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GROUP 2

Chapter 5: Knowing the Applicable expected of a witness, especially

Law or Rule when she is recounting details of an
experience so humiliating and so
Sources of Law or Rule painful rape
Statute Law: This consists of laws  Fear has its bizarre way of rendering
and rules enacted by duly people immobile even in life-and-
constituted rule-making authorities death situations.
like Congress, the President, the
Match the applicable laws or rules with the
Supreme Court, local government
relevant facts of your case and you are
councils, and administrative
ready to work on your arguments.
regulatory agencies
Facts Examined
Case law: This consists of
decisions of courts and persons or  Having discovered the laws
agencies performing judicial or rules that apply to your
functions. These decisions interpret case, you should now be in a
and apply statue law to specific better position to review
situations your summary of the facts
and add to it to the other
How to locate the right law and legal
relevant facts that you may
precedents?
have omitted
 Identify the general nature
Chapter 6
of the legal dispute
involved. Introduction
 Having become familiar
with the facts of your case, The next step of the prework:
search for legal precedents 1. Pinpoint the specific issues that the
conflicting claims od the parties are
that have more or less
present; and
parallel facts. Find the 2. Put issues into writing
rulings in those parallel
cases, whether for or WRITE: the facts, the law, the argument
against your side of dispute, and the relief
and you will have more
confidence in charting the *You write aimlessly when you are unable
to understand the issues in your case or are
course of your arguments
unable to hold onto it.*
Apart from above sources of laws and
Issues in Multiple Legal Disputes
rules, there are rules that derive from the
wisdom of common experience Lawsuit could involve multiple legal
disputes, therefore multiple principal
Example
issues. What is essential is to spot the
controlling issue, the resolution of which is
 Errorless recollection of a
the key into solving the multiple legal
harrowing incident cannot be disputes.
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*claims, denials, counterclaims- source of Correct statement of the Issues

multiple legal disputes
Issues should be correctly phrased.
Subordinate Controlling Issues
1. Statements of the issues should be
Subordinate issues becoming the preceded by the words whether or
controlling issues would decide the not in order to automatically
outcome of the case. incorporate the opposing views, the
positive and the negative, into one
Relevant and Irrelevant Issues statement of the issue.
2. The issues should be stated in
Relevant issues- those issues which when terms of what the plaintiff or the
resolved determine the outcome of the accuser claims the fact to be rather
legal dispute than in terms of the accused or
defendant’s opposite claims. The
Irrelevant issues- have no value in a case reason for this is that the plaintiff
even if they are debated and resolved since in a case always bears the burden
they are of no consequence to the outcome of proving the affirmative of his or
of the legal dispute. her claim. Take note that this is the
general rule because the exception
A list of all the issues is that when the defendant, the
respondent, or the accused in the
Issues are easy to spot. There is an issue case admits the facts constituting
when the contending party disagree on a the claim against him but raises a
given point. In order to detect an issue one defense that exempts him or her
only needs to compare the facts and the from liability under it.
laws that both sides claim and identify as 3. Statement of the issue must be fair,
areas of their disagreement. It should make not slanted in favor of the party.
sense in pre-work to write a list of all the 4. The statement of the issue should
issues that the opposing claims of the be comprehensive, leaving no
parties present. relevant point outside its embrace.
5. The statement of the issue must be
Take note that by listing down the issues in specific and clear.
a given case it will be very helpful for us 6. Try at all times to capture in your
in identifying the controlling issues, which statement of the issue, the gist or
are the issues that the outcome of the case essence of the specific violation of
hangs on their resolution. rights that the defendant
committed.
Factual and Legal Issues
Threshold Issues
An issue is factual when the contending
parties cannot agree that a thing exists or Threshold issues are those that could slam
has actually happened. the door to any judicial consideration of
the case on its merits. These issues are
An issue is legal when the contending usually brought out by a motion to dismiss
parties assume a thing exists or has in a civil action or a motion to quash in a
actually happened but disagree on its legal criminal action, filed before the issues on
significance disagree on its legal the merit are joined by the filing of an
significance or effect on their rights. answer in the first or a plea of not guilty in
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the second. The resolution of these Appeal to Your Reader’s Good

threshold issues and similar others takes Sense
precedence over the main legal disputes.

Chapter 7
Roughing Out the Argument Anatomy of a Legal Argument

Roughing Out the Argument Argument – a reason you offer to prove

- Part of pre-work activities. It gives your thesis or proposition
an overall picture of the
presentation and provides purpose Classic Categorical Syllogism:
and direction to your writing.  Major Premise – statement
of a generally accepted rule
Structure of Balanced Thesis Presentation: or truth
- Represents the psychology of every
balanced attempt to win others to  Minor Premise – statement
your point of view in a controversy that brings a particular
thing or individual within
1. Thesis statement or proposition: the class or situation
clear statement of thesis or where covered by the generally
you stand on the issue to be accepted rule or truth
resolved
2. Arguments that can be made  Conclusion – statement that
against your position but with an follows after the major and
explanation that those arguments minor premises, deducing
do not doom such position that the generally accepted
3. Arguments in favour of your rule or truth applies to the
position particular thing or
4. Appeal to the good sense of the individual
person/s who will resolve the issue.
* Remember: Every sound legal argument
* Question: How do you guard yourself is a combination of the right rule and the
against mindless approach that right fact.
characterizes
many legal writings? Three Statement- Argument (Following
the Syllogism):
* Answer: Plan and rough out a  Rule Statement
balanced approach to your arguments – or stating the rule
before writing that applies to a
them up. given fact or set of
facts
 Case Fact Statement
– or stating the facts
Thesis Statement: Where You in your case. It is
Stand On The Issue the statement of the
fact of a particular
Arguments Arguments in case that opens up
Against You Your Favor such case or closes
it to the application
of the rule
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 Conclusion Statement - When you have exhausted

– or stating your legislative rules and court
conclusion. It is the precedents
conclusion that the
rule applies or does 1. Be sure that your mind gets all the
not apply to the data and inputs about the case that
particular case. your source materials would yield
2. Pose the problem to your mind.
Key Facts in Rules Repeat the question until it has
 Presence of key facts in the been planted in your mind.
case opens up such case to 3. Forget about the case. Take time
the application of the rule. out and let your subconscious mind
 When the key fact do the work. Go to sleep. The
component of the rule answer will pop-out of your head
statement is present in the in the middle of what you are doing
case fact statement, then
there’s positive match. Arguments that Build Up
1. Favorable testimony comes from a
The Case Fact credible witness
 It is the fact of the particular 2. Party’s version is inherently
case that determines what will credible and consistent with
govern common experience
3. All the elements or requisites of a
Meaning of “Rule” valid claim or defense have been
proved
Scope of Rules
1. Constitutional provisions Arguments that Destroy
- i.e. “private property shall not be 1. Argument raised is irrelevant
taken except upon payment of just - An argument is irrelevant
compensation” when it does not help
2. Statutory provisions resolve the issue one way or
- i.e. Civil Code “ignorance of the the other
law excuses no one” 2. Argument has little weight given
3. Rule of Court provisions the other considerations in the case
- i.e. “an offer of compromise by the - Here you can assume that
accused may be received in your proponent has made a
evidence as an implied admission valid argument but you
of guilt” hasten to state that other
4. Case Laws or Judicial considerations outweigh
Precedents that argument
- Most convenient source of 3. Argument is baseless
arguments - A claim made with no fact to
support it is baseless.
5. Widely accepted truths derived 4. Argument is contrary to common
from logic, common sense or experience
even common experiences - As a rule, claims that go
against ordinary human
Practical Tips for Creative Thinking experience are bizarre and
cannot be believed
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5. Argument is inconsistent with facts are simply for the clarification of the
undeniable facts issue presented in your case.
- No assertion can defeat
facts that cannot lie There are 2 statements needed to introduce
your case:
6. Argument is inconsistent with a
prior claim 1. The statement of the case
- Persons who say one thing 2. The statement of the fact
now and another thing later
cannot be relied on to tell
The statement of the case
the truth
You must write a clear and concise
Pre-work Reviewed
statement of the
Summary of Steps to be Undertaken: a. Nature of the action
1. Ascertain the legal dispute
b. Summary of the pleadings
2. Make an outline of the relevant
facts c. Challenged order or decision issued
3. Identify the issues "...matters necessary to an understanding
4. Rough out your argument of the controversy"

The statement of the fact

Chapter 8: Introducing the Issue
You must narrate the transaction or event
Need for an Introduction that created the legal dispute that led to the
filing of the suit.
A background is an essential part of
the introduction. It narrates the key Remember that it is better to not only
elements of your case. It clarifies the present your side of the facts but to also
arguments presented later on. include the opposing side. This would help
you understand the issue at bar
"Without the background, you can never
hope to understand your opinion or How do you organize the flow of your
argument" writing?

Sufficiency of the introduction The chart given below can help you
organize the thoughts that are cramped up
How much background facts is needed?
in your mind.
"ONLY as much facts for the
understanding of the issue or issues that Statement of the case
the parties present."
Statement of the fact
Do not input too much information in
the background facts. Remember that you
Plaintiff's version Defendant's
still have the arguments section/part to
of the facts version of the facts
provide all the reasons to make your case.
The information you put in the background
The issue or issues
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should be in accord with the common

order of things.

Body of arguments Moreover, Mrs. Villanueva, De Leon’s

own witness did not confirm what De
Relief Leon said. Mrs. Villanueva testified that
what Casal said was, “Siya lang yung
nakita kong galing sa C.R.” However
interpreted, this statement did not at all
How much detail must be in your suggest that Casal had publicly and
statement of facts? maliciously accused De Leon of stealing
Like in the background facts, the less the jewelry.
words you use to clearly inform your Furthermore, De Leon admitted in her
reader and the judge about the issues in testimony that she learned of Casal’s loss
your case, the better. of her jewelry only on the following day,
ARGUMENTS March 11. If De Leon learned of the fact of
loss of the jewelry only on the following
I. CASAL DID NOT PUBLICLY day, what was her basis in claiming that in
ACCUSE DE LEON OF STEALING the afternoon of October 10 when she
HER JEWELRY stepped into the bride’s room a second
time, Casal publicly accused her of taking
The trial court gave credence to De Leon’s
her jewelry? Her claim makes no sense.
testimony that Casal singled her out as the
jewelry thief, telling her in the presence of II. ASSUMING CASAL SAID THE
others, “Ikaw lang ang lumabas ng kwarto, WORDS IMPUTED TO HER, IT IS NOT
nasaan ang dala mong bag? Saan ka SHOWN THAT SHE DID SO
pumunta? Ikaw lang ang lumabas ng MALICIOUSLY AND IN BAD FAITH
kwarto, ikaw ang kumuha.” The trial court
concluded that Casal indeed publicly The trial court ruled that by the words she
humiliated her without justification. But used, Casal implied that only De Leon
the trial court ignored other significant could have taken the jewelry. She made
portions of De Leon’s testimony. She said this accusation with malice and bad faith
in contradiction to the above that she since she did so without any solid proof.
learned she had been suspected because a But assuming that Casal indeed uttered
certain Noel later told her that the group of those words, the circumstances show that
Casal had their eyes on her. Thus, it is she did not do so maliciously or in bad
revealed that the initial statement was a lie. faith. Malice is defined as the intentional
For if it were true that Casal had publicly doing of a wrongful act without just cause
accused her of taking the jewelry when she or excuse, with intent to inflict an injury or
went into the bride’s room, what was the under circumstances that the law will
point in her claiming after that public imply an evil intent. In the law of
confrontation that it was from Noel that malicious prosecution, it is the intentional
she learned she had been suspected? Basic doing of a wrongful act without legal
is the rule that, to be believed, a testimony
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justification, and may be inferred from the overlooked for the sake of protecting the
absence of probable cause. sensibilities of the greater number who are
presumably innocent? Surely not, since it
It cannot be said that an accusation is finding out the truth by investigating and
expressed during a startling event, when searching everyone who had the
the person made it was in a state of shock opportunity of committing the offense that
or disbelief at her loss, made it with will remove the cloud of suspicion from
deliberate malice. Things happened him. Feelings might get hurt but the truth
simultaneously. Casal could not have had will set every one free.
the opportunity to reflect and deliberate on
her action upon discovering her loss. She Relief
uttered what first came into her mind, a
natural thing under the circumstances. WHEREFORE, defendant-appellant Laura
Casal respectfully prays that Court to set
Besides, her suspicion of De Leon was not aside the decision of the trial court dated
altogether baseless. Admittedly, De Leon August 17 and dismiss the complaint
went in and out of the room hurriedly. against her.
Clearly, Casal was not motivated by any ill
will or personal hatred when she NOTE: Where the parties have conflicting
supposedly uttered her suspicion. And versions, it would seem best when you
when she supposedly sought investigation prepare the background or introductory
of the incident focusing on De Leon, she facts to extract your facts solely from the
merely exercised her right. Que jure suo direct testimonies of the witnesses from
utitur nulum damnum facit. One who either side. The direct testimonies of
exercises his rights does no injury. Even if witnesses, as a rule, embody the versions
damage results from a person’s exercising that the parties espouse. When the cross-
his legal rights, it is damnum absque examinations have done some damage to
injuria. the testimony of your opponent’s
witnesses, use these in the argument
In fact, the investigation did not single out portion where they would have greater
De Leon. All the people in the room at that impact and telling effect.
time were interviewed, their bags were
searched, and their fingerprints were taken. SHORT INTRODUCTIONS
The relatives of Casal were not spared The need to introduce the issue with some
from the interrogation, the body and bag background facts or antecedent
search, and the fingerprinting. circumstances (equivalent of the statement
Closing Statement of facts) is not limited to a memorandum
that a party submits after trial. They also
It does frequently happen that some work for incidental issues brought up in
valuable things are suddenly discovered the course of the proceedings. Example:
stolen in a big household, in a classroom,
or in an office full of personnel. Since it is [CAPTION OMITTED]
likely that only one was a thief, would it be MOTION TO QUASH
best that the loss be endured and
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Accused Sergio M. Lazaro, by counsel, Elements of Estafa by Misappropriation or

respectfully states: Conversion

The Charge The elements of estafa by

misappropriation or conversion, of which
The prosecution has accused Sergio M. accused Lazaro has been charged are as
Lazaro of estafa by misappropriation or follows:
conversion under Art. 315, paragraph 1(B),
of the Revised Penal Code. The One. The money or goods be received by
information reads: the accused in trust, or on commission, or
for administration, or under any other
That on or about August 15 in Makati City obligation involving the duty to make
and within the jurisdiction of this delivery of, or to return, the same;
Honorable Court, the said accused, while
acting for and in behalf of Lovely Two. That there be misappropriation or
Garments Corporation, obtained from conversion or denial on the part of the
Asiatic Bank a loan in the amount of ONE accused of such receipt;
HUNDRED THOUSAND US Dollar
using as collateral a deed of assignment Three. That such misappropriation or
dated July 27 executed in favour of Asiatic conversion of such money or property by
Bank conveying all its rights, title, and the accused is to the prejudice of another;
interests in confirmed purchase order No. and
1234 of its foreign buyer, Macy’s Inc. of Four. That there is a demand made by the
the United States; that far from complying offended party of the accused.
with the undertaking in the deed of
assignment, said accused, did then and Argument
there, wilfully and feloniously defraud
For estada by misappropriation or
Asiatic Bank, by allowing the payment of
conversion to apply to the transaction
the purchase order covered by the deed of
subject of this criminal action, it is
assignment to another entity; that upon the
essential that accused Lazaro, acting for
maturity of the loan from Asiatic Bank, the
Lovely Garments, receive the money in
accused failed to pay said loan; that
trust for or as an agent of the bank. The
despite repeated demands from Asiatic
classic example of this kind of estafa
Bank, said accused failed and refused to
involves the trust receipt. In such a
pay the loan to the damage and prejudice
transaction, the offender receives goods in
of said bank in the aforesaid amount.
trust for the bank but he is unable to
Issues Presented account for the goods or the proceeds of
their sale. Consequently, he is liable for
The only issue accused Lazaro presents in estafa by misappropriation or conversion.
this motion to quash is whether or not the
facts charged in the information constitute The information in this present case,
the offense of estafa by misappropriation broken down to its essentials, alleges that:
or conversion.
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GROUP 2

1. Lovely Garments (represented by Lovely Garments. It has been held that

accused Lazaro) obtained a loan of when the contract is a loan of money, the
US$100,000.00 from the Bank; accused debtor cannot be held liable for
estafa for merely refusing to pay, or
2. In getting the loan, Lovely Garments denying having contracted, the debt. Loan
used as collateral a deed of assignment in money is known as mutuum. It is a loan
favour of the bank in which Lovely for consumption and the ownership of the
Garments conveyed all its rights, title, and thing loaned passes to the borrower.
interests in a purchase order of a foreign WHEREFORE, the accused Sergio M.
buyer, Macy’s Inc. of the United States; Lazaro respectfully prays the Court to use
3. Far from complying with the deed of an order quashing the information and
assignment, however, accused Lazaro dismissing the case.
defrauded the Bank by allowing the On a different note, an opposition to a
payment of the purchase order to another motion for postponement would exemplify
entity; a pleading that needs the least
4. When the loan matured, accused Lazaro introduction. Still, the lawyer opposing the
failed to pay it; and postponement must, as a minimum
requirement for understanding the issue
5. Despite demands from the Bank, he that his opposition tenders, state
failed to pay the loan. background facts. Example:

The present criminal action is based on the OPPOSITION TO MOTION TO RESET

failure of a borrower to pay a bank loan. HEARING
But failure to pay a loan is not a criminal
act. When the borrower spends the money Plaintiff Benjamin S. Amurao, by counsel,
for his benefit, he could not be said to have respectfully states:
misappropriated or converted the money to 1. [The introduction:] On June 11
the prejudice of the bank. In a loan, it is defendant filed a motion to reset the
understood that the borrower spends the hearing set on June 24 at 8:30am on the
money for his purpose. He does not act as ground that his counsel has to attend
agent of the bank with respect to the another hearing on the same date and time
money he borrowed for his use. Indeed, in a criminal case before the Regional
the information does not say that the Trial Court of Calamba, Laguna.
accused was to hold the loan money in
trust for the bank or for a purpose that 2. [The statement of the issue:] But
places him under an obligation to account plaintiff must oppose the motion.
for where the money went. Art. 315 No.
1(b) does not apply when the contract 3. [The argument:] It will be recalled that
between the accused and the complainant the hearing on June 24 was set by
has the effect of transferring to the accused agreement of the parties with both counsel
the ownership of the thing received. When consulting their calendars of hearings. The
the bank gave Lovely Garments a loan, it motion to reset means that defendant’s
transferred ownership of that money to counsel gave low priority to this case,
LWRI – TBA2 Thurs 5:30-7:30
GROUP 2

hence, he would willingly sacrifice it for

his other case. This is unjustified.

WHEREFORE, plaintiff respectfully prays

the Court to deny defendant’s motion to
reset the hearing of his case set on June 24.

When the party appeals a decision of the

Court of Appeals to the Supreme Court by
filing a petition for review of the decision,
the latter court would require the other
party (respondent) to comment on the
petition. Since the petition presented the
relevant facts of the case and introduced
the issues that have to be resolved, will it
be necessary for the respondent to restate
the facts and the issue in his comment?
Yes. Because when you file your comment
months and several other intervening
businesses later, the court will have lost
focus of your case. Consequently, it is
essential for the respondent, whom you
represent, to give a brief background of the
facts and the issue in his comment to
enable the court to recall what the case is
about and appreciate the comment. And
when the petition files a reply to the
respondent’s comment, the reply should
itself recall the antecedents of the case in
order to put his reply arguments in the
proper context. But the introduction should
not repeat the elaborate introduction made
in the petition. It should be lean and terse,
confined to the highlights of past
pleadings, a reminder only, not a full
repetition of what had been previously
said.

SOURCE:

Abad, R. (2014). Fundamentals of Legal

Writing. Rex Book Store.