fundamentals of legal writing

7/24/2019 Fundamentals of Legal Writing

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ow to write a legal opinion

he following will be a guide to writing an effective and legally soundgal opinion .It will begin by discussing the qualities of good writing which is central to writing a successful legaal opinion. It will thenove on to discussing the formulation of the legal opinion itself. Finally it will discuss the use of law in a legal opinion and how to refer to

oth case law and statute effectively and efficiently.

uality of Writing

he primary purpose of a legal opinion is communication of advice to either a lay or professional client. It is therefore of the utmostmportance that it is clear and in plain, understandable English. Every word of the legal opinion should be chosen by the writer because

communicates precisely the advice which the writer intends to convey. It is important to write in plain English wherever possible. ood legal opinionll avoid archaic language and legalese. !se of legalese will create a barrier between lawyer and client and divert the main purpose of

e legal opinion" to communicate. That is not to say that the legal opinion should be over simplified. It will no doubt be conveying

peciali#ed legal advice and must therefore be as detailed as the writer thin$s necessary. The use of plain English simply involves

aying what needs to be said in the clearest way possible and avoiding unnecessary verbosity. There are times where technical terms

ll have to be used if they carry the precise meaning of the advice being delivered. This should not be shied away from. %erfect

ammar, punctuation and precision of language are essential. &larity defines good writing. legal opinion will often contain a

omplicated set of facts which will have to be sorted into specific legal issues and defined in legal terms. &larity of e'pression is

erefore vital. &larity of e'pression can only be achieved through thorough planning and thought. thorough plan will lead to a logical

ructure. ny legal opinion will be conveying a particular point, but that point will inevitably need to be bro$en down into sections. Each

ection will culminate in an opinion and each opinion must be fully e'plained and (ustified. &larity of legal writing also requiresonciseness. This does not necessarily imply brevity, but once the point has been made, nothing more need be said. )aving said that,

ompleteness and total accuracy is vital and conciseness should not come above giving full and precise advice.

ormulation of a Legal Opinion

request for a legal opinion will usually come in written form. *uch a request will usually include any documents in the case. Thequest for a legal opinion will include at least one and usually a number of questions which the legal advisor is being as$ed to address.or a barrister an instruction to provide a legal opinion will come from a solicitor so any response will be written with the solicitor in minds the reader, but the solicitor will have requested the legal opinion in order to advise the client and therefore the client must be borne inind as well. The client will want to $now for e'ample not +will liability be established-, but +will I get any money out of this and if so howuch- legal opinion will often have the over arching question of does the client have a good and viable case. This is clearly the most

mportant question to any client and must be approached with honesty and directness. If the clients case is not viable they must bedvised of this in the course of the legal opinion, if there is something which can be done to improve the clients prospects of success, a

ood legal opinion will spell this out very precisely. /umbered action points are one way of achieving clarity in this regard. bove all it istal to remember that in being as$ed to draft a legal opinion, you are being as$ed to advise. *itting on the fence is not an option. 0ayut the pros and cons of a particular course of action, but always come down on one side or the other..1iving a percentage chance of uccess at the beginning of a legal opinion is one way of being clear about what you thin$ the clients prospects are. 2rafting a legalpinion can and should always be split into two processes3 The thin$ing process and the writing process.

eneral Writing Tips

here aren4t many rigid rules when it comes to writing. These are some of the tips I have found helpful.

No legalese. First and foremost, write in plain, straight forward, easy to understand language. void long and complicated sentenceructures.

Active voice. ctive voice is more compelling and easier to understand than passive voice. 7nly use passive voice to intentionallyownplay an incident. *ee my passive voice guide here.

Use pronouns sparingly . !sing pronouns can obscure who or what you are referring to in a sentence. void pronouns whenever ossible and generally avoid using +one- as a pronoun.

Avoid "it" and "to be." :y avoiding the pronoun +it- and the verb +to be,- will ma$e your writing clearer and more active.

Comma and grammar use. 1rammar mista$es ma$e your legal writing appear sloppy and unprofessional and, worse, can changee meaning of your writing. 7nline resources are very helpful. I prefer %urdue4s 7nline Writing 0ab.

http3<<legalwritingtips.blogspot.com<, 6 /ovember 6=5;, 63=6 p.m.

http://legalwritingtips.blogspot.com/2009/12/passive-voice-dont-use-it.html



http://owl.english.purdue.edu/owl/resource/607/02/


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Be concise but thorough. 1ood luc$ finding the balance.

Organize your writing using sections and subsections. 7rgani#e your writing so it is intelligible and convincing. !sing effectiveections and subsections ma$es it easier for the reader to effortlessly follow your argument. s with paragraphing, be sure to stay onoint within each of your sections and subsections. 0egal writing is all about being focused narrowly on the issue @or subAissueB at hand.

you include e'traneous information when addressing an issue, you will confuse the reader and lose the reader4s focus. For e'ample,you are analy#ing facts using a fourApart legal rule, discuss each part of the rule independent of the other. When discussing part two,ont allow yourself to begin analy#ing part three. Cou can do that in a separate section.

Clear headings. Cou should use number and<or letter your sections and subsections @I., a., @5B, ., i., etc.B, and you should labelach section with clear headings, which can be complete sentences if you choose @e.g., +The defendants behavior was e'treme andutrageous.-B. The advantage of using clear headings is that it allows the reader to quic$ly identify what you are analy#ing and to get aense of the essentials of your overall argument by simply reading through the headings.

Eective paragraphing . Within each section, separate your discussion of a topic into several paragraphs that each addresses apecific theme<subtopic relating to the larger topic. Within each paragraph, stic$ to a single, clearly articulated topic. 2o not stray fromat topic.

=. !opic sentences. *tart each paragraph with a clear topic sentence that informs the reader of what topic the paragraph willddress. *tic$ to the topic that you set out to address within that paragraph.

. on#t be vague or conclusive. When discussing the law, focus on detail, detail, detail. 0egal analysis usually depends on the factsa case, and to understand the facts of a case a reader needs detail. 2o not use vague or conclusive statements to e'plain facts. For

'ample, +The defendant was abusive,- without further e'planation, does not tell the reader anything about whether the defendant wasfact abusive. E'plain what the defendant actually did to demonstrate why the defendant4s actions were abusive.

6. Avoid bloc$ %uotes &'() words*. eaders gloss over bloc$ quotes. !nless the ;=G word quote is truly crucial, which is in fact thease at times, put the substance of the quote into your own words or use ellipses to shorten the quote.

8. +ast tense. s a general rule, use past tense when referring to case law and facts. 0awyers often use present tense whenferring to the litigation itself3 H2efendant argues that . . . .H

9. Avoid unnecessary ad,ectives and adverbs. :ac$ up your argument with facts, not with fancy words. nd don4t use e'clamationoints @unless included in a written quoteB.

;. -imit use o nominalizations @ma$ing verbs into nouns marginali#e turns into marginali#ation, or nominali#e to nominali#ationB.

>. Be consistent with style and ormatting . Jany issues of writing style are fle'ible. When you choose an approach or convention,

e consistent throughout a document.

?. Order o importance. s a general rule, put the most important information at the start of the sentence or at the start of your legalgument. 7n occasion, you may choose not to do so for the sa$e of impact or for organi#ation sa$e.

D. No contractions. 2on4t use contractions in formal writing.

. Noun agreement . 2o not use +their- when referring to a singular noun.

=. rite/ read/ revise/ and repeat . Cou are /7T supposed to create a master legal document on your first effort @or your second or irdB. The best legal writers in the world review and revise their written wor$s over and over again. 2o not get hung up when writing

our initial drafts by striving for perfection. *tart with an outline, organi#ed according to the structure of the relevant law. Then starting in each section of your outline. fter you have written a bunch, read through what you have written, ma$e sure it comports with

ontrolling case law, so some more research if necessary, and then revise some more. Kery importantly, see$ out others to review your or$ if possible, and do not be overly sensitive about others critiquing your wor$. Indeed, you should urge your peers not to be too

olite when reviewing your wor$. Cou want critical feedbac$ as it will improve your writing.

assive Voice !on"t #se $t%%

O# 'HO#L! W($T) $* TH) +,T$V) VO$,)

-. write in +ctive Voice/ or clarity. When you write in the passive voice, readers have a more difficult time understanding e'actly what you are trying to convey,articularly if you fail to include a sub(ect in your sentence.







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-at is +ctive Voice/asically, sentences written in the active voice feature sub(ects that precede the predicate or main verb of the sentence. That is, theub(ect of the sentence acts.

0ample 13 Lane delivered the paper.ane N the sub(ect" delivered N verbO

-at is Passive Voice/

hen a writer composes a sentence in passive voice, the sub(ect of the sentence follows the verb, or, worse, the sub(ect is missingom the sentence all together.

0ample 23 T-e paper was elivere . ane4elivered N verb" Lane N the sub(ectOor @worseB A0ample 33 T-e paper was elivere4elivered N verb" who delivered the paperN no sub(ectO

as. wa.s to ientif. Passive Voice5

Ja$e sure the sub,ect precedes the predicate.

!he 0ub,ect the person, place or thing that is acting, doing, establishing, or being something in the sentence.!he +redicate or 1ain 2erb the action or the being of the sentence.

0ample 63 +ctive5 oe sumitte t-e assignment late4oe,- the sub(ect, precedes +submitted,- the predicate.

0ample 73 Passive5 T-e assignment was sumitte late . oe4oe- is still the proper sub(ect, but does not precede +was submitted,- the predicate.

0ample 83 Passive5 T-e assignment was sumitte late4oe- is still the proper sub(ect and +was submitted- is the predicate, but +Loe- the sub(ect does not even appear in the sentenceP This ise most maddening form of passive voice. /ever leave the sub(ect out of your sentences unless you are doing so for effect @i.e., to nota$e Loe loo$ so badB.

0oo$ out for +to e- and other helping verbs. Whenever you use the +to be- verb and follow with a past participle @verb ending in +Aed-Bou are li$ely using passive voice. )eres a list of e'amples to watch out for3

The offer is re(ected.

The offers are re(ected.The offer has been re(ected.The offers have been re(ected.The offer was re(ected.

f. The offers were re(ected.

g. The offer@sB had been re(ected.h. The offer@sB will be re(ected.i. The offer@sB will have been re(ected.

(. The offer is being re(ected.

$. The offers are being re(ected.

l. The offer was being re(ected.m. The offers were being re(ected.

otice that none of the above e'amples included a sub(ect in the sentence, so we do not $now who is re(ecting the offers.

0oo$ out for sentences that end with a noun which follows the word +..-

0ample 93 Passive5 T-e offer was re:ecte . enn.4 he proper sub(ect, +Lenny,- does not precede the predicate, +was re(ected.-

t-ere ever a goo time to use Passive Voice/es. :ut as a general rule, /oP

a particular circumstance you may prefer the sound or impact of a sentence when written in passive voice. For e'ample3

0ample ;3 +ctive5 <. client too= t-e iamon from t-e tra.4

0ample >3 Passive5 T-e iamon was ta=en from t-e tra.4

ere, notice that writing in passive voice allows you to omit mention of your client, perhaps deemphasi#ing your clients actions.owever, as you may be able to sense from this e'ample, when you use passive voice readers often get the impression that you arether @5B not a very good writer, or @6B not being straight forward. *o, when you intend to be straight forward, avoid using passive voice.







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ommas semicolons an w-at not

here is far too much to try to say about comma usage and other common grammar pitfalls here. I am not a grammarian, so Igularly see$ out resources to clean up the many grammatical errors that manage to find their way into my legal writing. ssuming that

ou are not a grammarian either, you should also see$ out such resources.

he %urdue 7nline Writing 0ab has an e'cellent resource for basic comma usage. I strongly suggest that you use it as a resource.While you are at it, be sure to tac$le the semicolon and colon as well.

you are so inclined, you should e'plore some of the countless other online writing resources that may aid you in your writing.

ronouns

e very cautious about pronoun use. 7ften, when you use a pronoun instead of the actual noun that you are replacing, the meaning of our statement becomes thoroughly obscured. Whenever you are unsure as to whether the use of a pronoun will ma$e your writing tooague or confusing, the safest bet is to use the actual noun instead, even if that means that your writing will be somewhat repetitive.

or e'ample, HJs. Lones told Js. *mith about her plans, and then she hurried to the scene of the crime.H This sentence does not clearlyonvey who hurried to the scene of the crime. For that reason, using HsheH rather than the name of the person who hurried to the scene

the crime is a bad idea.

etting starte wit- writing a <emo

cluded in this section are basic guides to writing each of the main sections of a legal memorandum. There is no one way to write aemo, and you should feel free to e'periment with other methods. )owever, if you follow the advice here, you should not stray too far om most attorneys e'pectations.

ote that throughout this section, I have included e'cerpts from one of my student4s assignments regarding whether or not a fictitiousent could succeed with a misappropriation of trade secrets claim. These e'cerpts should serve as a decent model for how to write agal memorandum.

efore you get started writing your memo, and throughout the legal writing process, consider the following3

:e aware of who you are writing to. When you $now who will be reading your memo, then you should cater your writing style to theader4s preferences. Whether a (udge, supervising attorney, nonAprofit agency, or legal writing instructor, your reader is your priority. If

our audience wants you to include a detailed facts section, you should do so. If your supervisor tells you that you need not include acts section, then do not include one. The same is true regarding writing style, grammar usage, the level of bac$ground you provide

oncerning the area of law, etc. Cour audience should dictate your approach to legal writing.

When writing a legal memo, chances are that your reader will want an Hob(ectiveH memo, which plainly e'plains the legal issue atand and, if appropriate, analy#es the li$elihood of success for a client or potential client with regard to that issue. n ob(ective memohould not be overly argumentative or doctrinaire. Cou are presenting your best, most honest estimate of what the law is and how ithould be applied to the facts at hand.

7nly address the issues that you set out to address. Identifying the issues that you will address in a memo is a crucial preliminaryep. Cou want to narrow down the scope of your memo as much as possible. 7nce you have done so, you must stic$ to the issuesat you present in your memo. 2o not get side trac$ed by related @or unrelatedB issues. Cou may ma$e reference to other issues of

oncern, but you should only discuss and analy#e the issue or issues that you identify at the start of your memo.

:e as concise as possible, but not at the e'pense of being thorough. In practice, attorneys have very little time to read lengthy legalemos. :e as concise as you can. *till, do not sacrifice necessary detail. In this regard, clear and detailed headings in your 2iscussion

ection help to quic$ly guide the reader through your memo.

7rgani#e your memo according to the relevant legal rules. 7nce you identify the proper legal issue, analy#e the law and identify theppropriate rules that govern that legal issue. Jost legal rules are made up of subArules<elements<components. 1et to $now these subAles as well as you can and organi#e your legal analysis according to the structure of the legal rule.

Ja$e your memo as easy to understand as possible. 0egal writing should not be convoluted and impossible to understand. 2raftnd revise your memo again and again until you are confident that an average reader could read through your memo and understand'actly what you are attempting to convey.

emo Outline








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o3 rom3ate3e3 )<O(+*!#<

sue@sB:rief single sentence issue statement, which appropriately defines the legal question addressed and includes a few relevant facts

at go to answering that legal question.

rief nswer @sB:rief answer to your issue statement that begins with a HyesH or a HnoH and follows with a succinct e'planation of your basis for that

nswer, preferably including the facts that support your conclusion.

acts*uccinct statement of facts that includes all facts that you analy#e in your discussion section and any other facts necessary for

levance.

scussion!mbrella paragraph@sB outlining your discussion section, introducing the various topics you will address below @usually in the form of

atements of the controlling legal rules that you analy#e belowB.

*ubsection@sB A Cour heading should be a statement of your &onclusion to the first legal rule you are analy#ing.

R Cour first sentence of your analysis should clearly state the applicable ule. Cour second and possibly third sentence shouldovide and E'planation of the ule, which serves as a road map to your reader by informing your reader of the topics that you are

oing to address in the remainder of your analysis section.R Following your introductory paragraph comes your first analysis paragraph, which you should start with a topic sentence that

irrors the first topic that you listed in your E'planation of the ule above. Following your topic sentence, you should analy#e casesat discuss that topic, and you should then compare the facts of your cases to the holdings and facts of the cases that you discussed.

R Cou will li$ely have a number of analysis paragraphs, depending on the nature of your legal issue. If the legal issues are comple',ou may choose to brea$ up your analysis by subsections.

R Cour final paragraph<sentence should succinctly repeat your &onclusion for this analysis section.

*ubsection@sBepeat above.

. *ubsection@sBepeat above.

onclusion

A A A A A A A A A A A

ample 7utline3)<O(+*!#<

sueWhether 0inda %etersen, owner of %etersen %ilates, Inc. fitness center @H%%IHB and developer of a unique personali#ed %ilates

aining method, has a claim against le'andria 2imitri, a former %%I employee, for misappropriation of a trade secret resulting from Js.

mitri4s unauthori#ed use of a similar training method at another fitness center.

rief nswer Ces, a court would most li$ely find that Js. %etersen4s personali#ed %ilates plan method could be a trade secret and Js. 2imitri4s usethis method at another fitness center could constitute misappropriation of that trade secret because Js. 2imitri should have $nown

at her acquisition of the method was improper and Js. 2imitri used the method without Js. %etersen4s e'press or implied consent.

actsMMInclude concise e'planation of factsOO

scussion


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http://legalwritingtips.blogspot.com/2009/12/discussion.html

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The validity of Js. %etersen4s claim for trade secret misappropriation depends upon whether @5B the %%I *ystem could be a tradeecret, @6B Js. 2imitri should have $nown that her acquisition of the %%I *ystem was through improper means, and @8B Js. 2imitri usede %%I *ystem without Js. %etersen4s consent. These issues are governed by the &olorado !niform Trade *ecrets ct @H&7 !T*HB,.*.. S ?A?9A5=6 @6==B.Jineral 2eposits 0imited v. igan, ??8 %.6d >=>, >=D @&olo. pp. 5DB. Whether the %%I *ystem is a trade

ecret and whether Js. 2imitri4s acquisition and use of the %%L *ystem constituted misappropriation are questions of fact. 1oldessenger, Inc. v. Jc1uay, 8? %.6d =?, 55 @&olo. pp. 5?B" %owell %roducts, Inc. v. Jar$s, 9D F. *upp. 59>, 59D6 @2. &olo.

>B.

court woul li=el. fin t-at Petersen"s PP$ '.stem constitutes a trae secret4

a4 <s4 Petersen"s PP$ '.stem was not =nown outsie of -er usiness4 MMnalysis in the form of &E&OO4 <s4 Petersen"s emplo.ees i not =now -ow t-e PP$ '.stem operate4MMnalysis in the form of &E&OOc4 <s4 Petersen too= ae?uate measures to protect t-e trae secret4MMnalysis in the form of &E&OO

<s4 !imitri s-oul -ave =nown t-at s-e improperl. ac?uire t-e PP$ '.stem4MMnalysis in the form of &E&OO

4 <s4 !imitri use t-e PP$ '.stem wit-out <s4 Petersen"s consent4MMnalysis in the form of &E&OO

onclusion

Js. %etersen should succeed with her misappropriation of trade secret claim against Js. 2imitri because @5B Js. %etersen4s %%Iystem is li$ely a trade secret, @6B Js. 2imitri acquired Js. %etersen4s %%I *ystem through improper means, and @8B Js. 2imitri usede %%I *ystem without Js. %etersen4s consent.

sue 'tatement

sue statements or Questions %resented should, in a single sentence, clearly articulate the issue addressed in your memo.

Cou will $now whether the statement is sufficiently clear if answering the question in either the affirmative or the negative fully resolvese issue at hand. In other words, your issue statement should be able to be answered, in a word, with a +Ces- or a +/o.- If not, then

our statement is not refined enough. Effectively refining your issue statement requires an intimate understanding of both the relevantcts and law.

In stating the issue, try to mention several of the most salient facts relating to the issue. This provides the reader with some conte't.

1enerally, if you are addressing more than one issue, separate the issues into separate, single sentence paragraphs, comporting toe advice above.

*ample Issue *tatement3 @Jisappropriation of trade secretB

hether 0inda %etersen, owner of %etersen %ilates, Inc. fitness center @H%%IHB and developer of a unique personali#ed %ilates trainingethod, has a claim against le'andria 2imitri, a former %%I employee, for misappropriation of a trade secret resulting from Js.mitri4s unauthori#ed use of a similar training method at another fitness center.

7TE3 The sample Issue *tatement above addresses 7/E issueAAwhether Js. %etersen4s program constitutes a trade secret. 7f ourse, whether the program is a trade secret involves a number of more discrete subAissues, which you would address in your tradeecret analysis section in separate subsections. The facts included within the issue statement give the reader some conte't regarding

ow you will analy#e the legal issue.

rief +nswer

our :rief nswer should begin with a simple +Ces- or +/o- and should include a succinct, preferably one sentence, e'planation of your asoning. *everal sentences may be necessary, but try to be as concise as possible. Include mention of the more salient facts thatlate to the legal issues involved to assist the reader in understanding your reasoning.

*ample :rief nswer3@nswering the sample provided in the Issue *tatementB











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es, a court would most li$ely find that Js. %etersen4s personali#ed %ilates plan could be a trade secret and Js. 2imitri4s use of theethod at another fitness center could constitute misappropriation of that trade secret because Js. 2imitri should have $nown that

er acquisition of the method was improper and Js. 2imitri used the method without Js. %etersen4s e'press or implied consent.

acts

hen drafting your facts section3

Include all of the relevant facts, including facts necessary to provide the reader with sufficient conte't.

:e sure to include any facts that you discuss later in your memo.

:e clear and succinct.

While being succinct is very important, if you have a fact intensive issue, then you will need to be careful to fully develop the

cts section.

!se plain language and active voice.

1enerally, organi#e your facts chronologically.

2o not be argumentative, but frame the facts in a way that is favorable to your argument.

Ueep the governing legal standards in mind when drafting your facts section. The legal issues at hand largely inform which facts

e most relevant.

If useful, brea$ up the facts section by using thematic headings, particularly where the facts section is lengthy.

!iscussion

This is the heart of your memo. )ere is where you discuss<analy#e the issue at hand in detail.

:egin your 2iscussion section with an !mbrella %aragraph that provides an overview of the law. In providing that overview, start off th a broad statement of the law, then narrow down to the more finite elements of the law and the issues that you will discuss in theemo.

Whenever possible, brea$down your discussion of the law into separate subAissues @and corresponding subsectionsB based on thegal standards at hand. This helps the reader to understand the particulars underlying the law and what is necessary to bring a

uccessful claim.

hus, you will start your 2iscussion section with an !mbrella %aragraph and then delve into your analysis with separate subsections asppropriate, each identified with separate headings @see nalysis *ubsectionsB.

rganiAing .our argument

ou must organi#e your discussion of the law clearly and logically to allow the reader to easily follow your rationale. 1enerally, you

hould organi#e your discussion according to the structure of the relevant legal rules. If the broad legal issue you are analy#ing has four ain subparts, then organi#e your analysis into four main subparts.

though you can use traditional paragraphing and narrative to separate your discussion of each of these subAissues, I stronglycommend using numere or lettere sections to ma$e it easier for your reader to follow your analysis. Thus, each numbered

ubsection will address one subAissue, and one subAissue only.

hile each of these subAsections relate to each other in some capacity, you should treat eac- susection istinctl.. 7nce you haveo$en down your 2iscussion into separate subsections, you have demonstrated to the reader that the relevant rule at hand is made updifferent elements. Each subsection addresses one, and only one, of those elements. 2o not confuse the reader by either discussing

ne of the other elements that you have identified, or by discussing the law in more general terms. *trictly discuss the element identifiedthe start of the subsection and how that element relates to the the ultimate determination in terms of satisfying the law.


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sccussion #mrella Paragrap-

mrella4 The first paragraph of your 2iscussion will serve as an +umbrella- paragraph where you provide an overview of the relevantea of law and a road map that shows the reader what your memo will address and the structure by which you will address the issueshand.

:egin with a roa discussion of the law, and then narrow your discussion as appropriate.

When providing an overview of the particular law at hand, try to brea$down your e'planation of the law into separate

ements or factors that you will analy#e in your memo. These +elements- or +suBissues- are li$e ingredients A together, they ma$ep the law. :y clearly separating out and identifying each of the elements of the law, you provide the reader with a much clearer nderstanding of how the law operates and therefore of the li$elihood of success in the particular circumstance at hand.

When possible, numer these separate components of the law when you present them in your umbrella to ensure that the reader entifies the subAissues as being distinct from each other. Ideally, you will organize your discussion in the same manner and order asou presented them in your umbrella paragraph . Therefore, the clearer your statement of the rule and its components in your umbrella,e easier your reader will follow your analysis.

Cour umbrella paragraph could also be a good place to inform the reader of the stanar of review A the manner by which a courtll consider each element of the law. In this regard, it is important that you clearly e'plain what is necessary to succeed with regard toe law generally and with regard to each element of the law specifically. Just you satisfy the requirements of every subAissue to

ucceed 7r do you have a balancing test that only requires you to consider each of the factors and weigh the totality of the evidenceWho has the burden of proof Is the issue one of fact or one of law Cou need not answer all of these questions, but they are thepes of procedural issues that may belong in your umbrella paragraph.

:eyond a statement of the law and of the standard of review, you may provide additional information as you feel is appropriate, butfrain from getting too specific as you will delve into each of the subAissues in more detail below.

*ample !mbrella %aragraph3

@Trade *ecret e'ample from Issue *tatementB

scussion

The validity of Js. %etersen4s claim for trade secret misappropriation depends upon whether @5B the %%I *ystem could be a tradeecret, @6B Js. 2imitri should have $nown that her acquisition of the %%I *ystem was through improper means, and @8B Js. 2imitri usede %%I *ystem without Js. %etersen4s consent. *ee &olorado !niform Trade *ecrets ct @H&7 !T*HB, &..*.. S ?A?9A5=6 @6==B"ineral 2eposits 0imited v. igan, ??8 %.6d >=>, >=D @&olo. pp. 5DB. Whether the %%I *ystem is a trade secret and whether Js.

mitri4s acquisition and use of the %%I *ystem constituted misappropriation are questions of fact. 1old Jessenger, Inc. v. Jc1uay, 8?6d =?, 55 @&olo. pp. 5?B" %owell %roducts, Inc. v. Jar$s, 9D F. *upp. 59>, 59D6 @2. &olo. 5>B.

7TE3 :ased on this umbrella paragraph, the first section of the memorandum should concern whether the method at issue constitutestrade secret, and a heading such as the following would be suitable3

<s4 Peteresen"s PP$ '.stem is li=el. a trae secret4

nal.sis B ,()+,

()+, Overview @&onclusion, ule, E'planation of ule, nalysis, &onclusionB. This is the heart of your memo. t this point, youave introduced the reader to the issues at hand, the underlying facts, and a brief overview of your argument. Further, you haveecided how to structure your argument in terms of sections and subsections. /ow, based on that organi#ation, you are going to

naly#e each of the subAissues that you have identified using the &E& modelAAone &E& per subsection.

ac=le one suBissue at a time4 ccording to this model, you will craft analysis based on the &E& model to discuss each individualement<subAissue, one at a time. 7ne subAissueN7ne &E&.

()+, 'tructure4 s mentioned above, &E& stands for &onclusion, ule, E'planation of ule, nalysis, &onclusion. The &E&odel @li$e other models for legal writing, e.g., I&B, provides a simple template to guide you in structuring your analysis so that your nalysis is easier for the reader to follow. Follow the hyperlin$s below to learn more about each element of &E&.

terms of actually laying out your ,()+, analysis, I recommend the following3











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)eading @&onclusionB3 !se your ,onclusion as the heading to your subsection. emember, this &onclusion should only spea$the particular subAissue that you are analy#ing. Thus, if your memo addresses whether your client committed a crime, the larger issue HWhether 2efendant Lones committed the crime.H )owever, if you divided your memo into two sections to address the two mainements of the crimeAAi.e., mens rea and actus reusAAthen, in your mens rea section, you should limit your &onclusion to whether your ent had the requisite mens rea to be found guilty of committing the crime. Thus your &onclusion would read3 H:ased on the evidence

efore the court, 2efendant Lones did not have the necessary mens rea.H Jind you, this is totally fictitious. The point is strictly thatAAinour fictitious mens rea subsectionAAyou would not have a &onclusion that simply stated, HThe 2efendant cannot be found guilty of theime,H because that would be too broad. Cou must limit your conclusion to the subAissue at hand.

First %aragraph @&onclusion, ule, E'planationB3 Cour first sentence of the paragraph should clearly state the relevant ( ule4emember, as with the &onclusion, this ule should spea$ only to the specific subAissue that you are analy#ing @e.g., H (ury must findat 2efendant Lones had criminal intent in order to convict him of the crime.H nd, once again, this is totally fictitious.B. Following your ngle sentence rule, your secon sentence should provide the reader with an )0planation of the ule, which could be anywhere fromsingle sentence to many sentences. Ideally, your E'planation would include a list of factors<considerations that you plan to discuss ine remainder of your subsection. If you include such a list, then you should organi#e the remainder of your subsection according to thatt of factors.

nalysis %aragraphs3 Following your introductory paragraph, you should separate your +nal.sis into individual, thematicaragraphs, with each paragraph discussing a separate aspect of the subAissue that is made clear in the first sentence of eacharagraph by use of effective topic sentences, hopefully corresponding to the list of factors that you articulated in your E'planationbove. In each of these paragraphs, you should include discussion of relevant case law, and you should compare that case law to your ent4s circumstances.

&onclusion3 estate your , onclusion at the end of the subsection in a single, one or two sentence paragraph.

your analysis of the issue at hand is incredibly brief, perhaps because the particular subAissue does not require much discussion, thenou can ma$e your entire &E& into a single paragraph.

ollow the lin$s below for more detailed tips on drafting each element of ,()+,.

@,onclusionCD(uleCD)0planationC@+nal.sisC@, onclusionC

onclusion DHeaingC

@,onclusionC4 The first sentence of your analysis<&E& is your &onclusion.

Cour &onclusion should only be a single sentence.

Cour conclusion should onl. aress t-e suBissue at -an . That is, when stating the &onclusion to a subsection, you are notating a broad conclusion that answers your Question %resented @unless the issue does not feature subArulesB. Instead, you are onlyoviding an e'planation of whether the facts at hand satisfy the elements<subArule at issue in the subsection itself.

In your &onclusion, use specific language from t-e corresponing legal rules @often referred to as Hterms of artHB or standards toa$e the lin$ between your &onclusion and the law obvious to the reader.

If possible, incorporate a few salientErelevant facts into your &onclusion that relate to the particular subAissue at hand. )owever, doot allow your &onclusion to become endlessly long.

ule

D(uleC4 Cour ule is a succinct statement of the law governing the specific legal element<factor at issue in the subsection.

ssuming you included your &onclusion as your heading to the subsection, .our (ule s-oul e t-e first sentence of .our firstaragrap- in t-e susection.

$entif.ing .our (ule is easier said than done. s a preliminary matter, there is the <acroB(ule t-e ig picture that governs therger issue that you are addressingAAthe issue that you introduced in your Issue *tatement. This JacroAule is what you e'plained


http://legalwritingtips.blogspot.com/2009/12/conclusion_09.html

http://legalwritingtips.blogspot.com/2009/12/rule.html


http://legalwritingtips.blogspot.com/2009/12/explanation-of-rule.html

http://legalwritingtips.blogspot.com/2009/12/analysis.html



http://legalwritingtips.blogspot.com/2009/12/conclusion-2nd.html






























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iefly in your !mbrella paragraph, beginning with the broadest aspect of the rule. It is the larger ule that controls the area of law.owever, most <acroB(ules are mae up of a numer of <iniB(ulesAAsmaller rules that together comprise the larger rule, li$egredients in a coo$ie recipe. nd most legal disputes involve arguments over how an arbiter should interpret these JiniAules in aven conte't. In the course of composing your &E&, you will mostly be focused on the individual JiniAules that comprise the larger acroAule. Thus, li$e your &onclusion, your ule is not the rule that governs the central issue that you are addressing in the memo aswhole @unless your memo only has a single analysis sectionB. ather, your ule is actually a suBrule t-at onl. spea=s to t-eement at issue in t-e susection at hand, which you should have identified in your !mbrella as a component of the macroArule that

our memo addresses as a whole. Thus, tailor your subsection ule accordingly, addressing only the subAissue as it relates to theacroAissue.

!istill t-e law to ientif. t-e rule . :eyond differentiating between your JacroA and your JiniA ules, you also need to be careful toccurately depict the nature of the ules that you are analy#ing. Cou will read statutes, regulations, and cases that often spea$ to theame legal issue, but with different language, standards, and criteria. Cour (ob is to distill these varying sources of law to come up withhat you thin$ I* the law. This means giving appropriate weight to various sources of law and identifying how those various sourceonverge on the particular issue that you are addressing.

!o not overstate .our rule. 7ne of the most common pitfalls for legal writers is to end up overstating the law. For e'ample, if your verall test is a balancing test, and no single subAissue is dispositive, then write, +The court will consider . . . .- :ut if the rule isspositive, meaning that a plaintiff J!*T satisfy the element, then ma$e that clear by writing something to the effect of +To succeed withis claim, a plaintiff must prove . . . .- If you overA or understate the rule, then your reader will not properly understand the law.

:e sure to cite legal aut-orit. in support of .our rule. Without citing some sort of legal authority, your ule may as well be, quiteerally, your ule, and not that of the of law. &iting case law assures your reader that you are not (ust ma$ing stuff up, which lawyers at

mes attempt to do.

,omining a conclusion an a rule into a single sentence can be tric$y, but it can also be compelling, particularly with a solidtation followed by a parenthetical that clearly states the law.

*ample ule3@Trade *ecret hypothetical from Issue *tatementB

To succeed with her claim for misappropriation of a trade secret, Js. %etersen must first prove that her %ilates training method is aade secret. %orter Industries, Inc. v.)iggins, >D= %.6d 588, 5895 @&olo. pp. 5

0planation of (ule

D)0planationC4 Cour E'planation, which immediately follows your ule, should e'plain relevant nuances of the law and the various

ctors that a court will li$ely e'amine when considering the subAissue.

Try to $eep your E'planation as rief as possible, only including further discussion of the ule that is necessary for the reader tonderstand the nature of the law. Cour E'planation of the ule can be as short as a single sentence and should probably be no morean three to four sentences, unless the issue is particularly comple' and warrants a lengthier discussion.

!se your E'planation to ientif. t-e factors t-at a court woul li=el. consier when analy#ing the subAissue at hand. In this way,our E'planation is li$e a miniA!mbrella, providing the reader with a road map for this particular subArule. Identifying the relevant factorsat underlie your subArule is not always easy. *ometimes the law identifies these factors for youAAperhaps because the statute at issue

ontains discrete requirements. Jore often, you must identify the relevant factors at issue by engaging in e'tensive research. &ourtsll often articulate what factors control an issue, but often times different courts will use different factors. Cour (ob is to distill whatctors you thin$ are most relevant and to inform the reader accordingly.

7nce you have identified the relevant factors, present t-e factors in a list to ma$e it clear to the reader what you will be analy#ingroughout the subsection. I recommend a numere list to draw attention to the factors that you plan to discuss and to ensure that the

ader understands that the factors are distinct form one another.

Jost importantly, once you have laid out factors in your E'planation, proceed to iscuss eac- factor in separate +nal.sisaragrap-s in t-e same orer t-at .ou liste t-em in .our )0planation . t the start of each of those nalysis paragraphs, includeear topic sentences to alert the reader of the factor that you are discussing, using common language in both your E'planation and your pic sentences at the start of your nalysis paragraphs.

*ample E'planation3

@E'plaining the Trade *ecret subArule from uleB













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determining whether Js. %etersen4s %%I *ystem is a trade secret, a court will weigh the e'tent to which @5B the %%I *ystem wasnown outside of %%I, @6B the %%L *ystem was $nown to employees within %%I, @8B Js. %etersen attempted to guard the %%I *ystem4secrecy, @9B %%I increased in value by having the %%I *ystem remain secret, @;B Js. %etersen e'pended time and money in developinge %%I *ystem, and @>B other fitness businesses would need to e'pend time and money to acquire or develop a similar system.orter Industries, Inc. v. )iggins, >D= %.6d 588, 5895 @&olo. pp. 5D9B. &ourts balance facts relating to each of these factors, and none factor is dispositive of whether a trade secret could or could not e'ist. )arvey :arnett, Inc. v. *hidler, 88D F.8d 556;, 5586 @l=th &ir.==8B.

7TE3 In the above e'ample, the E'planation is based on the relevant case law and is quite detailed. :ased on the advice above, you

ould model the remainder of your discussion in this subsection to mirror these factors, doing so by including subsections or paragraphsat deal with each of these factors oneAbyAone.

nal.sis

D+nal.sisC. Following your opening paragraph to your subsection are your nalysis paragraphs.Follow the Factors that Cou %resented in Cour E'planation. The easiest way to ensure that your nalysis section is well organi#ed

nd compelling is to follow the road map that you should have provided in your E'planation. If you identified relevant Factors in your 'planation, then simply discuss each of those factors, one by one in separate paragraphs @or subsectionsB in your nalysis section.or this reason, you should ma$e sure that your E'planation of your ule effectively lays out the specific factors that you will address inour nalysis.

uleAbased reasoning. nother benefit to organi#ing your nalysis according to the factors that you identified in your E'planation isat you will then naturally organi#e your writing by factor or theme, according to the nature of the law, and not simply by case. 0egal

riters often refer to this thematic approach as HruleAbased reasoning.H In essence, using ruleAbased reasoning, you will analy#e theule based on the legal factors or elements that courts consider when ma$ing determinations based on that rule. 7nce you haveentified those factors and chosen the factors that you wish to discuss, you will analy#e those factors oneAbyAone. Writers who do notonsciously adopt the ruleAbased reasoning approach often analy#e the issue at hand by simply discussing relevant cases oneAbyAone,ten discussing one case per paragraph. That is not a terrible approach, but it ma$es your nalysis seem more anecdotal and shallow A

ased on a few select cases rather than on the intricacies of the law.

%aragraphing or *ubsections. Try to discuss each one of the factors identified in your E'planation in individual paragraphs. If youel that you have too much to discuss, then you might consider brea$ing your discussion out into further subsections. It is fine to haveultiple layers of subsections, but it can get confusing to the reader.

7rgani#ing Cour nalysis %aragraphs. Cou should begin each analysis paragraph with a topic sentence that clearly identifies thelevant theme or factor. Follow the topic sentence with a discussion of controlling case law. Then apply that case law to your facts byscussing the relevant similarities or differences between the case law and your case. Whenever possible, you should use more thanne case per theme as it ma$es your argument more convincing, but you will sometimes find that you only have one case to discuss for

given theme<paragraph, which is fine. Thus, as a general rule for organi#ing your nalysis paragraphs, as mentioned above3

a. Topic *entence. :egin with a topic sentence that identifies the theme of the paragraph"b. %recedent &ase 0aw and 7ther elevant uthority. Following the topic sentence, briefly discuss precedent case law relating to the

eme at hand" andc. Cour Facts. fter discussing precedent case law, usually within the same paragraph, discuss the facts from your case that relate to

e topic addressed within the paragraph.

Topic sentence. :egin each nalysis paragraph with a clear topic sentence, and, in each paragraph, only discuss facts and casesat relate to that topic and that topic alone. It is impossible to stress this latter point enough. If you stray from the topic at hand, your riting will quic$ly become confused and less convincing.

%recedent case law. fter your topic sentence, discuss relevant case law to demonstrate how courts have previously treated thesue, preferably in situations relatively similar to yours. :e sure to3

a. &ite to cases that address the specific legal subAissue at hand, preferably with fact patterns that are relatively similar to yours,

b. 2iscuss relevant facts from those cases A the facts that pertain to the subAissue that you are discussing in the subsection, andc. Include the holdings of each case that you discuss so the reader $nows which way the court decided based on the facts from that

ase, which will allow the reader to compare each of those cases to your case.d. Jodel format to discuss cases. I have found that the easiest way to succinctly discuss a case in a single sentence is with the

llowing format3 In Mcase nameO, the court held Mholding as to relevant legal issueO because Mstatement of facts that caused the court tole as it didO @e.g., HIn *mith v. Lones, the court held that the defendant should have $nown that his conduct would cause the plaintiff ury because the plaintiff as$ed the defendant to cease threatening her as the threats were causing her severe distress.HB. Cou may of

ourse analy#e cases using multiple sentences, and you often should do so. )owever, the more succinct you are, the easier it is for theader to compare the cases that you are citing to the facts of your own case that you are analy#ing.

s you feel more comfortable, you can combine your discussion of two cases into a single sentence, or you can combine your scussion of a case with your analysis of your facts all in a single sentence. )owever, when you are (ust getting started, try to stic$ to







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ne case per sentence. dditionally, you can eventually e'periment with squee#ing analysis into crafty citations by using effectivearentheticals.

/7TE3 While I recommend that you first discuss controlling case law and then discuss your facts, you are welcome to try reversingat order.

Cour client4s facts. fter you have introduced precedent case law, compare and contrast your client4s facts to the facts and holdingsat you presented from those cases to demonstrate your client4s li$elihood of success. The aim is for you to compare<analogi#e and

ontrast<distinguish your facts from those of precedent cases to demonstrate to the reader which way the court is li$ely to hold.

:e *ure to &ompare and &ontrast. Cou will benefit from discussing cases where the court ruled favorably on an issue, as well asases where the court ruled unfavorably.A&ompare<analogi#e. &ompare your facts to the cases where the court ruled favorably by showing that your case is similarly strong,

erhaps even stronger.A&ontrast<distinguish. &ontrast your facts to the cases where the court ruled opposite from what you are arguing by showing that your

ase is different and will therefore be more li$ely to receive favorable treatment from the courts.

*pectrum of cases. I li$e to thin$ of precedent cases on a spectrum that ranges from definite loser to definite winner. 7nce you haveollected enough cases to flesh out the spectrum, you should determine where in that case law spectrum, based on your facts, you cases. 2iscuss the case law in comparison to your case to demonstrate the li$elihood of success for your client, analogi#ing to the caseshere the court ruled favorably and distinguishing from those where the court ruled unfavorably.

A A A A A A A A A A A A A A A A A ' A A A A A A A A A A A A A A A A A A V

efinite Cour 2efinite

oser &ase Winner

=. epeat. epeat this process for each additional theme<factor that you discuss within the subsection. emember, each paragraphhould include a topic sentence that clearly articulates the theme you are discussing. nd, most importantly, stic$ to that themeroughout the paragraph. 2o not stray into topics that you should discuss elsewhere.

. %aragraphing. Try to $eep your paragraphs under one doubleAspaced page. dditionally, if your analysis is confined to a single,oncise paragraph, you should combine it with your ule, E'planation, and second &onclusion to form a single paragraph, rather thaneparating your &E& into three separate paragraphs.

*ample nalysis3

@Trade *ecret hypotheticalB

/7TE3 )ere, the analysis is bro$en down into a subsection to correspond to the first factor listed in the E'planation of the ule. Thenalysis is organi#ed as a miniA&E&, with @5B a conclusion used for the subAheading, @6B a miniArule<topic sentence used as the firstentence of the subsection is miniArule, @8B followed by a brief elaboration<e'planation of the rule, @9B followed by the core analysis A firstase law discussion of the factor and then discussion of the client4s facts that relate to the factor @which you can repeat as appropriateB,nd @;B a repetition of the miniAconclusion.

E'ample 53

. Js. %etersen4s %%I *ystem was not $nown outside of her business.

In determining whether Js. %etersen4s %%I *ystem is a trade secret, a court would consider the e'tent to which informationertaining to the *ystem was $nown outside of her business. *ee ivendell Forest %roducts, 0td. v. 1eorgiaA%acific &orp., 6D F.8d 5=96,=9> @5=th &ir. 59B. Even where alleged trade secrets include elements that are $nown outside of the business, courts have still foundat such methods could constitute trade secrets. Id. In ivendell Forest %roducts, 0td., plaintiff designed a database that generated onA

emand, customerAspecific statistics. Id. at >;A>>. The appellate court reversed the trial court4s ruling that the database could not be aade secret because it had publicly $nown elements and held that, even if plaintiff s database contained publicly $nown elements,aintiff4s integration of such elements in a nonApublicly $now methodology gave plaintiff a competitive advantage and could thereforeonstitute a trade secret. Id. at 5=9>. In Js. %etersen4s case, although her client assessment method is $nown to current and former mployees, this technique, in con(unction with the %%I %rogram, is a methodology that is not $nown to the public. Furthermore, courtsave viewed evidence that a plaintiff is the e'clusive user of a business method as evidence that the method is not publicly $nown. *eearvey :arnett, 88D F.8d at 5585. The )arvey :arnett court found the fact that no other aquatic organi#ations taught plaintiff4s aquaticstruction program compelling in determining that the progranl was not publicly $nown. Id. In Js. %etersen4s case, the requests byness professionals for Js. %etersen to present her methodology at public conferences indicates that her %%I *ystem is not $nownmong her competitors.







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/7TE3 In the e'ample above, after introducing the topic<miniArule, the writer first discussed one case in comparison to her client4scts, and then discussed a second case, also in comparison to her client4s facts.

E'ample 63

&. Js. %etersen too$ sufficient precautions in guarding the secrecy of the %%I *ystem.

In determining whether Js. %etersen4s %%I *ystem is a trade secret, a court would consider the e'tent to which she too$ precautionsprotect the secrecy of her %%I *ystem. *ee /etwor$ Telecommunications, Inc. v. :oorA&repeau, ?= %.6d =5, =6 @&olo. pp. 5=B.

he /etwor$ Telecommunications court indicated that reasonable efforts may consist of advising employees of a trade secret4s secrecynd sharing information with employees only on a needAtoA$now basis. Id. plaintiff4s effort to patent or copyright a purported tradeecret may also be evidence of precautions ta$en to guard secrecy. *ee Jineral 2eposits, ??8 %.6d at >=?" 1ates ubber &ompany v.ando merican, Inc., F.8d D68, D8= @5=th &ir. 58B. In Jineral 2eposits, plaintiff had applied for a patent on its mining equipment.?8 %.6d at >=?. In 1ates ubber, plaintiff copyrighted its computer program. F.8d at D8=. :oth courts found that plaintiffs could haveade secrets. Jineral 2eposits, ??8 %,6d at >=?" 1ates ubber, F.8d at D8=. In Js. %etersen4s case, Js. %etersen provided Js.mitri with information about the %%I *ystem only on a needAtoA$now basis, Js. %etersen advised Js. 2imitri of the system4s secrecy

y telling Js. 2imitri about her plans to copyright the system so that no other fitness centers could use it, and Js. %etersen is wor$ingth an attorney to procure copyrights and patents on the %%I *ystem. These facts demonstrate that Js. %etersen is actively guardinge %%I *ystem4s secrecy.

court may weigh the fact that Js. %etersen has not had her employees enter into confidentiality or noncompete agreements againster. *ee )ert# v. 0u#enac 1roup, ;?> F.8d 55=8, 5556 @5=th &ir, 6==B. In )ert#, the court noted that plaintiff4s employee confidentialitygreements enhanced plaintiff4s claim that its manufacturing process was a trade secret. Id. )owever, the court e'plained that thereways are more security precautions that can be ta$en, (ust because there is something else that could have been done does not mean

at the efforts were unreasonable under the circumstances.H Id. at 5558. Thus, %%I4s lac$ of confidentiality agreements may detract froms, %etersen4s trade secret claim, but should not be dispositive in determining whether or not the %%I *ystem could be a trade secret.

/7TE3 In the e'ample above, the writer again starts with a topic sentence<miniArule, then more discussion<e'planation of the topic,llowed by specific reference to prior case law and discussion of her client4s facts. dditionally, the writer includes a second paragraphat features Hcounter analysis,H which mentions one of her client4s wea$er factual points, but concludes with the reassurance that theea$ness is not fatal.

onclusion D2nC

@,onclusionC4 t the end of each subsection, you should include a very brief &onclusion, which more or less restates the &onclusionou used at the start of your section. This should typically be its own paragraph and should be no more than one to three sentences.owever, if your nalysis section is a single paragraph, then you may simply include the &onclusion as a single sentence at the end of e paragraph.

onclusion

our &onclusion should be incredibly brief. t this point, you have analy#ed all of the necessary issues, so you need not rehash your guments again. Jerely restate your overall conclusion, similar to what you stated in your :rief nswer. Cour &onclusion can be as

hort as a single sentence, but should generally be no longer than three or four sentences. 2o not introduce any new issues, facts, or guments in your &onclusion A A unless to ma$e note of related factual or legal issues that you recommend loo$ing into more that youd not discuss in your memo.

n=s

Writing Tipsurdue4s 7nline Writing 0ab @7W0B%lain English )andboo$ @*E&Bainlanguage.govain English &ampaign @0ots of free guidesBuide to 1rammar and Writingroom$in4s legal writing tips @1eared to academic writingBements of *tyle, William *trun$, Lr. @5D>59>Bbout.com, *even Ways to Improve Cour 0egal Writingial %ractice Tips Weblog

egalWriting.netegalwritingpro.com

Legal (esearc-http3<<www.nyulawglobal.org<globale'<%hilippines.html, 6 /ovember 6=5;, 638= p.m.


http://owl.english.purdue.edu/owl/


http://www.sec.gov/pdf/handbook.pdf


http://plainlanguage.gov/

http://www.plainenglish.co.uk/free-guides.html


http://grammar.ccc.commnet.edu/grammar/

http://osaka.law.miami.edu/~froomkin/writingtips.html

http://www.bartleby.com/141/strunk5.html#13

http://legalcareers.about.com/od/practicetips/tp/practicetips.htm

http://legalwriting.net/

http://legalwritingpro.com/

http://www.nyulawglobal.org/globalex/Philippines.html






http://plainlanguage.gov/


http://grammar.ccc.commnet.edu/grammar/

http://osaka.law.miami.edu/~froomkin/writingtips.html

http://www.bartleby.com/141/strunk5.html#13

http://legalcareers.about.com/od/practicetips/tp/practicetips.htm

http://legalwriting.net/

http://legalwritingpro.com/

http://www.nyulawglobal.org/globalex/Philippines.html



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6 *ources of 0aw

here are two primary sources of the law3

*tatutes or statutory law A *tatutes are defined as the written enactment of the will of the legislative branch of the government

ndered authentic by certain prescribed forms or solemnities are more also $nown as enactment of congress. 1enerally they consisttwo types, the &onstitution and legislative enactments. In the %hilippines, statutory law includes constitutions, treaties, statutes proper

legislative enactments, municipal charters, municipal legislation, court rules, administrative rules and orders, legislative rules andesidential issuance.

Lurisprudence A or case law A is cases decided or written opinion by courts and by persons performing (udicial functions. lso

cluded are all rulings in administrative and legislative tribunals such as decisions made by the %residential or *enate or )ouseectoral Tribunals. 7nly decisions of the )ouse of epresentatives Electoral Tribunal are available in print as )ouse of epresentatives Electoral Tribunal eports, volume 5 @Lanuary 6D, 5DDA7ctober 8, 5=B to present. They will be availableectronically at the *upreme &ourt EA0ibrary and as a separate &2.

For Juslim law, the primary sources of *hariah are Quran, Sunnaqh, Ijma and Qiyas. Lainal 2. a#ul in his boo$

ommentaries and Jurisprudence on the Muslin 0aw of the hilippines @5D9B further stated there are new sources of muslim law, whichome (urists re(ected such as Istihsan or (uristic preference" !l"Masalih, !l Mursalah or public interest" Istidlal @customB and Istishab.eduction based on continuity or permanenceB.

lassification of Legal 'ources

rimary uthority is the only authority that is binding on the courts.

lassification . +ut-orit.

uthority is that which may be cited in support of an action, theory or hypothesis.- 0egal of materials primary authority are those that

ontain actual law or those that contain law created by government. Each of the three branches of government3 0egislative, E'ecutive

nd Ludiciary, promulgates laws.

he legislature promulgates statutes, namely3 ct, &ommonwealth ct, epublic ct, :atas %ambansa. E'ecutive promulgates

esidential issuances @%residential 2ecrees, E'ecutive 7rders, Jemorandum &ircular, dministrative 7rders, %roclamations, etc.B,

les and regulations through its various departments, bureaus and agencies. The Ludiciary promulgates (udicial doctrines embodied in

ecisions. We however need to clarify that the %residential 2ecrees or law issued by %resident Ferdinand E. Jarcos during Jartial 0aw

nd E'ecutive 7rders issued by quino %resident &ora#on &. quino before the opening &ongress in Luly 5D? can be classified as

gislative acts, there being no legislature during these two periods.

rimary uthority or sources may be further subdivided into the following3

Jandatory primary authority is law created by the (urisdiction in which the law operates li$e the %hilippines"

%ersuasive mandatory authority is law created by other (urisdictions but which have persuasive value to our courts e.g. *panish

nd merican laws and (urisprudence. These sources as used specially when there are no %hilippine authorities available or when thehilippine statute or (urisprudence under interpretation is based on either the *panish or merican law"

is in this regard that the collections of law libraries in the %hilippines include !nited *tates court reports, Wests national reporter

ystem, court reports of England and international tribunal, important reference materials such as the !merican Jurisprudence, Corpus

uris Secundum, #ords and hrases and different law dictionaries. *ome of these law libraries subscribe to the #estla$ and%or

e'is(e'is. The *upreme &ourt , !niversity of the %hilippines, !niversity of *anto Tomas and a number of prominent law libraries also

ave a *panish collection where a great number of our laws originated.

econdary authority or sources are commentaries or boo$s, treatise, writings, (ournal articles that e'plain, discuss or comment on

imary authorities. lso included in this category are the opinions of the 2epartment of Lustice, *ecurities and E'change &ommissionhttp3<<legalwritingtips.blogspot.com<, 6 /ovember 6=5;, 63=6 p.m.






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circulars of the )ang*o Sentral ng ilipinas. These materials are not binding on courts but they have persuasive effect and<or the

egree of persuasiveness. With regards to commentaries or boo$s, treatise, writings, (ournal articles, the reputation or e'pertise of the

uthor is a consideration. *ome of the authors of good reputation and considered e'perts in the field are &hief Lustice amon &.

quino and Lustice &arolina 1rino quino on evised %enal &ode or &riminal 0aw, *enator rturo J. Tolentino on &ivil law, &hief

ustice Enrique J. Fernando and Fr. Loaquin :ernas on &onstititional 0aw, %rof. %erfecto Fernande# on 0abor 0aw, Kicente Francisco,

hief Lustice Januel Joran on emedial 0aw, and Lustice Kicente bad *antos and *enator Lovito *alonga on International 0aw, etc.

lassification . 'ource

is important for legal research e'perts to $now the source where the materials were ta$en from. 7ne has to determine whether they

ame from primary @officialB sources or secondary @unofficial sourcesB. %rimary and secondary sources for the sources of law are found

the %hilippine 0egal Information esources and &itations section A part II A of the 6== !pdate.

rimary sources are those published by the issuing agency itself or the official repository, the +fficial azette. Thus, for epublic cts

nd other legislative enactments or statutes, the primary sources are the +fficial azette published by the /ational %rinting 7ffice and

e 0aws and esolutions published by &ongress. For *upreme &ourt decisions, the primary sources are the hilippine -eports, the

dividually mimeographed dvance *upreme &ourt decisions @discontinued by the *upreme &ourt effective Lanuary 6==B and the

fficial azette. %ublication of *upreme &ourt decisions in the +fficial azette is selective. &omplete court reports for *upreme &ourt

ecisions from 5=5 to the present can be found in the hilippine -eports.

he *econdary *ources are the unofficial sources and generally referred to as those commercially published or those that are notublished by government agencies or instrumentalities.

ome of the *econdary sources of statutes are the ital &egal /ocuments, published by the &entral :oo$ *upply, contains a

ompilation of %residential 2ecrees @5?8B. The second edition contains epublic cts. %rof. *ulpicio 1uevara published three boo$s

hich contain s the full te't of legislative enactments or laws namely3 a 0. ublic &a$s !nnotated @? vols.B , compilation of all laws from

=5 to 58;, bB. Common$ealth !cts !nnotated @8vos.B. compilation of laws from 58;A59; cB. The &a$s of the 1irst hilippine

epublic 23he &a$s of Malolos0 4565"4566. For the *upreme &ourt decisions, Supreme Court -eports !nnotated 2SC-!0, a secondary

ource, published by the &entral :oo$ *upply is more updated and popular in the legal community than the hilippine -eports, the

imary and official source. &itations in commentaries or boo$s, treatise, writings, (ournal articles, pleading and even court decisions

how *&s popular acceptance. The general rule is that in the absence of a primary source, the secondary source may be cited.

his was the primary rationale for the *&s popularity. There was no primary source for complete compilation of *upreme &ourt

ecisions for more than twenty @6=B years. The publication of the %hilippine eports by the /ational %rinting 7ffice ceased in 5>=s. It

as only in 5D6 when the publication of the %hilippine eports was revived by then &hief Lustice Enrique J. Fernando who requesteden %resident Ferdinand E. Jarcos to ta$e charge of its publication with special appropriation in the Ludiciarys annual budget.

With the advent of the new information technology, electronic or digiti#ed sources are popular sources of legal information for the

llowing reasons3 aB updated legal information is readily available and bB the search engines used facilitate research, and cB no

omplete and update manually published search tools for statute and case law. These electronic sources are in the forms of &2 7J*,

nline or virtual libraries of the issuing government agency or instrumentality and the now growing websites of law offices such as &han

obles 0aw Firm 0ibrary and Laromay, 0aurente 0aw 7ffice 7n 0ine 0ibrary, or law schools such as the rellano 0aw Foundation

awphil. /et. In case of conflict between the printed and electronic sources, the printed version coming from the issuing government

gency prevails. This policy prevails even for the *upreme &ourt EA0ibrary, where it is e'plicitly provided in its website.

egal research for statute law in the %hilippines benefited remar$ably from the use of the latest technology due to two ma(or problems3

no complete and updated published or printed search tools or law finders for statute law and bB no complete compilation of statute

w from 5=5Apresent were available. %roblems of the publication of compilations of statute law or the e'istence of the fullAte't of

residential 2ecrees was even brought to the *upreme &ourt in the Tanada v. Tuvera, 1.. /o. >85;, pril 69, 5D; @66= %hil 966B,

ecember 6, 5D> @59> *& 99>B case. This case which was first decided before the bloodless revolution popularly $nown as

eople %ower or the E2* evolution was modified in the 2ecember 6, 5D> or after the %eople %ower or the E2* evolution.

till, with regards to *tatute 0aw in the %hilippines, the other problem is how to classify sources published in the newspapers. *ince

D?, based on the definition of primary and secondary source, they may be considered as primary sources pursuant to E'ecutive 7rder

o. 6==, s. 5D? which provides that laws become effective fifteen @5;B days after publication in the +fficial azette or in two

ewspapers of general circulation. In case of conflict between the two versions, the version of the +fficial azette holds.


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n finding the law, our ultimate goal is to locate mandatory primary authorities which have bearing on the legal problem at hand. If these

uthorities are scarce or none'istent, our ne't alternative is to find any relevant persuasive mandatory authority. If our search is still

egative, the ne't alternative might be secondary authorities. There are however instances where the secondary authorities, more

articularly the commentaries made by e'perts of the field, ta$e precedence over the persuasive mandatory authorities. With the

vailability of both, using both sources is highly recommended.

assification . ,-aracter

his refers to the nature of the sub(ect treated in boo$s. This classification categori#es boo$s as 3 aB *tatute 0aw :oo$s, bB &ase 0awoo$s or 0aw eports, cB a combination of both and dB +0aw Finders.-

aw Finders refer to inde'es, citators, encyclopedias, legal dictionaries, thesauri or digests. ma(or problem in the %hilippines is that

ere are no upAtoAdate 0aw Finders. Federico Jorenos hilippine &a$ /ictionary , the only available %hilippine law dictionary was last

ublished in 5DD, and, Lose gaton *ibals hilippine &egal 3hesaurus which is li$ewise considered a dictionary was published in

D>. Foreign law dictionaries li$e )lac*s7 &a$ /ictionary, #ords and hrases are used as alternate. To search for legal information,

gal researchers go online virtual libraries such as the *upreme &ourt EA0ibrary @http3<<elibrary.(udiciary.gov.phB, &han obles Kirtual

aw 0ibrary, and the different databases in &2A7J format from &2 sia Technologies sia Inc. The databases developed by &2 sia

clude not only the compilation of 0aws @statutesB and Lurisprudence, but also include a compilation of legal information that are not

vailable in printed form such as 7pinions of the 2epartment of Lustice, *ecurities and E'change &ommission and :ang$o *entral

&entral :an$B rules and regulations. *earch engines used in these databases answer for the lac$ of complete and updated inde'es of

gal information. In this regard, effective legal research can be conducted with one cardinal rule in mind3 H0WC* *TT F7J T)E

TE*T.H The e'ception to this is when the research has defined or has provided a *%E&IFI& period.

. %hilippine 0egal esearch

.5 esearch of *tatute law

atute laws are the rules and regulations promulgated by competent authorities" enactments of legislative bodies @national or localB or

ey may be rules and regulations of administrative @departments or bureauB or (udicial agencies. esearch of statutory law does not end

th consulting the law itself. t times it e'tends to the intent of each provision or even the words used in the law. In this regard, the

eliberations of these laws must be consulted. The deliberation of laws, e'cept %residential 2ecrees and other Jartial law issuances,

e available.

onstitution

he different &onstitutions of the %hilippines are provided in some history boo$s such as 1regorio F. aides hilippine Constitutional

istory and Constitutions of Modern (ations @5?=B and 1ounders of 1reedom9 3he 8istory of 3hree Constitution by a sevenAman

oard. The %hilippine legal system recogni#es the following &onstitutions3 Jalolos, 58;, 5?8, %rovisional or Freedom and 5D?

onstitutions.

e't of the Jalolos &onstitution is available in some history boo$s such as 1regorio F. aides hilippine Constitutional 8istory and

onstitutions of Modern (ations, p. 5?> @5?=B. For the rest of the above mentioned &onstitutions, the te'ts are available in published

hilippine constitutional law boo$s. Full te't of these &onstitutions will be available at the *upreme &ourt EA0ibrary.

he &onstitutional &onvention proceedings provide for the intent and bac$ground of each provision of the &onstitution. *ources for the

89A58; &onstitutional &onvention are3 5= volumes of the &onstitutional &onvention ecord by the )ouse of epresentatives>>B, *alvador 0aurel4s seven volumes boo$ entitled roceedings of the Constitutional Con:ention @5>>B" > volumes of the

hilippine Constitution, +rigins, Ma*ing, Meaning and !pplication by the %hilippine 0awyers ssociation with Lose ruego as one of its

ditors @5?=B and Lournal of the &onstitutional convention of the %hilippines by Kicente Francisco.

roceedings of the 5?8 &onstitutional &onvention were never published. photocopy and softcopy of the complete compilation is

vailable at the Filipiniana eading oom of the /ational 0ibrary of the %hilippines.


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ournals @8 volumesB and ecords @; volumesB of the &onstitutional &onvention of 5D> were published by the &onstitutional

ommission. This publication does not have an inde'. This problem was remedied when &2 Technologies sia Inc. came out with a

2A7J version which facilitated research for it has a search engine.

he proceedings and te't of the 58;, 5?8 and 5D? &onstitutions will be available at the *upreme &ourt EA0ibrary.

&ommentaries or interpretations on the constitution, decisions of the *upreme &ourt and other courts, te'tboo$s or treaties, periodical

ticles of the different &onstitution are available. @*ee. 0egal :ibliography on page 89B

reaties an ot-er $nternational +greements

treaty is an agreement or a contract between two @bilateralB or more @multilateralB nations or sovereigns, entered into by agents

ppointed @generally the *ecretary of Foreign ffairs or ambassadorsB for the purpose and duly sanctioned by supreme powers of the

spective countries. Treaties that do not have legislative sanctions are e'ecutive agreements which may or may not have legislative

uthori#ation, and which have limited e'ecution by constitutional restrictions

n the %hilippines, a treaty or international agreement shall not be valid and effective unless concurred in by at least twoAthirds of all

embers of the *enate @&onstitution, rticle KII, section 65B. Those without the concurrence of the *enate are considered as E'ecutive

greements.

he %resident of the %hilippines may enter into international treaties or agreements as the national welfare and interest may require,nd may contract and guarantee foreign loans on behalf of the epublic, sub(ect to such limitations as may be provided by law. 2uring

e time of %res. Jarcos, there was the soAcalled Tripoli greement.

he official te't of treaties is published in the +fficial azette, /epartment of 1oreign !ffairs 3reaty Series 2/1!3S0, ;nited (ations

reaty Series 2;(3S0 or the !niversity of the %hilippines 0aw &enter4s hilippine 3reaty Series 23S0. To locate the latest treaties, there

e two possible sources3 2epartment of Foreign ffairs and the *enate of the %hilippines. There is no complete repository of all treaties

ntered into by the %hilippines. There is a selective publication of treaties in the +fficial azette. The 2FT* was last published in the

?=s while the %T*4s last volume, vol. D contains treaties entered into until 5D5.With the !/ Treaty *eries, it is available only in !/

epository libraries in the country and its !nited /ation Information &enter in Ja$ati. Forthcoming will be the compilation of treaties from

9>A6==? in &2A7J at the *upreme &ourt 0ibrary.

or ta' treaties Eustaquio 7rdoo has published a series on the %hilippine ta' treaties. 7ther sources of important treaties are

ppended in boo$s on the sub(ect or law (ournals such as the merican Lournal of International 0aw or the %hilippine Cearboo$ of

ternational 0aw.

o locate these treaties, the Foreign *ervice Institute published the %hilippine Treaties Inde' @59>A5D6B and !/ Jultilateral Treaties

eposited with the *ecretary 1eneral. Electronically, ma(or law libraries use the Treaties and International greements esearchers

rchives @TIB, WE*T0W, 0EVI*, other online sources and the Internet.

tatutes Proper DLegislative )nactmentsC

atutes are enactments of the different legislative bodies since 5== bro$en down as follows3

,6?; &T* A Enactments from 5==A58;

?88 &ommonwealth cts A Enactments from 58;A59;

6=89 %residential 2ecrees A Enactments from 5?6A5D;

DD9 :atas %ambansa. Enactments from 5?A5D;

;9? epublic cts A Enactments from 59>A5?6, 5D?A pril 5, 6==







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he above figures clearly show that during Jartial 0aw, both %resident Jarcos and the )atasang ambansa @%arliamentB were issuing

ws at the same time A %residential 2ecrees by %resident Jarcos and )atas ambansa by the %hilippine %arliament.

uring Jartial 0aw, aside from %residential 2ecrees, the %resident promulgated other issuances namely3 ;? 1eneral 7rders, 5,;6;

etters of Instruction, 6,9D %roclamations, D86 Jemorandum 7rder, 5,6? Jemorandum &ircular, 5;? 0etter of Implementation, 0etter

uthority, 0etters of Instruction, ;=9 dministrative 7rder and 5,=8 E'ecutive 7rders.

s previously stated, the %residential 2ecrees issued by %res. Jarcos during Jartial 0aw and the E'ecutive 7rders issued by %res.

quino before the opening of &ongress may be classified as legislative acts for there was no legislature during those two periods.

aws passed by the new 5D? &ongress started from ep. ct /o. >>8>, as the last epublic ct promulgated by &ongress before

artial 0aw was ep. ct /o. >>8;.

he following are the %hilippine codes adopted from 5=5 to present3

hild and Couth Welfare &ode

vil &ode

omprehensive grarian eform

ode

oconut Industry &ode

ode of &ommerce

ooperative &ode

orporation &ode

amily &ode

re &ode

• Forest eform &ode

• Intellectual %roperty &ode

• 0abor &ode

• 0and Transportation and Traffic &ode

• 0ocal 1overnment &ode

• Juslim &ode of %ersonal 0aws

• /ational :uilding &ode

• /ational &ode of Jar$eting of :reastA

mil$ *ubstitutes and *upplements

• /ational Internal evenue &ode

• 7mnibus Election &ode

• %hilippine Environment &ode

• evised dministrative &ode

• evised %enal &ode

• *anitation &ode

• *tate uditing &ode

• Tariff and &ustoms &ode

• Water &ode

From the above list of codes, recently amended is the Fire &ode of the %hilippines, epublic ct /o. ;59 A Hn ct Establishing

&omprehensive Fire &ode of the %hilippines epealing %residential 2ecree /o. 55D; and for 7ther %urposesH , pproved by the

resident on 2ecember 5, 6==D.

The )ouse of epresentatives prepared the procedure on how a bill becomes a law. This procedure is pursuant to the

onstitution and recogni#ed by both )ouses of &ongress. To better appreciate the procedure, a diagram was prepared by the )ouse of

epresentatives.


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*7!&E3 &ongressional 0ibrary" )ouse %rinting 2ivision, dministrative *upport :ureau, Luly 5>.

dministrative acts, orders and regulations of the %resident touching on the organi#ation or mode of operation of the

overnment, reAarranging or ad(usting districts, divisions or parts of the %hilippines, and acts and commands governing the general

erformance of duties of public officials and employees or disposing of issues of general concern are made effective by E'ecutive

rders. Those orders fi'ing the dates when specific laws, resolutions or orders cease to ta$e effect and any information concerning

atters of public moment determined by law, resolution or e'ecutive orders, ta$e the form of e'ecutive %roclamation.

E'ecutive 7rders and %roclamations of the 1overnorA1eneral were published annually in a set E'ecutive 7rders and

roclamations. Thirty three @88B volumes were published until 58; by the :ureau of %rinting. dministrative cts and 7rders of the

resident and %roclamations were published. 7nly a few libraries in the %hilippines have these publications for the ma(ority were

estroyed during World War II. There are copies available at the 0aw 0ibrary of &ongress, &incinnati 0aw 0ibrary ssociation @who

fered to donate them to the *upreme &ourt of the %hilippinesB and some at the 0ibrary of the Institute of *outh East sian *tudies in

ngapore.

In researching for %roclamations, dministrative 7rders, E'ecutive 7rders and Jemorandum 7rders X &irculars of the

resident, the year it was promulgated is a must, or if no year is available, the %resident issuing it must be stated. s a new %resident is

worn in, all the %residential issuances start with /o. 5. The only e'ception was E'ecutive 7rders issued by %resident &arlos 1arcia

ter he assumed the %residency because %resident Jagsaysay died in a plane crash. )e continued the number started by %resident

agsaysay. When %resident 1arcia was elected %resident, he started his E'ecutive 7rder /o. 5.







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To loo$ for the intent of epublic cts, we have to go through the printed Journals and -ecords of both houses of &ongress

hich contain their deliberation. To facilitate the search, the )ouse :ill /o. or *enate :ill /o. or both found on the upper left portion of

e first page of the law is important. The proceedings of the )ouse of epresentatives and the %hilippine *enate are now available on

eir websites. The :atasang %ambansa has li$ewise published it proceedings. There are no available proceedings for the other laws

cts, &ommonwealth ct and %residential 2ecrees.

+ministrative (ules an (egulations

dministrative ules and regulations are orders, rules and regulations issued by the heads of 2epartments, :ureau and other

gencies of the government for the effective enforcement of laws within their (urisdiction. )owever, in order that such rules and

gulations may be valid, they must be within the authori#ed limits and (urisdiction of the office issuing them and in accordance with the

ovisions of the law authori#ing their issuance. ccess to administrative rules and regulations have been facilitated due to the two

evelopments3 aB government agencies, including government owned and controlled corporations, have their own websites where they

clude the fullAte't of their issuances, and bB the /ational dministrative egister, which is available in print, &2Aom and in the

upreme &ourt website.

In handling these types of materials, there are two important items needed3 a.B Issuing gency and b.B Cear it was promulgated.

his is due to the fact that all 2epartments, :ureaus, and other government agencies use the administrative orders, memorandum

ders and memorandum circulars for their administrative rules and regulations and they start always with number 5 every year. Even

e *upreme &ourt issues dministrative 7rders, &irculars, Jemorandum 7rders, and dministrative Jatters.

:efore the dministrative &ode of 5D?, these orders, rules and regulations were selectively published in the +fficial azette.

hus, the only source to be able to get a copy of the te't of these rules and regulations is the issuing government agency itself.

When the 5D? dministrative &ode @E'ecutive 7rder /o. 66B was promulgated, all governmental and department orders,

les and regulations have to be filed with the !niversity of government agencies including government owned and controlled

orporations have to file three @8B certified copies of their orders, rules and regulations with the !niversity of the %hilippines 0aw

enter4s 7ffice of /ational dministrative egister and are required to publish quarterly in a publication called (ational !dministrati:e

egister . side from the printed copies, the /ational dministrative egister is available electronically on &2A7J @&2 sia

echnologies Inc.B and online at the *upreme &ourt EA0ibrary. ules in force on the date on which the &ode too$ effect which are not

ed within three months from the date not thereafter shall be the basis of any sanction against any person or party. Each rule becomes

fective 5; days after the filing, unless a different date is fi'ed by law or specified in the rule, such as in cases of imminent danger to

ublic health, safety and welfare, the e'istence of which must be e'pressed in a statement accompanying the rule. The court shall ta$edicial notice of the certified copy of each rule duly filed or as published in the bulletin or codified rules

!niversity of the %hilippines 0aw &enters 7ffice of /ational dministrative egister is not only tas$ed to publish this quarterly

gister but must $eep an upAtoAdate codification of all rules thus published and remaining in effect together with a complete inde' and

ppropriate tables. Every rule establishing an offense or defining an act which pursuant to law is punishable as a crime or sub(ect to a

enalty shall in all cases be published in full te't. E'ceptions to the +filing requirementH are &ongress, Ludiciary, &onstitutional

ommission, military establishments in all matters relative to rmed Forces personnel, the :oard of %ardons and %arole and state

niversities and colleges.

s previously stated, there are no upAtoAdate or complete *tatutes finders. Those published are listed in the %hilippine 0egal

formation esources and &itations @part II of the 6== !pdate B. s previously stated, to facilitate legal research, one has to go

nline to virtual libraries such as the *upreme &ourt EA0ibrary, &han obles Kirtual 0aw 0ibrary, rellano 0aw Foundations The I

awphil %ro(ect, and &2 sia Technologies or the different databases in &2 7J such as those of &2 sia Technologies sia Inc., <e"

brary< ! Century and = >ears of Supreme Court /ecisions and i"&a$ Instant C/.

;.6 esearch of &ase 0aw


http://www.congress.gov.ph/





http://www.gov.ph/

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*7!&E3 ?@@? -e:ised Manual of Cler*s of Court . Janila, *upreme &ourt, 6==6. 7rgani#ational &hart was amended due to

e passage of epublic ct /o. 6D6 @&TB

&ase 0aw or Ludicial decisions are official interpretations or manifestation of law made by persons and agencies of the

overnment performing (udicial and quasiA(udicial functions. t the ape' of the %hilippine Ludicial *ystem is the *upreme &ourt, or what

referred to as court of last resort. The reorgani#ation of the Ludiciary of 5D= @:atas %ambansa :ldg. 56B established the following

ourts3

&ourt of ppeals"

egional Trial &ourts divided into different (udicial

gions,

Jetropolitan Trial &ourt"

• Junicipal Trial &ourt in &ities"

• Junicipal Trial &ourts"

• Junicipal &ircuit Trial &ourts.

The Shariah 2Sharia7aB &ircuit and 2istrict &ourts @%residential 2ecree /o. 5=D8B, &ourt of Ta' ppeals @epublic ct /o. 556;B

nd the *andiganbayan @%residential 2ecree /os. 59D> and 5>=>B, sec. 9, rt VI of the 5D? &onstitution were created by separate

ws.

&onventional decisions are decisions or rulings made by regularly constituted court of (ustice. *ubordinate decisions are those

ade by administrative agencies performing quasiA(udicial functions.

7ne ma(or problem in conducting research on case law is the availability of published or printed decisions from the &ourt of

ppeals to the rest of the (udicial and quasiA(udicial agencies. The Ludicial eform %rogram of the *upreme &ourt with the

stablishment of the *upreme &ourt EA0ibrary aims to address this problem and also those from statute law. The decisions of the

upreme &ourt, &ourt of ppeals, *andiganban and the &ourt of Ta' ppeals will be made available in the *upreme &ourt EA0ibrary.

ownloading of the decisions of the ppellate &ourts have started from the most recent and will continue until all their first decision from

eir creation will be completed. The eporters 7ffice of the *upreme &ourt and the &ourt of ppeals $eep all the original and completehttp3<<legalwritingtips.blogspot.com<, 6 /ovember 6=5;, 63=6 p.m.

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opies of the court decisions. For the rest of the members of the Ludiciary or the quasiA(udicial agencies, copies of their decisions may

e ta$en from the 0egal 7ffice, 7ffice of the &ler$s of &ourt or their libraries.

'upreme ,ourt !ecisions

2ecisions of the *upreme &ourt bind the lower courts and are a source of law, the law of the land. It is the (udgment of this

ourt which determines whether a law is constitutional or not. !nconstitutional laws even though it is signed by the %resident and

assed by both house of congress can not ta$e effect in the %hilippines.

2ecisions of the *upreme &ourt are classified as follows3

Hegular decisionsH and e'tended esolutions are published in court reports either in primary or secondary sources. These

ecisions provide the (ustice who penned the decision or ponente and the other (ustices responsible for promulgating the decision,hether En :anc or by 2ivision. *eparate dissenting and<or concurring opinions are li$ewise published with the main decision. Thesegular and e'tended resolutions are available electronically in the *upreme &ourt EA0ibrary under 2ecsions.

!nsigned Jinute esolutions are not published. lthough they bear the same force and effect as the regular decisions or

'tended resolutions, they are signed and issued by the respective &ler$s of &ourt En :anc or by either of the three @8B 2ivisions. *inceese Jinutes esolutions are not published, the *upreme &ourt has now incorporated these Jinute esolutions, more particularlyose that resolve a motion for reconsideration or those that e'plain or affirm a decision" and @6B dministrative Jatters in the *upremeourt EA0ibrary, under E*70!TI7/*.

&ase eports in the %hilippines such as the hilippine -eports, Supreme Court -eports !nnotated 2SC-!0, and the Supreme

ourt !d:ance /ecisions 2SC!/0 come in bound volumes which generally cover a month per volume. 3he +fficial azette and

hilippine -eports are the official repositories of decisions and e'tended resolutions of the *upreme &ourt. The difference between the

wo lies in the fact that the +fficial azette selectively publishes *upreme &ourt decisions while hilippine -eports contains all decisions

the *upreme &ourt e'cept minute resolutions. )owever, from 5=5 until 5>=, there were unpublished decisions of the *upreme

ourt. The list and sub(ect field are found at the bac$ of each volume of the %hilippine eports. *ome of these decisions are cited in

eatises or annotations. In view to the importance of these decisions, the late Ludge /itafan of the egional Trial &ourt of Janila

arted publishing Supreme Court ;npublished /ecisions" vol. 5 covers decisions from Jarch 59> to February 5;6.

Even before the war, there were unpublished decisions of the &ourt. The source of these unpublished decisions is the 7ffice of

e eporter of the *upreme &ourt. 2ue to World War II, a number of the original decisions have been burned. *o, there is no complete

ompilation of the original decisions of the *upreme &ourt. This problem is being addressed by the *upreme &ourt EA0ibrary where areeat number of these unpublished decisions of the *upreme &ourt before the war were retrieved from different sources such as the

nited *tates /ational rchives in Jaryland, private collection of former *upreme &ourt Lustices such as &hief Lustice amon

vancena and Lustice 1eorge Jalcom @collection is found in the !niversity of JichiganB and private law libraries who were able to save

ome of their collection such as the !niversity of *anto Tomas, the oldest university in the %hilippines. *earch for the unpublished

ecisions still continues. list of these unpublished decisions is in the *upreme &ourt EA0ibrary, %ro(ect &7J%!*2E&, under

!I*%!2E/&E.

The early volumes, particularly those before the war were originally published in *panish in the Jurisprudencia 1ilipina. They

ere translated in English to become the hilippine -eports. *ome decisions after the second %hilippine independence were still in the

panish language. There are a number of decisions now in the Filipino language. The hilippine -eports until volume 56> @5>=4sB was

ublished by the :ureau of %rinting, now called the /ational %rinting 7ffice. %rinting was transferred to the *upreme &ourt in the 5D=s

ue to the need for a complete official publication of the &ourts decision. The *upreme &ourts hilippine -eports started with volume

6?.

The most popular secondary source is the Supreme Court -eports !nnotated 2SC-!B. ctually, legal practitioners cite it more

an the hilippine -eports and the &e' &ibris Jurisprudence &2 7J.

)ow can we search for *upreme &ourt decisions3

Topic or *ub(ect pproach3 @%lease *ee &omplete title of the publication from the %hilippine 0egal :ibliography chapterB














Page |

23

Of

23

OMMUNICATION SKILLS

hilippine 2igest

epublic of the %hilippine 2igest

elayo4s digest

agsino4s &ompendium

upreme &ourt4s unpublished *ub(ect Inde'

artine#4s *ummary of *upreme &ourt rulings 5D9 to 5?

o !% 0aw &enter4s *upreme &ourt decisions3 sub(ect inde' and

digest4s

o *&4s &ase 2igest4s

o %hilippine 0aw and Lurisprudence

o &astigadors &itations

o *& Quic$ Inde' 2igest

o 0e' 0ibris Lurisprudence







o Title pproach or Title of the pproach3 @%lease *ee &omplete title of the publication from the

%hilippine 0egal :ibliography chapterB

o %hilippine 2igest A &ase Inde'

o epublic of the %hilippines 2igest

o 7ng, J. Title Inde' to *& decisions 59>A5?D 6v." 5?DA5D5 5st *uppl" 5D5A5D;, 6nd *uppl"

5D> to present is unpublished but available at the *& 0ib

o teneo4s Inde' X quirre4s Inde'

o 0e' 0ibris Lurisprudence<Template search

o ,ourt of +ppeals ecisions

o 2ecisions of the &ourt of ppeals are merely persuasive on lower courts. They are cited in cases

where there are no *upreme &ourt decisions in point. In this regard, they are considered as (udicial guides to lower

courts and that conclusion or pronouncement they ma$e can be raised as a doctrine.

o *ources of &ourt of ppeals decisions are3

o Te't3

o 7fficial 1a#ette @selective publicationB

o &ourt of ppeals eports which was published by the &ourt of ppeals until 5D=. Even this

publication is not a complete compilation. It is still considered selective for not all & decisions are published.

o &ourt of ppeals eports @&B by &entral :oo$ *upply. 7ne volume was published

o %hilippine 0aw and Lurisprudence

o eports 7ffice of the &ourt of ppeals

o *ub(ect or Topic pproach3

o Kelayo4s 2igest"

o Joreno4s %hilippine 0aw dictionary

o !ecisions of 'pecial ,ourts

o *andiganbayan and the &ourt of Ta' ppeals do not have published decisions. The

*andiganbayan has only one volume published" *andiganbayan eports vol. 5 covers decisions promulgated from

2ecember 5? to 5D=.

o &ourt of Ta' ppeals decisions from 5D= to 6==9 are found in the 0e' 0ibris particularly in

Ta'ation &2 7J.

o !ecisions of +ministrative +gencies ,ommissions an @oars



o 0aws have been promulgated which grants some administrative agencies to perform quasiA(udicial

functions. These functions are distinct from their regular administrative or regulatory functions where rules and

regulations are promulgated. The *ecurities egulations &ode @epublic ct /o. D?B signed by %resident Loseph

E. Estrada on Luly 5,6=== affects *ecurities and E'change &ommission4s @*E&B quasiA(udicial functions. The

other agencies performing said functions are /ational 0abor elations &ommission @/0&B, Insurance &ommission,

)ousing and 0and !se egulatory :oard @)0!:B, 1overnment *ervice Insurance *ystem @1*I*B, *ocial *ecurity

*ystem @***B and even the &ivil *ervice &ommission @&*&B. *ome of their decisions are published in the 7fficial

1a#ette. *ome have their own publication such as the *E& and the &*& or some include them in their own

websites

o &2 sia Technologies &e' &ibris series has individual &2 7Js for the 2epartment of Lustice,

*ecurities and E'change &ommission, )ang*o Sentral ng ilipinas @&entral :an$ of the %hilippinesB, and the

:ureau of Internal evenue. Included in these individual &2 7Js are the pertinent laws, their respective

issuances as well as *upreme &ourt decisions. It &2 7J on 0abor @vol. KIIB incorporated issuances from the

2epartment of 0abor and Employment and its affiliated agencies and offices. The Trade, &ommerce and Industry

&2 7J includes *upreme &ourt decisions, laws and issuances of its various agencies such as the 2epartment of

Trade and Industry, :oard of Investments, :ureau of &ustoms, :ang*o Sentral and the %hilippine *toc$ E'change.

fundamentals of legal writing

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