry important en making pedo. A pedcon tases oe ‘Soul ily obo Hasty Coverlet enn heme ly tn oo ‘alee pt ane opt oa al ote ‘inte wi tastes Se ‘rom gsr ‘ike anarefacewaondsmpeiLast Vid November 34 008 20, an is fallacious in that lack of evidence on, say, side “A” is ‘taken as proof or evidence that side "Bis true Example: Heaven exists, After all, no one has proved it does not exist. Heaven doesnot exist. Aer ll, noone has proved it Tm innocent, not a robber or thief No one has presented evidence thet T stole or robbed, Circumstantial Ad Hominem — attacks any person's claim by eaying itis done out ofselfinteret. The oy u- ‘ment i fallacious in that instead of hearing reason and tabjective evidence, the arguer assumes that the other yar- ty is motivated by his personal interests, such as promot Ing his busines, religion, honor or paliticalafiliation. A person's background may’ not have a bearing on the tris Walue of what he is saying. sample: OF course Martina is against crceity to animals Afterall she isa vegetarian, and maintains a lucrative pet shor business. "The joven ix dond-et against granting annulments corimposing death He is w lay minister, ands expected to old such views Composition — ‘The fallacy of composition argues that what is art ia likewiee true of the “hole itself, The argument is fallacious because i cannot be inferred simply Uhat just beeause a part (r parts) ha 4 lstinet characteristi, the whole will have the same ‘hatacterstcs. Bxample: “Sal” is Spanish for salt. “Pan de sal” has salt. ‘Therefore, pan de sal is salty Pure oxygen damages the kidneys. Water has cxygen. Therefore water is bad forthe kidneys. ‘This “dream team’ consists of the country’s top Acbaters: There ino way itean be beaten.™ {LEGAL WRITING congeners Approach Confusing Cause and Bifect — alo called the fllacy of ‘questionable cause, argues that just because the events ‘cour together, one must be the cause of the other. The ‘trgumentiafllacious in that there is not nocessarily any ‘aval link between two things just because they ocrur ‘gether. See Ignoring @ Common Ces Example: Alecholics are often very shy poople. Shyness is ‘therefore the eause of alcoholism, ‘Atabout the time Rodante divorced his wife, he kept seeing a prychiatrist. Fm sure the peychiatrist influenced ‘Rodante’s decison to separate. Division ~The fallacy of vision a=gues that what is true ‘ofthe whole is necessarily true oft parts The argument fs fallacious in that what is true generaTly isnot always true particularly. Bxample Forbes subdivision is peopled by extremely wealthy people. If Marito lives there, he must therefore be ‘extremely wealty “Bow Scouts” e 8 movement composed of young men ‘and boys. X being a member must also be a Young man. ‘or boy. (This is fallacious as facts show that girls may Lo members of the Boy Seouts.) False Dilerma — also called black and white fallacy, hhappens when one argues that there could anly bo two thotte forthe problem, or when one attempts to make the middle print between two ex:remes as one of the fextremes, The argument ie fallacious in that there may bbe more than two cholees involved in the problem, or ‘the middle point may act be the other e=trome of the continuum Bxample: ther hei a communist or secretly religious 1am sorry you are homosexual. You would have ‘been adocent person. ‘You are no longer visting me It seems you do nat loveme. Either you go to church, or Iwill think you are an atheist, 25.” Gambler's Fallacy — also called Monte Carlo fallacy, ‘argues that since, for example, a penny’ Aas fallen tals tan times in a row then it will fll heads the eleventh time, or fan airline has not had an aceident for te past ten year, iin toon due for an accident. The argument is fallacious in that it rejects the assumption in probability theory that each evene is independent of its previous happening Bxample: (Medical joke) Tm sure you will survive. Medical literature says that 105 survive im this ness. So far have 9 patients and they did not survive, You are my 10th, so you will survive. 26, Genetic Fallacy — also called reductive or nothing but fallacy, argues that the origin of thing is identical with ‘that ftom whieh it originate, The argument is fllacios Jn that the product or consequence of a thing is not necessarily the same as that from which it eame from, Example: He sa criminals son. He must have crimi or worse is nothing but a criminal himsel. People from that section of the «ity are notorious pick pockets and drug adiete Ths, beware of him. Her mother won Mise Philippines. She will, to, someday, 2, Guilt by Ansociation — also called the bad company fallacy or ompany that you hee fallacy, argues that an. ‘dea should not be accopted simply beeeuse among those ‘who accept the idea are people one does not like. The ‘trgument ia fallacious in Uht the truth of an idea is not ‘determined by the charactor of those who accept. genes, Ger tn, Doar of Php, Barn Noble Boss, 181.28 ect wernsc A comptengy Bs Apr Example: 1 don’t like that movie. It is the favorite of my Irusband’s ex-girlfriend, 1 fel uncomfortable explaining biblical verses to you in the park When T was Younger, religious debaters ‘gli one Bible vere in hip nd ream Hasty Generalization — also called fallacy of hasty induetion, ooeurs whea a general statement is asserted ‘which is based om limited information, inadequate {evidence or unrepresentative sampling? The argument is fallacious beeause not enough support is given to base the ‘conclusion on, In a court setting, not enough evidence is ‘offered to prt a decision. Example ‘Aforeign actress checked in hotel in Manila found cockroaches, In the press interview, she concluded that ‘the Philipines e full of cockroaches |A State vice president was in an elementary school ‘and wanted to help a 12 year-old boy spell “potato.” When the vice president wrote "potatoo,” he got rounding from. the media who thereafter concluded, hased on a single boo-boo, thatthe vie-presint i « dummy in Ignoring a Common Cause ~ also called the fallacy of (questionable cause, happens when a conclusion is made {hat A causes B simply because A and B are regularly ‘associated or connected. The argument is fallacious ‘that it ignores te possibility tha: there might be a factor that estused both A and B. That A need not be the cause of B. ‘Soe Confusing Cause and Efe. Example: “Jerry noticed that overytime his bestfriend Marvin goes with him tothe golf course, he wins, Jerry attributed his Tuck to Marvin "Te tor names of the lay a) Play of nun Staite, ‘Pane onaint Spl Leaping a Consus tay Edin a1 curren PALACE ‘Goke) Julia's usband loves to drink eee with her. ‘After his death, Julin would suffer headaches everytime ‘the drinks coffee, She attributed this to her missing her husband, having associated coffe with him. In fact, it twas the spoon which Julia regularly forgets to take out {rom the cup that causes her migraine. Middle Ground — algo called the fallacy of moderation ‘or the golden mean fallacy, it happens when the arguer fassumes that the mean (or middle position) between {wo extreme positions must be the correct zosition. The ‘argument i fallacious beeause it doesnot fll thatthe mean is always the correct postion, Beam Splitting the middls ie a common strategy in who receive the most media attention are representatives of the group to which they belong. The argument fallacious {in that those wn receive the most media attention are ‘vt woessarily representative of the whole. This fallacy to hasty generalization, Wsofen in the news that this and that celebrity had divorced and married several times. I guess actors and. actresses are naturally promiscuous. Romblon_ people are often featured. winning in ‘track and field events. Indeed, Romblon people are great ‘runners. Maybe it sin their genes. ‘Straw man — The straw man fallacy presents an ‘opponent's positon in a weak or absurd way so that it ‘an easily be refuted. The argument i fallacious in that ‘one deliberately misrepresents or does not include the ‘strong points in the other's position thereby giving the ‘impression that the angue's points are strong. 2 Bxaple: ‘Supporter of the new reproductive bill encourage contraceptives. Contraceptives cause abortion, and abar- tion is killing. Thus, we must oppose the bill (This is fallacious in that not all contraceptives cause abortion). ‘Two Wrongs Make @ Right — argues that ifthe other party di illegal things, then itis okay for one to make fn legal activity. The argument i fallacious in that an ‘unlawtl act dane by another has no bearing on whatever ‘ct one ehootss for onesel. Example: -Bribing officials to win cass is okay. ARer all, Mr A, a farsous lawyer, does it have ro qualms receiving election money from candidates. Bveryone's doing it; and itis nt the candi- dates’ money to start with,CHAPTER VI ‘THE ACTIVE VOICE “The habitual uee ofthe active voice, however, makes for forcible twriing. Ths is true not only in narrative principally concerned ‘with ction, hut ortingof any kind. Many a tame sentence ‘of desrintion or exposition can be made :cety and emphatic ty subattuting a transitive inthe active voice fr some such ‘perfunclory espresion as there ior could be heard.” — Wiliam Strunk and E.B. White, The Elements of Style Purpose: ‘Write in the active voice as a rule. Avoid, or at least minimize the use of, nominalization, participle, auxiliaries cr conditionals Prefer positive over negative forms. 1. ACTIVE VOICE A. Concept ‘An “active voice” engages the reader with movement ‘and action, "he sentences sound and fed like the subject produces the ation. In passive voice, the subject becomes ‘feted upon.” In the ‘active voice’ the subject of the sentence does the acting in a passive voice the subject of the original sentence it being acted upon. Examples: 1. Active sentences. The subjects produce the action. Passive: “The Sound of Music’ was soon by Mario.” Active: “Mario saw the ‘Sound of Music” [po ion nk Wit, he eof Sp he Leman ‘Tne ACTIVE VOICE, Passive: A sudden interest in paychology dawned ‘Active: got interested in poychology Pagsioe: "The ca is driven by David ‘Active: David drives the car. 2. Active description. Here, the verbs activate the des- ‘ption. Passive: ‘The room was filed by his anger. Active: His anger filed the room. Passive: He talked nervously. Active: We stuttered ‘Active and passive voiees may be expressed in ‘various tenses Passive ‘Active Ihe car waa driven by David. [David drove the ear. [the ear is driven by David. _ | David drives the ear [the car willbe driven by Davi. | David will drive the car. ‘The car has been driven by|David has driven the car? David "The ear fad been driven by|David had driven the ear? [David The car will have been driven David will have driven by David. lear B. The Active Voice ix more foreefal and concise ‘Although the two mean Uhe same, the ative voice is more direct and vigorous; the passive voice ia longer and ese forceful. Three words, “was driven by," is needed to “Precip ene expreing an ction cmp bythe rt Ham he Sha han ate “Sp pert ine ning am con cmp pro athe exarencs seme at fst no vet Heal: She hd ered blr ou A ella Here j "Rar pf tens expres ston coped fie far ret ot ection Ben Ss wlan red by tere‘The regular use of the active voice makes fr a more forceful writing, not only in sentences where the actor does the obvious “doing” (ce, the subjec: isa person) but likewise in narrative descriptions involving non-human, subject. Bzampless Passive Hetioe [There were great number of dead|Dead Teaves covered the| leaves Ising on the round ind, [At dawn the crowing of « rooser|The cock's crow came] could be hesrd, withthe dawn, ailing health competed him to leave college [She soon. repented her sorry that she had said what she| words, In ©. The Active is more definite ‘Tho active voice is more categorical, the identity of ‘thu ator being always present,e.,-David had driven the «ur” or "David immediately recived the package.” Passive Voice on the other hand has more chances of becoming ambiguous; the writer can easily hide the identify of the Actor, «4, "The car had been driven” or "The package was ‘rmediately received By whom? In this patent ieense provision: “All improvemsnts of the patented inven tion that are mae hereafter shall proraptly be disclosed, and filure to do 0 shall be deemed ‘a material Breach ofthis license agreement.” 1 may be asked: Who must disclose improvements, and to whom Must the lensing office disclose any ‘MEACTIVE VOICE {improvements made on the patented invention to the ‘original inventor? Or must the inventor disclose fature Improvements tothe office? Or is Ube obligation mutual ‘onthe lieensing office and inventor? ‘The ambiguity as to who is obliged to disclose to whom creates a fertile ground fora cour aso to ensue, "The use ofthe active voice would have prevented the am- biguity from happening, .,The'patent holder is obliged to disclose within 60 days ail improvements ho makes on his invention appreciated” (by whom?), To verite "Your goodness is ‘appreciated hy me” becomes tedious. Focus on the Actor, the Action and the Object of the action Gif any) Inorder to develop the habit usingthe active vice, se the following guide question: "Who i doing what and tovwhom?” First state the actor, then the action using the strongest word that fits what you want toway. Las, state ‘the object to whom the action is directed Example Passive: nterlneutory orders may sil be meaified by the courts Active: Courts ean modify its interlocutory orders. Passies: There were no authorities cited by the court initsjudgznent. Active: The cvurt ited no authorities in its judgment. Passive: Itwas sugsested by Engr. Peres that the sub- tission of «new bid by the evatractor be re- quested by Julia Active: Mr. Perez suggested that Julia ask the con tractor to submit a new bid, [Nota bene: Watch out for statements beginning with: “here infare/washwere” or “it i/was” These dae wen ce ROME ee are usally. passive or else wordy. Again, "See Md C.Wyaieh, Plain lich or Layers 30 (Craton endemic focus on the “atorsetion-abjee™ rule to make Pres Se 108 your sentences brief‘sme Raed Aepranch 1s hoped that restated inactive form: “We hope that you were not inconvenienced by the may thus be IL USES OF THE PASSIVE VOICE 1. When the thing done is meve important to know than the doer Example: ‘The subpoena was served on January 4, 2007. “My mother was bitten by a dog. ‘My grandmother wass hur that bus collision. 2. When the cctor is unknown the passive is the normal construction, Example: XY pawnshop was robbed last week. "The plants were cut lastnight 3. Foremphasis, the passive used at the end ofa sentence, Bxample ‘As Manny Reyes walked past the door, he was ‘nabbed by journalist TIL MINIMIZE NOMINALIZATIONS [Nominalisctons are veroe used as nouns. They are called “buried verb,” that is, base verbs converted to nouns that ‘not only hide the action but make one's writing abstract and verbose, Example: ‘Nominal Verb Tin appreciation of ates [makes a donation [Donates a [provides euppszt supports Us in conspiracy [Conspiring [rey are)in agreement [(They) are [im aceordance (with our rales) (to our rales) In proximity (with eachother) [proximate (to each other) (afraid) ofthe exposure afraid) of exposing, [dam) in reat received (dis actin violation af tho rules | (is uct) vilatos Ohe rules ‘cThey) give contributions [(They)gontribute puts up an investment. vest make assumptions assume [draw conclusions ICouclude lake action, ‘A way to detect norinalzation is to recognize that they are verbs couched in noun forms, typically ending in “men,” “tion,” “anes,” “al” “ary,” “ancy. “ity” of “sue.” The vigor that verbs used to convey (eg, appreciates) is replaced by an abstraction (eg, in appreciation), resulting to m slower and ‘weaker proce Habitual use of nominalizations attracts surplus ‘ua unnecessary words For example, why write: “Please make a summary why you are interposing an objection tothe plaintiffs motion.” when you can state: * “Please summarin. why you object to Uhe plaintiffs or beter ti “Please summarize your objections tothe plaintiffs motion.” ‘The statement: “Our client hopes that you are considering the possi- bility of reconsidering your decision.” may bo restated: “Our client hopes that you will reconsider your Aocison.” or better still: "Our client hopes you will change your decision.”