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Chapter 5: Knowing the Applicable
Law or Rule
Sources of Law or Rule
Statute Law: This consists of laws
and rules enacted by duly
constituted rule-making authorities
like Congress, the President, the
Supreme Court, local government
councils, and administrative
regulatory agencies
Case law: This consists of
decisions of courts and persons or
agencies performing judicial
functions. These decisions interpret
and apply statue law to specific
situations
How to locate the right law and legal
precedents?
 Identify the general nature
of the legal dispute
involved.
 Having become familiar
with the facts of your case,
search for legal precedents
that have more or less
parallel facts. Find the
rulings in those parallel
cases, whether for or
against your side of dispute,
and you will have more
confidence in charting the
course of your arguments
Apart from above sources of laws and
rules, there are rules that derive from the
wisdom of common experience
Example
 Errorless recollection of a
harrowing incident cannot be
expected of a witness, especially
when she is recounting details of an
experience so humiliating and so
painful rape
 Fear has its bizarre way of rendering
people immobile even in life-and-
death situations.
Match the applicable laws or rules with the
relevant facts of your case and you are
ready to work on your arguments.
Facts Examined
 Having discovered the laws
or rules that apply to your
case, you should now be in a
better position to review
your summary of the facts
and add to it to the other
relevant facts that you may
have omitted
Chapter 6
Introduction
The next step of the prework:
1. Pinpoint the specific issues that the
conflicting claims od the parties are
present; and
2. Put issues into writing
WRITE: the facts, the law, the argument
and the relief
*You write aimlessly when you are unable
to understand the issues in your case or are
unable to hold onto it.*
Issues in Multiple Legal Disputes
Lawsuit could involve multiple legal
disputes, therefore multiple principal
issues. What is essential is to spot the
controlling issue, the resolution of which is
the key into solving the multiple legal
disputes.
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*claims, denials, counterclaims- source of
multiple legal disputes
Subordinate Controlling Issues
Subordinate issues becoming the
controlling issues would decide the
outcome of the case.
Relevant and Irrelevant Issues
Relevant issues- those issues which when
resolved determine the outcome of the
legal dispute
Irrelevant issues- have no value in a case
even if they are debated and resolved since
they are of no consequence to the outcome
of the legal dispute.
A list of all the issues
Issues are easy to spot. There is an issue
when the contending party disagree on a
given point. In order to detect an issue one
only needs to compare the facts and the
laws that both sides claim and identify as
areas of their disagreement. It should make
sense in pre-work to write a list of all the
issues that the opposing claims of the
parties present.
Take note that by listing down the issues in
a given case it will be very helpful for us
in identifying the controlling issues, which
are the issues that the outcome of the case
hangs on their resolution.
Factual and Legal Issues
An issue is factual when the contending
parties cannot agree that a thing exists or
has actually happened.
An issue is legal when the contending
parties assume a thing exists or has
actually happened but disagree on its legal
significance disagree on its legal
significance or effect on their rights.
Correct statement of the Issues
Issues should be correctly phrased.
1. Statements of the issues should be
preceded by the words whether or
not in order to automatically
incorporate the opposing views, the
positive and the negative, into one
statement of the issue.
2. The issues should be stated in
terms of what the plaintiff or the
accuser claims the fact to be rather
than in terms of the accused or
defendant’s opposite claims. The
reason for this is that the plaintiff
in a case always bears the burden
of proving the affirmative of his or
her claim. Take note that this is the
general rule because the exception
is that when the defendant, the
respondent, or the accused in the
case admits the facts constituting
the claim against him but raises a
defense that exempts him or her
from liability under it.
3. Statement of the issue must be fair,
not slanted in favor of the party.
4. The statement of the issue should
be comprehensive, leaving no
relevant point outside its embrace.
5. The statement of the issue must be
specific and clear.
6. Try at all times to capture in your
statement of the issue, the gist or
essence of the specific violation of
rights that the defendant
committed.
Threshold Issues
Threshold issues are those that could slam
the door to any judicial consideration of
the case on its merits. These issues are
usually brought out by a motion to dismiss
in a civil action or a motion to quash in a
criminal action, filed before the issues on
the merit are joined by the filing of an
answer in the first or a plea of not guilty in
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the second. The resolution of these
threshold issues and similar others takes
precedence over the main legal disputes.
Chapter 7
Roughing Out the Argument
Roughing Out the Argument
- Part of pre-work activities. It gives
an overall picture of the
presentation and provides purpose
and direction to your writing.
Structure of Balanced Thesis Presentation:
- Represents the psychology of every
balanced attempt to win others to
your point of view in a controversy
1. Thesis statement or proposition:
clear statement of thesis or where
you stand on the issue to be
resolved
2. Arguments that can be made
against your position but with an
explanation that those arguments
do not doom such position
3. Arguments in favour of your
position
4. Appeal to the good sense of the
person/s who will resolve the issue.
* Question: How do you guard yourself
against mindless approach that
characterizes
many legal writings?
* Answer: Plan and rough out a
balanced approach to your arguments
before writing
them up.
Thesis Statement: Where You
Stand On The Issue
Arguments Arguments in
Against You Your Favor
Appeal to Your Reader’s Good
Sense
Anatomy of a Legal Argument
Argument – a reason you offer to prove
your thesis or proposition
Classic Categorical Syllogism:
 Major Premise – statement
of a generally accepted rule
or truth
 Minor Premise – statement
that brings a particular
thing or individual within
the class or situation
covered by the generally
accepted rule or truth
 Conclusion – statement that
follows after the major and
minor premises, deducing
that the generally accepted
rule or truth applies to the
particular thing or
individual
* Remember: Every sound legal argument
is a combination of the right rule and the
right fact.
Three Statement- Argument (Following
the Syllogism):
 Rule Statement
– or stating the rule
that applies to a
given fact or set of
facts
 Case Fact Statement
– or stating the facts
in your case. It is
the statement of the
fact of a particular
case that opens up
such case or closes
it to the application
of the rule
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 Conclusion Statement
– or stating your
conclusion. It is the
conclusion that the
rule applies or does
not apply to the
particular case.
Key Facts in Rules
 Presence of key facts in the
case opens up such case to
the application of the rule.
 When the key fact
component of the rule
statement is present in the
case fact statement, then
there’s positive match.
The Case Fact
 It is the fact of the particular
case that determines what will
govern
Meaning of “Rule”
Scope of Rules
1. Constitutional provisions
- i.e. “private property shall not be
taken except upon payment of just
compensation”
2. Statutory provisions
- i.e. Civil Code “ignorance of the
law excuses no one”
3. Rule of Court provisions
- i.e. “an offer of compromise by the
accused may be received in
evidence as an implied admission
of guilt”
4. Case Laws or Judicial
Precedents
- Most convenient source of
arguments
5. Widely accepted truths derived
from logic, common sense or
even common experiences
Practical Tips for Creative Thinking
- When you have exhausted
legislative rules and court
precedents
1. Be sure that your mind gets all the
data and inputs about the case that
your source materials would yield
2. Pose the problem to your mind.
Repeat the question until it has
been planted in your mind.
3. Forget about the case. Take time
out and let your subconscious mind
do the work. Go to sleep. The
answer will pop-out of your head
in the middle of what you are doing
Arguments that Build Up
1. Favorable testimony comes from a
credible witness
2. Party’s version is inherently
credible and consistent with
common experience
3. All the elements or requisites of a
valid claim or defense have been
proved
Arguments that Destroy
1. Argument raised is irrelevant
- An argument is irrelevant
when it does not help
resolve the issue one way or
the other
2. Argument has little weight given
the other considerations in the case
- Here you can assume that
your proponent has made a
valid argument but you
hasten to state that other
considerations outweigh
that argument
3. Argument is baseless
- A claim made with no fact to
support it is baseless.
4. Argument is contrary to common
experience
- As a rule, claims that go
against ordinary human
experience are bizarre and
cannot be believed
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5. Argument is inconsistent with
undeniable facts
- No assertion can defeat
facts that cannot lie
6. Argument is inconsistent with a
prior claim
- Persons who say one thing
now and another thing later
cannot be relied on to tell
the truth
Pre-work Reviewed
Summary of Steps to be Undertaken:
1. Ascertain the legal dispute
2. Make an outline of the relevant
facts
3. Identify the issues
4. Rough out your argument
Chapter 8: Introducing the Issue
Need for an Introduction
A background is an essential part of
the introduction. It narrates the key
elements of your case. It clarifies the
arguments presented later on.
"Without the background, you can never
hope to understand your opinion or
argument"
Sufficiency of the introduction
How much background facts is needed?
"ONLY as much facts for the
understanding of the issue or issues that
the parties present."
Do not input too much information in
the background facts. Remember that you
still have the arguments section/part to
provide all the reasons to make your case.
The information you put in the background
facts are simply for the clarification of the
issue presented in your case.
There are 2 statements needed to introduce
your case:
1. The statement of the case
2. The statement of the fact
The statement of the case
You must write a clear and concise
statement of the
a. Nature of the action
b. Summary of the pleadings
c. Challenged order or decision issued
"...matters necessary to an understanding
of the controversy"
The statement of the fact
You must narrate the transaction or event
that created the legal dispute that led to the
filing of the suit.
Remember that it is better to not only
present your side of the facts but to also
include the opposing side. This would help
you understand the issue at bar
How do you organize the flow of your
writing?
The chart given below can help you
organize the thoughts that are cramped up
in your mind.
Statement of the case
Statement of the fact
Plaintiff's version Defendant's
of the facts version of the facts
The issue or issues
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Body of arguments
Relief
How much detail must be in your
statement of facts?
Like in the background facts, the less
words you use to clearly inform your
reader and the judge about the issues in
your case, the better.
ARGUMENTS
I. CASAL DID NOT PUBLICLY
ACCUSE DE LEON OF STEALING
HER JEWELRY
The trial court gave credence to De Leon’s
testimony that Casal singled her out as the
jewelry thief, telling her in the presence of
others, “Ikaw lang ang lumabas ng kwarto,
nasaan ang dala mong bag? Saan ka
pumunta? Ikaw lang ang lumabas ng
kwarto, ikaw ang kumuha.” The trial court
concluded that Casal indeed publicly
humiliated her without justification. But
the trial court ignored other significant
portions of De Leon’s testimony. She said
in contradiction to the above that she
learned she had been suspected because a
certain Noel later told her that the group of
Casal had their eyes on her. Thus, it is
revealed that the initial statement was a lie.
For if it were true that Casal had publicly
accused her of taking the jewelry when she
went into the bride’s room, what was the
point in her claiming after that public
confrontation that it was from Noel that
she learned she had been suspected? Basic
is the rule that, to be believed, a testimony
should be in accord with the common
order of things.
Moreover, Mrs. Villanueva, De Leon’s
own witness did not confirm what De
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
suggest that Casal had publicly and
maliciously accused De Leon of stealing
the jewelry.
Furthermore, De Leon admitted in her
testimony that she learned of Casal’s loss
of her jewelry only on the following day,
March 11. If De Leon learned of the fact of
loss of the jewelry only on the following
day, what was her basis in claiming that in
the afternoon of October 10 when she
stepped into the bride’s room a second
time, Casal publicly accused her of taking
her jewelry? Her claim makes no sense.
II. ASSUMING CASAL SAID THE
WORDS IMPUTED TO HER, IT IS NOT
SHOWN THAT SHE DID SO
MALICIOUSLY AND IN BAD FAITH
The trial court ruled that by the words she
used, Casal implied that only De Leon
could have taken the jewelry. She made
this accusation with malice and bad faith
since she did so without any solid proof.
But assuming that Casal indeed uttered
those words, the circumstances show that
she did not do so maliciously or in bad
faith. Malice is defined as the intentional
doing of a wrongful act without just cause
or excuse, with intent to inflict an injury or
under circumstances that the law will
imply an evil intent. In the law of
malicious prosecution, it is the intentional
doing of a wrongful act without legal
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justification, and may be inferred from the
absence of probable cause.
It cannot be said that an accusation
expressed during a startling event, when
the person made it was in a state of shock
or disbelief at her loss, made it with
deliberate malice. Things happened
simultaneously. Casal could not have had
the opportunity to reflect and deliberate on
her action upon discovering her loss. She
uttered what first came into her mind, a
natural thing under the circumstances.
Besides, her suspicion of De Leon was not
altogether baseless. Admittedly, De Leon
went in and out of the room hurriedly.
Clearly, Casal was not motivated by any ill
will or personal hatred when she
supposedly uttered her suspicion. And
when she supposedly sought investigation
of the incident focusing on De Leon, she
merely exercised her right. Que jure suo
utitur nulum damnum facit. One who
exercises his rights does no injury. Even if
damage results from a person’s exercising
his legal rights, it is damnum absque
injuria.
In fact, the investigation did not single out
De Leon. All the people in the room at that
time were interviewed, their bags were
searched, and their fingerprints were taken.
The relatives of Casal were not spared
from the interrogation, the body and bag
search, and the fingerprinting.
Closing Statement
It does frequently happen that some
valuable things are suddenly discovered
stolen in a big household, in a classroom,
or in an office full of personnel. Since it is
likely that only one was a thief, would it be
best that the loss be endured and
overlooked for the sake of protecting the
sensibilities of the greater number who are
presumably innocent? Surely not, since it
is finding out the truth by investigating and
searching everyone who had the
opportunity of committing the offense that
will remove the cloud of suspicion from
him. Feelings might get hurt but the truth
will set every one free.
Relief
WHEREFORE, defendant-appellant Laura
Casal respectfully prays that Court to set
aside the decision of the trial court dated
August 17 and dismiss the complaint
against her.
NOTE: Where the parties have conflicting
versions, it would seem best when you
prepare the background or introductory
facts to extract your facts solely from the
direct testimonies of the witnesses from
either side. The direct testimonies of
witnesses, as a rule, embody the versions
that the parties espouse. When the cross-
examinations have done some damage to
the testimony of your opponent’s
witnesses, use these in the argument
portion where they would have greater
impact and telling effect.
SHORT INTRODUCTIONS
The need to introduce the issue with some
background facts or antecedent
circumstances (equivalent of the statement
of facts) is not limited to a memorandum
that a party submits after trial. They also
work for incidental issues brought up in
the course of the proceedings. Example:
[CAPTION OMITTED]
MOTION TO QUASH
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Accused Sergio M. Lazaro, by counsel,
respectfully states:
The Charge
The prosecution has accused Sergio M.
Lazaro of estafa by misappropriation or
conversion under Art. 315, paragraph 1(B),
of the Revised Penal Code. The
information reads:
That on or about August 15 in Makati City
and within the jurisdiction of this
Honorable Court, the said accused, while
acting for and in behalf of Lovely
Garments Corporation, obtained from
Asiatic Bank a loan in the amount of ONE
HUNDRED THOUSAND US Dollar
using as collateral a deed of assignment
dated July 27 executed in favour of Asiatic
Bank conveying all its rights, title, and
interests in confirmed purchase order No.
1234 of its foreign buyer, Macy’s Inc. of
the United States; that far from complying
with the undertaking in the deed of
assignment, said accused, did then and
there, wilfully and feloniously defraud
Asiatic Bank, by allowing the payment of
the purchase order covered by the deed of
assignment to another entity; that upon the
maturity of the loan from Asiatic Bank, the
accused failed to pay said loan; that
despite repeated demands from Asiatic
Bank, said accused failed and refused to
pay the loan to the damage and prejudice
of said bank in the aforesaid amount.
Issues Presented
The only issue accused Lazaro presents in
this motion to quash is whether or not the
facts charged in the information constitute
the offense of estafa by misappropriation
or conversion.
Elements of Estafa by Misappropriation or
Conversion
The elements of estafa by
misappropriation or conversion, of which
accused Lazaro has been charged are as
follows:
One. The money or goods be received by
the accused in trust, or on commission, or
for administration, or under any other
obligation involving the duty to make
delivery of, or to return, the same;
Two. That there be misappropriation or
conversion or denial on the part of the
accused of such receipt;
Three. That such misappropriation or
conversion of such money or property by
the accused is to the prejudice of another;
and
Four. That there is a demand made by the
offended party of the accused.
Argument
For estada by misappropriation or
conversion to apply to the transaction
subject of this criminal action, it is
essential that accused Lazaro, acting for
Lovely Garments, receive the money in
trust for or as an agent of the bank. The
classic example of this kind of estafa
involves the trust receipt. In such a
transaction, the offender receives goods in
trust for the bank but he is unable to
account for the goods or the proceeds of
their sale. Consequently, he is liable for
estafa by misappropriation or conversion.
The information in this present case,
broken down to its essentials, alleges that:
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1. Lovely Garments (represented by
accused Lazaro) obtained a loan of
US$100,000.00 from the Bank;
2. In getting the loan, Lovely Garments
used as collateral a deed of assignment in
favour of the bank in which Lovely
Garments conveyed all its rights, title, and
interests in a purchase order of a foreign
buyer, Macy’s Inc. of the United States;
3. Far from complying with the deed of
assignment, however, accused Lazaro
defrauded the Bank by allowing the
payment of the purchase order to another
entity;
4. When the loan matured, accused Lazaro
failed to pay it; and
5. Despite demands from the Bank, he
failed to pay the loan.
The present criminal action is based on the
failure of a borrower to pay a bank loan.
But failure to pay a loan is not a criminal
act. When the borrower spends the money
for his benefit, he could not be said to have
misappropriated or converted the money to
the prejudice of the bank. In a loan, it is
understood that the borrower spends the
money for his purpose. He does not act as
agent of the bank with respect to the
money he borrowed for his use. Indeed,
the information does not say that the
accused was to hold the loan money in
trust for the bank or for a purpose that
places him under an obligation to account
for where the money went. Art. 315 No.
1(b) does not apply when the contract
between the accused and the complainant
has the effect of transferring to the accused
the ownership of the thing received. When
the bank gave Lovely Garments a loan, it
transferred ownership of that money to
Lovely Garments. It has been held that
when the contract is a loan of money, the
accused debtor cannot be held liable for
estafa for merely refusing to pay, or
denying having contracted, the debt. Loan
money is known as mutuum. It is a loan
for consumption and the ownership of the
thing loaned passes to the borrower.
WHEREFORE, the accused Sergio M.
Lazaro respectfully prays the Court to use
an order quashing the information and
dismissing the case.
On a different note, an opposition to a
motion for postponement would exemplify
a pleading that needs the least
introduction. Still, the lawyer opposing the
postponement must, as a minimum
requirement for understanding the issue
that his opposition tenders, state
background facts. Example:
OPPOSITION TO MOTION TO RESET
HEARING
Plaintiff Benjamin S. Amurao, by counsel,
respectfully states:
1. [The introduction:] On June 11
defendant filed a motion to reset the
hearing set on June 24 at 8:30am on the
ground that his counsel has to attend
another hearing on the same date and time
in a criminal case before the Regional
Trial Court of Calamba, Laguna.
2. [The statement of the issue:] But
plaintiff must oppose the motion.
3. [The argument:] It will be recalled that
the hearing on June 24 was set by
agreement of the parties with both counsel
consulting their calendars of hearings. The
motion to reset means that defendant’s
counsel gave low priority to this case,
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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.