LEGAL WRITING persuading others to accept our conclusions
Atty. Cynthia Gonzales and findings.
Professor
• Definition BONUS slide…
Legal Writing is the kind of writing As early as now, I want you to
used by lawyers, law professors, judges and practice thinking and answering logically.
other workers in the field of law to express An answering formula I can impart to you and
legal rights, obligations and opinions. this has helped me pass the bar exams..
• Importance
Legal Writing aims to communicate Think and answer in this way…
information in a manner that is logical, A – answer (yes or no followed by the
accurate and convincing, with the purpose of question e.g. No, the contention of the
proving something. defendant is wrong. )
L – Legal Basis (under the law, the
As distinguished from other discipline, Supreme Court has held that
NEWS aims to provide accurate information; (jurisprudence))
Other forms of writing serve to entertain or to A – analysis/application (in this
stimulate thought. case,/here,)
C – conclusion (Hence, defendant
You might think… cannot use self-defense to be exculpated of
That this subject is the least the crime charged).
important because it does not touch on
substantive law topics. • Definition and source of case law
Yet it is the most important subject Art. 8, NCC. Judicial decisions applying
because it is the most basic subject, that of or interpreting the laws or the Constitution
communication. shall form a part of the legal system of the
Additionally, bar candidates who Philippines.
have a strong writing skill have better • Doctrine of stare decisis
chances of passing the bar exams. (REVIEW A point of law already established
and WORK ON GRAMMAR. IT’S NEVER will, generally be followed by the same
TOO LATE) determining court and by all courts of lower
In the last bar subject of the Bar rank in subsequent cases where the same
Examinations, bar candidates will be asked issue is raised.
to draft a contract, a demand letter, complaint It binds courts to follow legal
etc. precedents set by previous decisions.
We lawyers exist to communicate It is grounded on the necessity for
well. securing certainty and stability of judicial
Our main product – which is doing decisions.
legal work for others is explaining issues “Stand by the decision and do not
well, recording facts faithfully, and disturb what is settled.”
Although the doctrine of stare decisis 1. Caption and Title
helps promote predictability and order in our Caption – Name of the Court , title of the
legal system, our system still must remain action, docket number)
flexible, and the law must be capable of Title – Names of all parties and their
change. (abandonment of doctrine must be respective participation
based on strong and compelling reason.) 2. Introduction (Optional)
3. Statement of the Case (a. civil case; b.
Object of the doctrine criminal case)
1. It encourages even-handed Civil Cases – ejectment, collection, quieting
treatment of those who come before the of title etc.
courts; Criminal cases – specific charge, accusatory
2. It saves time and energy because portion of the information/complaint
the courts do not have to hear the same Plea of the accused - Sometimes the conduct
arguments on a point over and over again; of a preliminary investigation
3. By contributing to the predictability 4. Findings of Facts -The flesh and blood of
of the law, it facilitates planning of private the case:
parties and encuages settlement of disputes; Methods of reporting facts are:
4. It provides a certain degree of a. Objective or reportorial method
protection from capricious or arbitrary judicial b. Synthesis method
rulings; and c. Subjective method
5. It helps maintain public faith in the d. Combination of the objective and
Judiciary. subjective method
5. Statement of the Issues
Test 6. Court’s Ruling
• Ratio Decidendi 7. Dispositive Portion or Disposition
The principles of law formulated by a. In criminal cases, the disposition should
the Court for the purpose of deciding the include:
problem before him. 1. finding of innocense or guilt;
2. specific crime;
• Concept of obiter dicta 3. Penalty (with special attention to
Observations made by the court but ISLaw)
are not essential for the decision reached. 4. Participation of the Accused
An opinion not necessary to a judgment and 5. Qualifying, Mitigating and
is an observation as to the law made by the Aggravating Circumstance
court in the course of a case, but not 6. Civil Liabilities, Cost
necessary to its decision and therefore of no B. In Civil Cases:
binding effect 1. Whether complaint or petition is
It is the ratio decidendi which has the granted or denied;
binding effect and the precedent value. 2. Specific relief granted;
3. Costs.
Parts of a trial court decision
comprehensive term, having no fixed legal
The disposition must be complete. Tests of meaning.
completeness: “The adjudication or settlement of a
The parties know their rights and obligations; controversy.” (Philippine American Life
The parties should know how to Insurance vs. SSS, 20 SCRA 163 (1976))
execute the decision under alternative
contingencies JUDGMENT – as used in the RoC and the
There should be no need of further Constitution, the words “Judgment” and
proceedings “Decision” have the same meaning, or at
It terminates the case by according least, no substantial difference between the
the proper relief two words is indicated. But, sometimes
It must adjudicate cost. judgment is used to refer to the “dispositive
portion” of the decision.
Headnotes or syllabus
Headnotes – a brief summary of a Kinds of opinion
legal rule or a significant fact in a case that, Majority Opinion – judicial opinion
among other headnotes that apply to the agreed to by more than half of the members
case, precedes the full text opinion printed in of a court;
the reports. It is used to facilitate research. It Concurring opinion
does not constitte a part of an opinion. Plurality opinon
Syllabus – summarizes the points Dissenting Opinion (does not create
decided in the case and is placed before the a binding precedent nor does it become a
text of the opinion but it does not constitute a part of case law.)
part of the opinion and does not constitute Non-adjudicative opinions/advisory
binding authority. opinions – do not dispose of a particular
case. They often address a general issue or
Opinion vs. decision matter, or are issued in a case that is being
Opinion – (of the Judge) is an heard outside their jurisdiction.
expression of the reasons by which he
reaches his conclusions. These may be o Legal Writing
sustained or contradictory , clear or
confused. o Types of Legal Writing
Decision - Judgment or Decree – is o INFORMATIVE – conveys information
the fiat or sentence of the law, determining on an issue invlving the law or a
the matter in controversy, in concise, person’s legal rights. This type of writing
technical terms, which must be interpreted in does not take sides. Its goal is objective
their own proper sense. communication by predicting the law’s
“path” vis-à-vis a set of facts regardless
Decision vs. judgment of who is involved, examples:
Decision – “popular” and not a memoranda, lettes to clients and
technical, legal word. It is a very statement of facts in brief.
o PERSUASIVE WRITING – convinces o C. Recommendation – the writer, based
the reader to accept a certain viewpoint. on the facts and law, gives his advice or
Here, the writer argues for a particular recommendation as to what is the best
side or perspective. He use available line of action under the circumstances.
legal tools to support his thesis. These o Examples: opinion, memorandum
may be pieces of evidence offered in written to senior parnetners and legal
court, sections of the law, decisions of opinion letters to clients.
the Supreme Court, opinions of legal
authorities on a subject. Examples: o PERSUASIVE ANALYSIS – a
academic legal writing, motions, persuasive document attempts to
pleadings, and argument section of persuade a judge; arbiter or any other
brief. deciding authority to decide the case in
favor of the writer’s client. Example:
o FUNCTIONAL WRITING – designed for pleadings, motions, and briefs.
a specific use or result in law. These are
deeds, wills, contracts or drafts of laws o II. LEGAL DRAFTING – this is the
and ordinances which legally bind those functional type of legl writing. Here, the
involved. Some specific format, writer creates a legally binding
ceremony, or legal requirement may be document, or uses an already available
present in this type of writing. This type template in the Legal Forms handbooks.
of writing need not be analytical nor Among the examples are: contract,
persuasive. It is enough to be accurate deeds, wills, testaments etc. for private
and complete yet understandable. persons and laws, regulations, and
ordinances which bind the public in
general.
o Requires no legal authority
o BROAD CATEGORIES OF LEGAL
o A separate subject in the law curriculum
WRITING
– “Legal Foms.”
o I. LEGAL ANALYSIS
o Definition of terms
o PREDICTIVE ANALYSIS – a predictive
document deals with a legal question in
o MEMORANDUM – literally “to be
3 way
remembered” is a paper that explains
o A. analysis – the facts and the law are
and summarizes specific points of law
analyzed and studied closely. The facts
for a judge, for another attorney or a
are then applied to the law or
client.
jurisprudence and they are interpreted
o PLEADING – a formal presentati of
according to the meaning of the law.
claims and defenses by parties to a
o B. prediction – the outcome of the legal
lawsuit. The specific papers by which th
question, whether positive or negative,
allegations of parties to a lawsuit are
is predicted.
presented in porper form; specifically
the complaint of a plaintiff and the
answer of a defendant plus any o 4. identify the issue or issues that you
additional responses to those papers would address; and
that are authorized by law. o 5. rough out the arguments that you
would use.
o MOTION – a written or oral application
made to a court or judge to obtain a o II. WRITE-UP
ruling or order directing that some act be o Here, having all the ideas you need
done in favor of theapplicant. The concerning your legal writing
applicant is known as the moving party assignment, your task is to put flesh,
or the movant. color, and shape to them.
o You will now transform the sketches and
o BRIEF – a written document drawn up outlines you produced during pre-work
by an attorney for a party in a lawsuit or into a full draft of the paper required of
by appearing pro se that concisely you – a pleading, a legal opinion, a
states the following: petition, a comment, a memorandum, a
o Issues of a lawsuit; position paper, or even a decision.
o Facts that bring the parties to court; o Editing and re-writing will complete the
o Relevant laws that can affect the subject write-up stage.
of the dispute; and o Importance of Drafting an Outline
o Arguments that explain how the law o Value of pre-work
applies to the particular facts so that the o Most haphazardly finished legal writing
case will be decided in the parties favor. can be traced to lack of pre-work or to
pre-work hastily done.
o APPELLATE BRIEF – a writing that o The need for pre-work is true for all
must be filed with an appellate court so kinds of presentations that are aimed to
that the court may evaluate whether the convince others to a certain point of
decision of the lower court should be view.
reversed because of some error or
impropriety that occurred during the trial. o REMEMBER…
o LEGAL writing is writing a well-balanced
o STAGES OF LEGAL WRITING legal document that conveys thoughts in
a simple but effective way
o I. PRE-WORK o The twin objective: to communicate and
o Pre-work to persuade
o Looking for the facts and evidence of o Your paper should communicate
the case effortlessly, persuade effectively, inspire
o Process: a belief and motivate action, or
o 1. Establish where the legal dispute lies strengthen a weak position.
in the case; o Persuade the Judge – appeal to the
o 2. discover its relevant facts; emotion; appeal to the heart; to the spirit
o 3. know the laws or rules that apply to it; behind the law
o Convince the Judge – defense is based o A. the apartment owner’s claim that the
in law. tenant fails to pay the agreed monthly
rents and must leave his unit; and
o QUALITIES OF GOOD LEGAL o B. the tenant’s denial of the claim and
WRITING insistence to retain the unit.
o ACCURACY o The legal right claimed to have been
o CLARITY violated must of course be a legal right
o CONCISENESS since courts will uphold and vindicate
those rights that are established or
o COMPONENTS OF GOOD LEGAL recognized by law.
WRITING
o 1. SUBSTANCE – allegations containing o In civil cases : legal dispute is akin to a
the coa; arguments cause of action in which the defendant
denies the claim against him;
o 2. STYLE – grammar, syntax, rhythm,
proper arrangement of paragraphs, o In criminal cases: the legal dispute
words are correctly spelled. consists in the State’s claim that the
accused has violated its right to compel
o Improving legal writing style obedience to its laws and in the latter’s
o 1. Read law books, legal periodicals, SC denial of the claim during his
decisions. arraignment.
o 2. A every opportunity a lawyer must
make a conscious effort to improve his o LEGAL ISSUE
writing style. o As a rule, the legal dispute recast in the
format of an issue, provides the legal
o The Legal Dispute vs. Legal Issue issue in every case.
o Legal dispute o Taking the earlier example of the tenant
o Lies at the heart of every case. In fact, who could not pay the monthly rent yet
most of your writing assignments as a refuses to leave his apartment unit; the
lawyer would probably be devoted to legal issue will be
arguing and resolving such a dispute. o “Whether or not the tenant who fails to
o There is a LEGAL DISPUTE when one pay the monthly rents must leave the
party complains of a violation of his right apartment unit.”
by another who, on the other hand,
denies such a violation. o It is important to know the legal issue
o For example: because your case will be decided for or
o When a person renting an apartment against you based on that issue.
allegedly could not pay the agreed
monthly rents yet he refuses to leave his o Reading Assignment: Read about the
unit, a legal dispute arises: chapter on Matters of Style
o Writing exercise :
o Situation : B is the owner of an
apartment for rent. Her tenant, C is not
able to pay her rentals of P10,000.00
per month for the past three months. B
now wants to eject C. B comes to you
and engaged your services as a lawyer.
o Make a demand letter.
o Manner of submission: Handwritten.
Scan the notebook and save as pdf.
Email to [email protected]
o Deadline of submission: Thursday
September 17, 2020.
o Writing Assignment No. 2
o Suppose that C did not comply with your
client’s demand to vacate. You are now
asked to commence the action in court.
o Draft a Complaint.
o Deadline of submission: September 21,
2020.
