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research locates the law

(finding the applicable laws related
to the issue)
Legal analysis determines how that
law applies
Legal writing assembles and
integrates the results (of legal
research and analysis) into usable

Process/Outline of Legal

OF LAW (both statutory and case




can include


of Law + Legal Question + Key Facts

The three elements must be stated as one
statement in question form.
May start with a broad statement (only the
legal question) but a narrow or
comprehensive statement can follow after
some research have been conducted.
Must follow the 3 Cs:


laws: Constitution, International

Treaties, Statutes (RAs, Acts, CAs, BPs), PDs,
EOs, Implementing Rules and Regulations,
Supreme Court Rules, Ordinances
Case law: Supreme Court jurisprudence
precedent, conclusive or mandatory
Lower courts (CA, RTC, MTC, MCTC, MTCC,
Sandiganbayan, CTA, quasi-judicial bodies
not conclusive or mandatory but persuasive
NOTE: Cite only applicable provisions


the Rule of Law to the Key

Facts of the Case.
If statutory laws clearly govern the
key facts and no further interpretation
is needed just apply the law to the
key facts eg. elements required in the
law is matched with the key facts
If further interpretation of the law is
needed refer to applicable case law

Case Law Analysis


of case law to a legal

The analytical process to determine if
and how the decision in a court opinion
(case law) either governs or affects the
outcome of a clients case
Focus on how to determine if a single
issue, addressed in a court opinion is on
point and therefore, may affect or
govern an issue in a clients case


point describe a court opinion that

applies to a clients case. A case is on
point if the similarity between the key
facts and rule of law or legal principle of
the court opinion and those of the clients
case is sufficient for the court opinion to
giver or provide guidance to a later court
in deciding the outcome of the clients
case. On point and precedent may
be used interchangably


an earlier court decision on an

issue that governs or guides a subsequent court
in its determination of an identical or similar
issue based on identical or similar key facts.
Mandatory precedent precedent from a higher
court in a jurisdiction. If a court opinion is on
point, the doctrine of stare decisis mandates
that the lower courts in the jurisdiction follow it.
Persuasive precedent precedent that a court
may look to for guidance when reaching a
decision but is not bound to follow.


decisis a basic principle in the

case law system that requires a court to
follow a previous decision of that court
or a higher court in the jurisdiction when
the current decision involves issues and
key facts similar to those involved in the
previous decision. It requires that
similar cases be decided in the same
way, it mandates that cases that are
precedent should be followed.

Role of Precedent

prevents chaos in the court

decision making process. Doctrines
provide stability, predictability and
guidance for the courts and lawyers.
An individual can rely on a future
court to reach the same decision on
an issue in an earlier court when the
cases a sufficiently similar.

Determining if a Case is On


Are the Key Facts sufficiently similar for the

case to apply as precedent? The key facts of
the court opinion must be sufficiently similar to the
key facts of the clients case. If the facts are not
similar, the opinion will serve as precedent only if
the rule of law or legal principle is broad enough to
apply to other fact situations, including the clients.
Are the rules or principles of law sufficiently
similar for the case to apply as precedent?
The rule of law or legal principle applied in the
court opinion must be the same or sufficiently
similar to the rule of law or legal principle (statutory
and case law) that applies in the clients case.

Key Fact Variations




Minor differences in key facts case on point

- Some key facts are so insignificantly difference that
they clearly do not affect the use of a court decision
as precedent.
Major difference in key facts case not on point
Major difference in key facts case on point
- The opinion may still be on point, but the outcome
may be different. The legal principle applied by the
court may still apply in the clients case, although its
application may lead to a different result
Major difference in key facts case on point,
based on broad legal principle that applies to
different fact situations

Are Rules or Principles of

Law similar?


Same Rule or Principle key facts are

sufficiently similar and same rule of law is
involved, the case is on point.
Different Rule or Principle general rule: case is
not on point.
a. Legislative acts a court opinion
interpreting one legislative act may be used as
precedent for a clients case that involves the
application of a different legislative act when
there is similarity in language and function.

b. Case law or principle a court

opinion interpreting one case law
rule or principle may be used as
precedent for a clients case that
involves the application of a different
case law rule or principle when there
is similarity in language used and
function of the case law rules or

Key Points Checklist: Is a

case on point?

on the key facts and the rule of law or

legal principle of both the court opinion and
clients case
When there are differences between the key
facts of the court opinion and the clients case,
carefully determine whether the difference is
significant. Be aware, however, that different
key facts may lead to the application of an
entirely different law or principle despite other
key fact similarities. The rule of law or legal
principle, however, may be so broad that it
applies to many different fact situations.


identify the rule of law or legal

principle that applies in the court
opinion and in the clients case
When the rule of law applied in the court
opinion is different from the rule that
applies in the clients case, consider
using the court opinion as precedent
only when there is no authority
interpreting or applying the rule or
principle that applies in the clients case


authority from another jurisdiction

only when there is no authority from the
jurisdiction in which the clients case arose
If in doubt about whether a fact is a key fact,
continue your analysis until you are certain.
Follow your instincts. If an opinion does not
appear to be on point but your intuition tells
you it is on point, continue your analysis
until you are certain. If you never reach the
point of feeling certain, search elsewhere.


is the process of anticipating the

argument the opponent is likely to raise
in response to your analysis of an issue
the counterargument
It is the process of discovering and
considering the counterargument in a
legal position or argument. It involves
identification and objective evaluation of
the strengths and weaknesses of each
legal argument you intend to raise




Ethical duty to disclose legal authority

adverse to the position of the client that is
not disclosed by opposing counsel
Ethical duty to do a complete and
competent job, counteranalysis allows you
to anticipate arguments and prepare to
counter them
Counteranalysis aids in the proper
evaluation of the merites of the case and
can assist in selection of appropriate course
of action



It is important to locate and disclose

adverse authority to maintain credibility
with your supervisor. You may not be
considered reliable, and the credibility,
accuracy and thoroughness of your research
may be questioned.
When a legal brief is submitted to a court, if
you identify and address adverse authority
in the brief, you have an opportunity to
soften its impact by discrediting or
distinguising it.

Counteranalysis Approaches
(to legal position based on statute or enacted law)


The elements in the statute are not met

The statute is sufficiently broad to permit
a construction or application different
from that urged in the opposition
The statute has been misconstrued or
does not apply
The statute relied upon as a guide to
interpret another statute does not apply,
and therefore cannot be used as a guide
in interpreting the other statute.

The interpretation of the statute

urged by the opposition is
unconstitutional or violates against
another legislative act.
6. The statute relied on is

Counter-analysis approaches
(to a legal position based on case law)



Reliance on the court opinion is misplaced

because the key facts in the opinion and the
key facts of the clients case are different to
such a nature or degree that they render the
court opinion unusable as a precedent
Reliance on the court opinion is misplaced
because the rule of law or legal principle
applied in the court opinion does not apply
The court opinion is subject to an
interpretation different from that relied on in
support of a legal position

The rule or principle adopted in the opinion

relied on is not universally followed.
5. The opinion relied on presents several
possible solutions to the problem, and the one
urged by the position is not mandatory and is
not the best choice
6. The position relied on no longer represents
sound public policy and should not be followed
7. There are equally relevant cases that do not
support the position adopted in the case relied

Key Points Checklist:


weakness in an argument will not go away if

you ignore it. You can count on either the other
side or the court to bring it to light. It is much
better for you to raise the counterargument and
diffuse it
For every issue presented in a legal research
memorandum, consider how the other side is
likely to respond.
Put yourself in your opponents position. Assume
you are the opponent and consider all possible
counterarguments, no matter how ridiculous be


more strongly you believe in the

correctness of your analysis, the greater
the likelihood that you will miss or overlook
the counteranalysis to that analysis.
Beware: When you feel extremely
confident or sure, take extra precautions.
Overconfidence can seriously mislead you.
Do not let your emotions, preconceived
notions, or stubbornness interfere with an
objective counteranalysis of your position


analyzing court opinions, a

counteranalysis of the majority opinion may be
found in the dissenting opinion or other opinions
that criticize or distinguish the majority opinion
When conducting counteranalysis, always
consider each of the approaches listed in this
chapter. Remember, more that one approach
may apply, and approaches other than those
listed may be available
Even if you find a case on point, always research
thoroughly. Look for other laws or court opinions
that may also apply.


the issue and the main

argument or reason for the answer
Summary of the Analysis and
May include recommendations (if
done in an office memo for client to
decide if case should be pursued or
not, if done in a court memo/brief
in the form of prayer, persuades
court to act in favor of your client)

Thank you