Legal Writing

Philippine Copyright, 2014 by

ISBN 978-971-23-7492-0 ITEM CODE 85-OT- 00069-B

No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the corresponding number and the signature of either of the authors on his page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same.

ALL RIGHTS RESERVED BY THE AUTHORS

I dedicate this book to my parents, Domiciano and Josefina Abad, whom I cannot honor enough. Roberto A. Abad

CONTENTS 1. Legal Writing Scope of Legal Writing Aims of the Book 2. The Legal Dispute Meaning of Legal Dispute Its Significance in Legal Writing Legal Dispute and The Principal Issue Importance of Principal Issue 3. Stages of Writing Two Stages of Legal Writing Value of Pre-Work 4. Getting at the Facts of the Case Facts of a Case Random Notes versus Summary Facts Seen through the Issue Cluttered Facts Relevant Facts Extracted Facts Set in Sequence Writing Exercises The Case of a Child and a Neighbor’s Dog 5. Knowing the Applicable Law or Rule Sources of Law or Rule

Facts Reexamined Writing Exercises 6. Getting into the Issues Issues in Multiple Legal Disputes Subordinate Controlling Issues Relevant and Irrelevant Issues A List of All Issues Factual and Legal Issues Correct Statement of the Issues Threshold Issues Writing Exercises 7. Roughing Out the Argument Balanced Presentation Anatomy of a Legal Argument The Key Fact In Rules The Case Fact Meaning of “Rule” Roughed Out Arguments Creative Thinking Arguments that Build Up Arguments that Destroy Pre-Work Reviewed Writing Exercises 8. Introducing the Issues Need for Introduction Sufficiency of Introduction The Statement of the Case

The Statement of Facts Short Introductions Writing Exercises 9. Writing the Argument Jump Off Points Three Statements of an Argument Persuasive Arguments Convincing Rule Statement Convincing Fact Statement Correct Conclusion Statement Positioning Variation Building Blocks of Arguments Omitted Statement Closing Statement Writing Exercises 10. Tightening Your Work Language Problems Needless Words Active versus Passive Voice Third Person Speaks Block Quotations Writing Exercises 11. Writing Clearly Right Connectives Abstract versus Concrete Writing Substitute Names Headings

Writing Exercises 12. Writing Legalese Legal Clichés Old English Sounding Formal Cheap Words Self-praise Sentence-length Variety Writing Exercises 13. Writing Legal Opinions Illustrative Case: Chan v. Century Bank 14. Writing Trial Memoranda Illustrative Case: Maranan v. Gonzalo Realty Writing Exercises 15. Writing Petitions For Review Illustrative Case: Excal Corp. v. Jimenez Writing Exercises 16. Writing a Decision Illustrative Case: Hudson Power Corp. v. Nemo Shipping Writing Exercises APPENDICES Appendix A –– People v. Takad Appendix B –– Garcia v. Silver Films, Inc Appendix C –– National Supplies Authority v. Allied Shipping Corp Appendix D –– Pointers in Answer School and Bar Examination Questions

This edition includes pointers in answering law school and bar examination questions.

1. Legal Writing

Scope of Legal Writing This book is about the things that lawyers write to win others over to their point of view. If you were a practicing lawyer, you would be doing a lot of this kind of work. For instance, when your client, say, a restaurant owner, writes to you regarding the threat of a possible lawsuit from a customer who was taken ill after eating in your client’s restaurant, you may have to write him back, giving him your views regarding his probable liability based on the facts he tells you. This is legal writing. When the case gets to court, you would be filing a number of pleadings like an answer to the customer’s complaint, denying your client’s liability or minimizing it. Further down the road, you would probably file for him assorted pleadings, motions, oppositions, replies, rejoinders, memoranda, and other papers. These are legal writings. And if you were to be the judge, who is also a lawyer, and must decide the case, you would have to put your decision in writing, announce its results, and reveal to the parties your reasons for the decision. Under our laws, the parties are entitled to know why they won or lost a case. The strength of your decision lies in the validity and persuasiveness of the opinion supporting it. This, too, is legal writing. But legal writing does not only begin when you pass the bar. As law

students, you begin to churn out some form of legal writing once you enter law school. When you digest cases, answer examination questions, and write your thesis or any other paper in law school, you begin to train yourself for actual legal writing because the most basic elements you need to apply in digesting cases and answering your law school exams are the same ones you will use in legal writing in the practice of law: the facts, the issue, and the arguments or principles of law that resolve the issue.

Aims of the Book The principal aim of this book is to help you write pleadings, legal opinions, memoranda, and other position papers, clearly and convincingly, and to win others to your point of view. Consequently, apart from learning the general structure of effective legal writing, this book will do more. One. This book will help you identify and put together the facts on which the issues of a case will be decided. As a rule, cases will not come with the facts all sorted out for you. You will discover, as you study the documents, hold interviews with the parties involved, or simply examine the records, that the relevant facts in a case are far from organized and come mixed up with the irrelevant. He who is able to extract and organize the relevant facts would have the advantage of arguing from uncluttered truth. You can get there if you persevere in the lessons of this book. Two. This book will also help you find the law or rule that applies to your case given the nature of the legal dispute involved. You will discover that laws are not restricted to those enacted by duly constituted legislative bodies called “statute law.” A great body of laws also evolves from judicial precedents, where courts interpret laws as these apply to specific cases. This body of laws is referred to as “case law.” Your knowledge of the law involved in your case, both statute law and case law, must complement your knowledge of the facts to prepare you for the job of writing to persuade your reader to your point of view. Three. This book will help you correctly identify the issue or issues in a case. The issue does for an opinion or a pleading what the rudder does for a ship. If you argue the wrong issue, it would be like pointing your rudder to the wrong direction such that your argument would not touch port and miss the real issue that the case presents. When this happens, your case would be decided on an issue that you chose not to be heard on. You can avoid this.

Four. This book will help you pack power into your arguments. It will show you the elements of a balanced presentation of those arguments and what it takes to destroy the argument of the opposite side while building up your own. It will also show you the importance of a closing statement and how you could prepare a most effective one. Five. This book will show you how to edit your work, tighten your sentences, and make your writing come through to your reader clearly. A number of legal writing prescriptions in this book may appear controversial to some but controversies initiate discussion and the free marketplace of ideas always profits from it. All that is required is an open mind. Six. This book aims to help you write better. Some say that the ability to write well is a natural gift that is not available to all. This might be true. But the fact that you have gotten this far in your studies gives you the right to assume that you have the gift to write. All you have to do now is improve on your gift. Master a few refurbished techniques collected in this book and you are on your way to preparing adequate, clear, and convincing pleadings, legal opinions, memoranda, and other position papers. Of course, the greatest secret of success in writing well is in constantly striving to use what you learn. They will not work unless you put them into practice. And beyond practice, to be a good a writer one must be a prolific reader. Learn the styles of effective writers such as best selling authors, opinion writers, and respectable journalists. During your stay in law school you are forced to absorb the writing style used in laws and jurisprudence, which may seem impressive but not the most effective way of communication. This book will encourage you to view legal writing as a communication skill as much as an advocacy skill.

2. The Legal Dispute A legal dispute lies at the heart of every case. In fact, most of your writing assignments as a lawyer would probably be devoted to arguing and resolving such a dispute.

Meaning of Legal Dispute For the purpose of this book, there is a legal dispute when one party complains of a violation of his right by another who, on the other hand, denies such a violation. A legal dispute in this sense is akin to a cause of action in a civil suit in which the defendant denies the claim against him. It is this denial that tenders a legal dispute. When a person renting an apartment allegedly could not pay the agreed monthly rents yet refuses to leave his unit, a legal dispute arises. This consists of: (a) the apartment owner’s claim that the tenant fails to pay the agreed monthly rents and must leave his unit; and (b) the tenant’s denial of the claim and insistence to retain the unit. You have in this case a right protected by law, an alleged violation of such right, and a denial of the allegation—a legal dispute. The right claimed to have been violated must of course be a legal right since courts will uphold and vindicate only those rights that are established or recognized by law. For instance, a Filipino may claim that he deserves to be allowed to travel to the United States. But, if the U.S. embassy denies him the visa required for entry into that country, he cannot file a lawsuit to compel its issuance since Philippine laws do

not grant him that right. Likewise, the dispute over the demand that Filipino rather than English be made the primary medium of instruction in all levels of education is not a legal dispute since it does not involve an actual violation of some right. The controversy, although of public interest, will not to be resolved by litigation but by legislative action. What is the legal dispute when a person allegedly refuses to pay his debt? The legal dispute lies in: (a) the creditor’s claim that the debtor unjustly refuses to pay his debt under a promissory note that he issued in favor of the creditor; and (b) the debtor’s denial of such a claim. Again, you have here a right protected by law, an alleged violation of the right, and a denial of the allegation. In a criminal case, the legal dispute consists in the State’s claim that the accused has violated its right to compel obedience to its laws and in the latter’s denial of the claim during his arraignment. So what does the legal dispute consists of when a person defrauds another by selling a fake Rolex watch to him for the price of a genuine one? This consists of: (a) the State’s charge that the accused defrauded the complainant by selling a fake Rolex watch to him for the price of a genuine one; and (b) the accused’s denial of the charge.

Its Significance in Legal Writing Why is it important in legal writing that you are able to know and identify the legal dispute involved in a case? Since a legal dispute involves a violation of a right protected by law or which violation the law punishes, nothing less than the resolution of such dispute could properly end it. Precisely, we say that a legal dispute is at the heart of every case subject of legal writing because it is like a tumor that would not go away until it is excised. Consequently, if you fail to correctly identify the legal dispute and address it, you would just be running around in circles, contributing nothing to its

final termination. That is how important it is!

Legal Dispute and the Principal Issue As a rule, the legal dispute, recast in the format of an issue, provides the principal issue in every case. Take the earlier case of the tenant who could not pay the agreed monthly rents yet refuses to leave his apartment unit. We said that the legal dispute consists in: (a) the apartment owner’s claim that the tenant fails to pay the agreed monthly rents and must leave his unit; and (b) the tenant’s denial of the claim and insistence to retain the unit. Put in the format of an issue, the principal issue is “whether or not the tenant who fails to pay the monthly rents must leave the apartment unit.” Take also the case of the person who refuses to pay his debt. We said that the legal dispute lies in: (a) the creditor’s claim that the debtor unjustly refuses to pay his debt under a promissory note that he issued in favor of the creditor; and (b) the debtor’s denial of such a claim. Rewritten in the format of an issue, the principal issue is “whether or not the debtor unjustly refuses to pay his debt under a promissory note that he issued in favor of the creditor.” In the criminal case discussed above, we said that the legal dispute consists in: (a) the State’s charge that the accused defrauded the complainant by selling a fake Rolex watch to him for the price of a genuine one; and (b) the accused’s denial of the charge. Recast as an issue, the principal issue is “whether or not the accused defrauded the complainant by selling a fake Rolex watch to him for the price of a genuine one.” What does the legal dispute consists of when a building official issues to the owner an occupancy permit for a building with inadequate fire exits? It consists of: (a) the complainant’s claim that respondent building official issued to the owner an occupancy permit for a building with inadequate fire exits in violation of Section 3(b) of Republic Act 3019; and (b) the respondent’s denial of that claim.

Transformed into an issue, the principal issue is “whether or not respondent building official issued to the owner an occupancy permit covering a building that has inadequate fire exits in violation of Section 3(b) of Republic Act 3019.”

Importance of Principal Issue Why is knowledge of the principal issue important to you? It is important to you because your case will be decided for or against you based on that issue. It is important because you judge the significance of every argument that you want to use to persuade your reader by its relevance to the principal issue. Any argument that does not touch base with the principal issue or issues (there could be more than one principal issue involved in a case) would be quite useless and a waste of time.

3. Stages of Writing Legal writing, when methodically done, is much like a construction of a building. You move in stages. You gather all the materials you need, sort them out, cut them to size, and join them together according to a plan. Before you end, you then give your building the finishing work it requires.

Two Stages of Legal Writing Legal writing also moves in stages. It has two main stages: The First Stage is Pre-work. Here, you are at the beginning of your writing assignment and are looking at the facts and evidence of the case as they are made available to you. If it is a new case, the facts might come from interviews of the persons involved in the problem or from related documents that require sorting. These materials would be absolutely raw. Quite often, the dates when the important events took place are mixed up. On the other hand, if it is a case that has undergone trial, you might be looking at the transcript of the testimonies of witnesses and the documentary exhibits presented in the case. Pre-work is a process. Whatever your assignment might be, your pre-work would be inadequate unless you go through at least five levels of efforts: 1. Establishing where the legal dispute lies in the case; 2. Discovering its relevant facts;

3. Knowing the laws or rules that apply to it; 4. Identifying the issue or issues that you would address; and 5. Roughing out the arguments that you would use. The Second Stage is Write-up. Here, having all the ideas you need concerning your legal writing assignment, your task is to put flesh, color, and shape to them. You will now transform the sketches and outlines you produced during pre-work into a full draft of the paper required of you––a pleading, a legal opinion, a petition, a comment, a memorandum, a position paper, or even a decision. Editing and rewriting will complete the write-up stage.

Value of Pre-work Most haphazardly finished legal writing can be traced to lack of prework or to pre-work hastily done. The need for pre-work is true for all kinds of presentations that are aimed to convince others to a certain point of view. A successful salesman needs to have a complete knowledge and mastery of his product, all its good points and bad. With this edge, he can then develop his sales pitch or the line of arguments he could draw from, polish them to perfection, and make a sale. In a real sense, legal writing is a sort of presentation. The lawyer should be able to make a convincing presentation of his case in the limited time that he is able to hold his reader’s attention. To succeed in this, the lawyer needs pre-work. Lack of time to do pre-work, a frequent excuse, cannot be a valid justification for dispensing with one. The writer who settles for an opinion, pleading, or position paper not based on pre-work does not care about the comprehensiveness and convincing quality of his work. He just submits his work to his client or to the court for the sake of meeting the deadline given to him. He does not care about its result. This attitude, however, is the reason behind many failed legal writings and careers. You do not want this.

4. Getting at the Facts of the Case Almost always, legal writing stands on two legs: (1) the facts and (2) the laws involved in the case. And pre-work always starts with getting the facts right.

Facts of a Case When you study the facts of a case, you should not leave them until you have come to a complete understanding of what the case is about from every angle. When you are able to examine the position of the opposite side just as you have examined that of your client, you would be able to tell the latter that you know more about his case than he does. You short-change your client when you casually read the facts from your source materials without truly understanding and absorbing their contents. Deep concentration and absorption is required of every good preparation for a case.

Random Notes versus Summary One way to study case materials is to make short random of the facts of the case that you consider important as you go over them. This is a good practice. But purely random notes do not give you the complete picture. Because they are random, they are often uncorrelated and are, therefore, useful only for work done in one sitting. When you set aside your work and return to it after a long duration, your random notes would have lost their correct meaning and you have to start all over again. You would never be able to use these incomplete notes as a

permanent catalogue of the facts that you want to go back to repeatedly at various stages of the proceedings in a case. What you need is systematically prepared notes that adequately capture the entire factual terrain of the case, with the important points properly marked out. Studies in some English colleges show that there is a better way than taking random notes for absorbing complex or difficult texts or written materials. It is summarizing. You can best understand and absorb written materials when you summarize their contents. Your summary serves as a detailed map in your hand, able to guide you in negotiating your way through the dispute involved. Summarizing to compress the information you need, forces you to search your materials for what is important. It compels you to toss an item of fact over in your mind, assess its importance and relevance to the issues in the case, and decide whether to keep it in or throw it out of your summary. When you come to an item of fact and ask yourself, “What is the significance of this fact to this case?” you begin to wonder. Then, all your accumulated knowledge and experience bear on that item of fact and, usually, your mind produces the right answer.

Facts seen through the Issue When handling a new case, whatever stage you may find it, you need to go over the materials very quickly and determine preliminarily the principal issue or issues involved in the case. That is your key to pre-work. Only when you have an idea of what the principal issue is, could you make a good job of extracting the relevant facts from your materials. In a classroom experiment, the professor asked the students to do pre-work by carefully reading the following facts about a case: The Beers War Atlas Brewery Company discovered that distributors

of San Manuel Brewery in Metro Manila had in their warehouses hundreds of cases of empty beer bottles owned by Atlas Brewery. The distributors of San Manuel beer apparently bought the empty bottles from retailers to reduce the volume of sales of Atlas beer in their areas. The San Manuel beer distributors claimed, on the other hand, that they merely retaliated against Atlas beer distributors who had been buying and destroying the empty bottles of San Manuel beer in their areas. A law student, Fred Sanchez, complained that when he drank beer with friends one evening in June at a restaurant near his school, he found a cockroach in the bottle of San Manuel beer that he had drunk from. He vomited upon such discovery and suffered anxiety over fear that he would get sick. He got angry with the restaurant owner for serving the beer and threw the bottle with the pest in it at him, causing injury on the owner’s head. The restaurant owner blamed San Manuel Brewery for the incident and sued it. San Manuel Brewery, on the other hand, blamed Atlas Brewery and its distributors for tampering with its products. Fred Sanchez and his friends created a lot of noise about poisoned San Manuel beer products and initiated a boycott of those products. Their action found them friends from among the Atlas Brewery distributors. After the students read the above, they were asked to write in one sentence a comprehensive summary of what the case is all about. They were to complete the sentence: “The case is about…” Stop reading after this paragraph for a moment and try to complete the sentence yourself without re-reading the facts. “The case is about … . ” The students gave a variety of answers but most of them gave the equivalent of the following summaries:

1. The case is about the struggle between San Manuel Brewery and Atlas Beer Company over the distribution of their competing products. 2. The case is about how fierce competition in beer distribution could be very ugly. 3. The case is about a law student’s crusade against unsafe products that come out of the market. 4. The case is about tampering with bottled products and the dangers it presents. Actually, the facts above spoke of only one “case” ever having developed among the parties involved. This is the lawsuit that the restaurant owner filed against San Manuel Brewery for the injury he suffered in the hands of an outraged customer whom he served with a pest-laden bottle of beer. Did you get it right? Do not be discouraged if you did not. Very few students perceived this detail because they did not know what was expected of them when they read the article the first time. The point in the exercise is that, not knowing what they are looking for, different people would tend to get different impressions out of the same material that they have read. In the exercise, it is only after reading the material are the students informed that they are to state what the “case” is about. Just how do you make a complete summary from raw data? One way is to take out the non-essential facts from your written materials like contracts, deeds, letters, records, books, testimonies or sworn statements. Cross out those non-essential facts, leaving only the essential ones on the page of each document or paper. Consider this problem asked in a bar examination. The examiner probably picked up the facts from the syllabus of the case and so indiscriminately copied a lot of details that are not essential to the problem. Section 10 of Ordinance No. 105 of Tagaytay City

provides that at least 5% of the total area of any memorial park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. The City argues that it is within its powers to pass said ordinance; that the ordinance is a valid exercise of police power; and that the portion taken is for public use, the same being intended for paupers pursuant to its duty to provide for the health and safety of its inhabitants. Discuss the constitutionality of said ordinance. The challenge is to make a short summary of the above by crossing out the non-essential facts. Surely, you would be quite reckless if you just wield a pen and cross out every word from the text that you fancy as having of no use to you. What you need is a more precise pruning knife. As already stated, that pruning knife is nothing else but your understanding of the principal issue that the case presents. Only when you know that issue or at least have a preliminary idea of what it is, could you do a correct job of cutting away useless data to get to the essential facts you need. Fortunately, in the above problem, the bar examiner himself states the principal issue for you: he wants you to “discuss the constitutionality of the ordinance,” i.e., “whether or not it violates the right that it seeks to regulate—the right of the owner to his land.” Now, use this issue to prune away the facts that are not relevant to it. Consider the first sentence of the problem: Section 10 of Ordinance No. 105 of Tagaytay City provides that at least 5% of the total area of any memorial park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a

private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. Surely, the particular number of the ordinance involved (Ordinance No. 105), the particular number of the section of the ordinance (Section 10), or the particular place where it was enacted (Tagaytay City) are not relevant to the constitutionality of the ordinance. You will also note that some details of the quoted problem are superfluous. For instance, if the lots taken were to be “for charity burial,” it would be superfluous to say that it would benefit “pauper residents.” Also, in the phrase “no permit to establish, operate, and maintain a private memorial park,” the words “establish” and “maintain” are superfluous because “to operate” assumes these two terms. The above sentence needed 63 words to describe the facts of the problem. By crossing out the unneeded facts, what remains could be summarized in only 26 words, less than half the original number. Thus, rid of irrelevant details, your summary should read: Section 10 of Ordinance No. 105 of Tagaytay City provides that at least 5% of the total area of any memorial park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. In practice, however, crossing out portions of the documents will damage such documents and render them useless for other purposes. Quite often, you need to preserve the documents in their original state. Your alternative is to go over them, identify those facts that are essential to your understanding of the issues in the case, and put those facts in your outline. Section 10 of Ordinance No. 105 of Tagaytay City provides that at least 5% of the total area of any memorial

park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. Put together, the extracted facts should read like this: The ordinance requires memorial parks to give away to the poor 5% of their land area as a condition to being granted permits to operate. With the facts summarized in their barest essentials, it is now far easier for you to see the problem in its simplest form. Do you agree? You will no longer be distracted by unimportant and obtrusive facts. Making a summary of the facts of the case you are tasked to write about will do the same for you.

Cluttered Facts As you have seen, it is only when you know the principal issue or at least have a preliminary idea of what it is about that you could do a correct job of making a summary of the facts of your case. Consider the following testimonies, some conflicting, given by witnesses in an actual rape case. The names have, of course, been changed. To make the example simple for study, the transcripts have been edited and the cross-examination by opposing counsels dispensed with. Go over it once to enable you to get a sense of what the issue or issues are between the parties. Transcript of Stenographic Notes (TSN) October 8 (Abridged and edited for study) COURT STAFF: (After swearing in the witness) State your name and personal circumstances.

WITNESS: I am Julia Torres, eighteen years old, single, and a resident of Barrio Talaan, Lian, Batangas. PROSECUTOR: With the Court’s permission. Do you know Ronald Galang, the accused in this case? A. Yes, sir. He is there (pointing to the accused). Q. Why do you know him? A. He raped me. Q. Where did this happen? A. It happened on the rice field near Mario’s house. Q. How did Ronald rape you? A. I struggled to get free but he pointed a knife at my side and threatened to stab me if I called for help or persisted in fighting back. Q. So what did you do? A. Out of fear, I gave in and he raped me. Q. What did you do after Ronald raped you? A. I kept the matter to myself for a while. Q. Why? A. Because I was afraid of the trouble that will happen if my parents and brothers found out. They loved me so much. Q. For how long did you keep the matter to yourself? A. After two days of worrying and feeling bad, I finally told my aunt about it and she in turn told my parents. Q. What was the reaction of your parents?

A. They were quite furious and wanted to take the matter into their own hands but cooler heads prevailed. Q. So what did you do after that? A. I went to the police to complain. Q. Is that all that you did? A. I also submitted myself to medical examination. Q. When did Ronald rape you? A. He raped me on June 12 at 7 p.m. Q. How did you meet Ronald on June 12? A. I went to the house of Celia in our barrio to attend a wedding party and I saw him there. Q. Do you have any relationship with Ronald? A. None. He was only my suitor. Q. What were your feelings during the party? A. I was in high spirit because I met a lot of friends and had a good time. Q. Do you recall any unusual thing that happened at that wedding party? A. Someone exploded firecrackers nearby and this caused a scare for a while. Q. You said that you saw your suitor, Ronald, at the party. Did you have occasion to talk to each other? A. He wanted to talk to me but I ignored him because I disliked him for a suitor. In fact, I stayed away from him. Q. What happened after you ignored him?

A. The married couple danced after supper and people joined in. Q. What did you do after the dancing? A. At 11 p.m. I took leave to go and started to walk home alone in the moonlight. Q. Did anything unusual happen during your walk home? A. When I was about fifty meters from Mario’s house, Ronald came behind me and requested that he walk me home. Q. What was your reaction to him? A. I really did not like him. I declined and doubled my steps. Q. So what happened after you walked faster? A. Ronald caught my arm and wrestled me to the ground? Q. What kind was the ground over there? A. It was rough ground and dry. Q. What did Ronald do while your were down on the ground? A. He covered my mouth with a hand so I could not shout. He pointed a knife at me and forced me to yield to him. Q. Did it not bother you that you left the wedding party alone by yourself? A. No, sir. Walking alone did not bother me because I knew everyone in the barrio.

Q. What route did you take going home? A. I took a short cut across Mario’s farm, in the direction of our house. Q. Can you describe the path that you took? A. The path was quite uneven and difficult. Q. How was it? A. I was used to it and I managed very well. PROSECUTOR: That is all. ----------------------------------------------------------------------Transcript of Stenographic Notes (TSN) October 12 (Abridged and edited for study) COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Dr. Amado Ampil, of legal age, married, and a medical examiner for the Province of Batangas, and a resident of Batangas City. PROSECUTOR: Have you ever examined a woman by the name of Julia Torres? A. Yes, I examined Julia Torres after she complained to the Lian police that she had been raped. It took her two days before reporting the incident. Q. Could you describe her physical built? A. She was of small built, 4 feet 11 inches in height, and of fair complexion. Q. What was your finding[s] after conducting a

medical examination of her? A. I found after examining her body that she suffered from laceration of the cervix posterior portion and laceration of the vaginal canal posterior portion. The lacerations are about two days old. Q. Did you find any other injuries on her body? A. None, sir. Q. Did you prepare a medical report showing such finding? A. Yes, sir. This is my report. (Marked as Exhibit A.) PROSECUTOR: That will be all. ----------------------------------------------------------------------Transcript of Stenographic Notes (TSN) October 16 (Abridged and edited for study) COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Ronald Galang, twenty years old, single, and a resident of Barrio Talaan, Lian, Batangas. DEFENSE COUNSEL: With the Court’s permission. Do you know the complainant in this case, Ms. Julia Torres? A. Yes, sir. Q. She testified that you raped her, what can you say about that? A. I did not rape Julia.

Q. But did you have sexual relation with her on the evening of June 12? A. Yes, sir. But she freely agreed to make love with me that night of the wedding party at Celia’s house. Q. The medical examiner testified that she found lacerations on Julia’s vaginal canal when he examined her two days later. What can you say about that? A. That must be true. I discovered that evening that Julia was a virgin because she bled. It worried me but she said that it was not too painful. Q. Did you communicate with each other after that evening of June 12? A. Julia called for me the following day, insisting that I marry her because she was afraid she might have become pregnant. Q. What was your reply to her? A. Because I had to look after my parents yet, I declined, asking her to wait a while. Q. And what was her reaction to that? A. Julia became angry and threatened to complain to her parents that I raped her. Q. What was your reaction to what she said? A. I still refused to marry her right away. Q. So what did she do? A. She accused me of raping her. Q. What relation, if any did you have with Julia about the time of the alleged rape?

A. Julia and I had been sweethearts for over two months before June 12. Q. How did you come to meet each other at that wedding in Celia’s house? A. On that evening we met by prior agreement at Celia’s house right in our barrio. Q. What happened when you met each other at that wedding party? A. Things started out well and I had some fun meeting my friends. But, because of their jokes that I had some other girl, Julia became angry and refused to talk to me. Q. What did you do then? A. I left to brood outside. Q. How long did you stay outside? A. Not too long. I returned to the party an hour later after a friend called me inside. Q. What did you do when the wedding party ended? A. When the party ended, I walked alongside Julia and tried to explain the jokes played by my friends. Q. How did she react to your explanation? A. She did not want to believe me at first. After awhile, I convinced her to sit with me on a piece of log near the house of Mario. Q. What happened after you sat on that log? A. The evening was romantic and we eventually reconciled. Q. What happened after you reconciled?

A. We kissed and embraced and, forgetting ourselves, we made love on the grass. Q. What did you do after you made love to Julia? A. I walked with her up to about twenty meters of her house. DEFENSE COUNSEL: That is all. ----------------------------------------------------------------------Transcript of Stenographic Notes (TSN) October 25 (Abridged and edited for study) COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Mario Perez, forty-five years old, married, farmer, and a resident of Barrio Talaan, Lian, Batangas. DEFENSE COUNSEL: With the court’s permission. Do you remember where you were on the evening of June 12? A. I remember that I was home that evening of June 12. Q. Why do you remember that evening? A. I was told that a rape was committed on my farm that evening and it so happened that my two-year old daughter was then running a fever. Q. Is it possible you went to bed early that evening?

A. I remember that I slept late because I had to watch our sick daughter while my wife took her turn to rest. Q. Was the farm visible that night? A. The night was not so dark because the moon shone brightly in the sky. Q. What time did you go to bed after watching your sick daughter? A. I took my turn to sleep after midnight. Q. During the time you were looking after your daughter, do you remember hearing the outcry of a woman from somewhere outside your house? A. No. I heard no outcry from outside my house. DEFENSE COUNSEL: That is all. Obviously, the above testimonies contain much that is not connected to the rape issue. They are filled with details that usually accompany raw storytelling. When making a summary of them, whole sentences can go and these would not affect the essence of the story.

Relevant Facts Extracted Can you sort out the testimonies above and make a short summary of the facts that really matter to the case? This is not difficult, as you have earlier seen. Just remember the lesson you learned. First, try to identify the legal dispute involved in the above case. Obviously, the legal dispute consists in: (a) the government’s charge that Ronald raped Julia; and (b) the latter’s denial of the charge. Second, rewrite the legal dispute in the format of an issue to produce your principal issue then put down this issue in bold print, and place it right before you as you do your summarizing. Using this issue as guide, you can then peel away from the narrations all the facts that are not connected to such

issue. It will hold you to your aim. After rewriting your principal issue, it should read: WHETHER OR NOT RONALD RAPED JULIA. See how these lessons are applied to the testimony of Julia, reproduced below. The facts relevant to the issue and essential to the outline have been put in bold. The explanations for doing away with the non-essential facts have been bracketed and [italicized.] Transcript of Stenographic Notes (TSN) October 8 (Abridged and edited for study) COURT STAFF: (After swearing in the witness) State your name and personal circumstances. [Note: Obviously, you do not need to put in your outline this statement about the oath and the request made to the witness to state her personal circumstances. They do not yield any fact of the case.] WITNESS: I am Julia Torres, eighteen years old, single, and a resident of Barrio Talaan, Lian, Batangas. [Note: The rape event tells a story. To make sense, every story must say who are involved, what happened, when it happened, where it happened, how it happened, and possibly why it happened. These descriptions of Julia Torres, the victim, are essential to appreciating her humanity and put the legal dispute into its proper context. Consequently you need them in your outline.] PROSECUTOR: With the Court’s permission. Do you know Ronald Galang, the accused in this case? A. Yes, sir. [Note: When the witness says, “yes,” to a question, the facts contained in the question, which she affirms with her “yes” answer are implicitly incorporated

into the answer. If those facts are relevant, they should go into your outline.] He is there (pointing to the accused). Q. Why do you know him? A. He raped me. [Note: Surely relevant.] Q. Where did this happen? A. It happened on the rice field near Mario’s house. [Note: This answers the question “where?”] Q. How did Ronald rape you? A. I struggled to get free but he pointed a knife at my side and threatened to stab me if I called for help or persisted in fighting back. [Note: Shows how it was committed.] Q. So what did you do? A. Out of fear, I gave in [Note: Is this relevant to the issue? Of course, for it shows why the rape succeeded.] and he raped me. [Note: This is just a repeat of a previous statement.] Q. What did you do after Ronald raped you? A. I kept the matter to myself for a while. [Note: Is this relevant? Yes. Ordinarily, the victim of a grave wrongdoing would complain about it to someone. Julia’s silence could affect the credibility of her claim.] Q. Why? A. Because I was afraid of the trouble that will happen if my parents and brothers found out. [Note: Since this is Julia’s justification for incurring delay in reporting the crime, it should be relevant like the preceding answer.] They loved me so much. [Note: That her parents and brothers

loved her so much would have no bearing on the issue of whether or not Ronald raped her.] Q. For how long did you keep the matter to yourself? A. After two days of worrying and feeling bad, I finally told my aunt about it and she in turn told my parents. [Note: Her reason for changing her mind and eventually reporting the matter should also be considered relevant in judging her credibility.] Q. What was the reaction of your parents? A. They were quite furious and wanted to take the matter into their own hands but cooler heads prevailed. [Note: The reaction is limited to her parents and brothers; it is irrelevant to the rape issue.] Q. So what did you do after that? A. I went to the police to complain. [Note: Is this relevant? Yes. Complaining to the police about the commission of a crime lends credence to the claim that it took place.] Q. Is that all that you did? A. I also submitted myself to medical examination. [Note: Same reason as the above.] Q. When did Ronald rape you? A. He raped me on June 12 at 7 p.m. [Note: States the time.] Q. How did you meet Ronald on June 12? A. I went to the house of Celia in our barrio to attend a wedding party and I saw him there. [Note: This fact is essential to an understanding of the antecedents of the

alleged crime.] Q. Do you have any relationship with Ronald? A. None. He was only my suitor. [Note: Some say that this is irrelevant since it is possible for Ronald to rape Julia whatever be their relationship. Others think, however, that this is important since it shows that Ronald was attracted to Julia.] Q. What were your feelings during the party? A. I was in high spirit because I met a lot of friends and had a good time. [Note: Even if true, it does not help you know whether or not Ronald raped Julia.] Q. Do you recall any unusual thing that happened at that wedding party? A. Someone exploded firecrackers nearby and this caused a scare for a while. [Note: Same as preceding observation. Irrelevant.] Q. You said that you saw your suitor, Ronald, at the party. Did you have occasion to talk to each other? A. He wanted to talk to me but I ignored him because I disliked him for a suitor. In fact, I stayed away from him. [Note: This is relevant because Julia’s attitude towards Ronald, if true, would render it unlikely that she would let him escort her home from the wedding party or have consented sex with him.] Q. What happened after you ignored him? A. The married couple danced after supper and people joined in. [Note: This fact has no bearing at all to the rape case.] Q. What did you do after the dancing?

A. At 11 p.m. I took leave to go and started to walk home alone in the moonlight. [Note: This is relevant to the issue because it shows the circumstances immediately preceding the alleged rape.] Q. Did anything unusual happen during your walk home? A. When I was about fifty meters from Mario’s house, Ronald came from behind me and requested that he walk me home. Q. What was your reaction to him? [Note: Same observation as the preceding answer.] A. I really did not like him. [Note: This is redundant, a repetition of a previous statement.] I declined and doubled my steps. [Note: This also sets the stage for the rape event.] Q. So what happened after you walked faster? A. Ronald caught my arm and wrestled me to the ground? [Note: Use of force is an element of the rape.] Q. What kind was the ground over there? A. It was rough ground and dry. [Note: This could be relevant if it somehow sheds light on the issue of whether or not the rape took place.] Q. What did Ronald do while you were down on the ground? A. He covered my mouth with a hand so I could not shout. He pointed a knife at me and forced me to yield to him. [Note: This is no doubt relevant since it tends to show that Ronald raped Julia.] Q. Did it not bother you that you left the wedding party alone by yourself?

A. No, sir. Walking alone did not bother me because I knew everyone in the barrio. [Note: This is relevant to counter the claim that, being a woman, it was quite unlikely for her to be walking home alone.] Q. What route did you take going home? A. I took a short cut across Mario’s farm, in the direction of our house. [Note: This fact is needed to link the other relevant facts together.] Q. Can you describe the path that you took? A. The path was quite uneven and difficult to ply. [Note: This is probably irrelevant since it neither helps resolve the issue of whether or not the rape took place nor does it help tie the facts together.] Q. How was it? A. I was used to it and I managed very well. [Note: Same observation as above.] PROSECUTOR: That is all. One thing wonderful about analyzing the facts to sort out the relevant from the irrelevant is that such a process makes you see the component parts of the problem and their relationships. And this usually reveals to you some of the strengths and weaknesses of the testimonies and the documents, the keys to developing the arguments that you would eventually use when you start writing your paper. For example, in analyzing whether Julia’s claim that she walked home alone is relevant or not, one insight you got is that what she did was rather unusual for a woman in the barrio to do. This could put a cloud on her credibility. Follow the same procedure in sorting out the testimonies of the

medical examiner, Ronald Galang and Mario Perez.

Facts Set in Sequence Equally important to getting rid of irrelevant matters is putting the events in the order of their occurrence. When the sequence of the events is in disarray, with subsequent events told ahead of preceding ones or with frequent flashbacks to the past as the story unfolds, you are likely to get confused. You will be looking at items of facts that are out of context or detached from their surrounding circumstances. Take the testimony of Julia after the irrelevant facts have been thrown out. It is far from being narrated in order of time. Thus–– –– Julia Torres is eighteen years old, single, and a resident of Barrio Talaan, Lian, Batangas. –– She knows Ronald Galang, the accused. –– He raped her on the ricefield near Mario’s house. [Julia’s testimony begins with the consummation of the rape.] –– She struggled to get free but he pointed a knife at her side and threatened to stab her if she called for help or persisted in fighting back. [She then backtracks a little to narrate the struggle that preceded the sexual act.] –– Out of fear, she gave in. [Here, Julia returns to the consummation of the rape. In the next line, she moves forward again.] –– After the rape, she kept the matter to herself because she was afraid of the trouble that will happen if her parents and brothers found out. –– After two days of worrying and feeling bad, she

finally told her aunt about it and the latter in turn told her parents. –– She went to the police to complain. –– She submitted herself to medical examination. –– He raped her on June 12 at 7 p.m. [Julia’s story flashes back to the moment of the rape.] –– She went to the house of Celia in our barrio to attend a wedding party and she saw him there. [It is only here that Julia tells how her story begins.] –– Ronald was only her suitor. –– He wanted to talk to her but she ignored him because she disliked him for a suitor. In fact, she stayed away from him. –– At 11 p.m. she took leave to go and started to walk home alone in the moonlight. –– When she was about fifty meters from Mario’s house, Ronald came behind her and requested that he walk her home. –– She declined and doubled her steps. –– Ronald caught her arm and wrestled her on rough and dry ground. –– He covered her mouth with a hand so she could not shout. He pointed a knife at her and forced her to yield to him. –– Walking alone did not bother her because she knew everyone in the barrio. –– She took a short cut across Mario’s farm, in the direction of her house. [Julia ends her story at its middle

part, just before Ronald interferes with her journey home and rapes her.] If in writing your paper on the case, you choose to stick by the order in which Julia tells her story, you could confuse your reader. Yet, it is not difficult to sort out the facts and put them in the order of their occurrence. Just spot the point where Julia’s story logically begins, here, her encounter with Ronald at the wedding party, then, arrange after it the other events in the order of their occurrence until you reach the end of her story, her submission to medical examination. Are you done? When you are done sorting out the facts in Julia’s testimony, putting them in order, and drawing up your short summary, it might look like the one below. The non-essentials have been removed to reveal the essentials. Further, the order of the events has been straightened out to show the correct sequence. The narration has been rewritten to make the outline a third person narrative. Julia Torres, eighteen years of age, single, said that she went to the house of Celia at Barrio Talaan, Lian, Batangas, on June 12 at 7 p.m. to attend a wedding party. She saw her suitor, Ronald Galang, but ignored him since she disliked him. At 11 p.m. Julia took leave to go home alone. This did not bother her because she knew everyone in the barrio. She took a short cut across Mario Perez’s farm. About fifty meters from the latter’s house, Ronald came behind her and asked that he walk her home. She declined but Ronald caught her arm and wrestled her on the rough ground, covering her mouth so she could not shout. Julia struggled to get free but Ronald pointed a knife at her side and threatened to stab her. Out of fear, she

gave in and he ravished her. After the rape, Julia kept the matter to herself for fear of trouble if her parents and brothers found out. But, she finally told her aunt. They went to the police and she submitted to medical examination. What benefits do you derive from arranging the facts in proper order or sequence? The benefits are as follows: 1. The facts are easier to understand when put in the order of time. The reason is simple: they follow a natural order or flow. Actual human experience occurs in the order of time where one event follows another with the ticking of the hour. A story that jumps ahead, goes back to a previous event, and then returns to resume its advance where it temporarily dropped off is unnatural. It can be quite confusing. The human mind is not at ease with such a manner of storytelling. 2. When facts are arranged in the proper order, you would clearly see how each fact relates to or connects with others. Each fact acquires deeper significance when viewed along with related facts. That Ronald sat on a piece of log with Julia would be meaningless if seen in isolation. Before they sat on the log, she did not want to talk to him at all. After sitting alongside each other on the log, they had a quick romantic reconciliation. Their sitting on the log acquires significance. 3. When the factual versions of either side are put in order and matched, you would also be able to see clearly the areas where the respective versions agree and disagree. This in turn will furnish you with a balanced appreciation of each opposing claim. 4. Facts, properly arranged, prepare you for the work of writing up the facts of the case in your pleading or memorandum. Apart from the benefits already mentioned above, making a summary of your materials and arranging these in the proper sequence enable you to create a compact index to the facts of the case, including the testimonies and the documents you work on. Lawyers usually

handle a hundred cases at a time. With your compact summary, you do not have to re-read your voluminous materials each time you want to be reminded of the important details of the case. Your summary will be your map in guiding you throughout the course of trial of the case and during appeal.

Writing Exercises 1. For exercise, sort out the rest of the testimonies in the rape case, make a summary of the relevant facts, and arrange them in order. 2. You have seen how little data are important to a case when the facts have been sorted out for relevance and order. Consider the following sample case:

The Case of a Child and a Neighbor’s Dog Peter Banag, the father of a child who was attacked by a neighbor’s dog, has come to consult you about the possibility of his bringing a lawsuit against Arthur Sison, a neighbor. Peter brought along Fred Puzon to the interview. Fred witnessed what happened. The following is your interview with him: Interview with Mr. Fred Puzon, accompanied by client, Mr. Peter Banag. Sept. 21 Q. Fred, how old are you? A. I am twenty-one, Attorney. Q. What do you do for a living? A. I work with the government.

Q. Where do you live? A. I live at 24 Annapolis St., Cubao, Quezon City. Q. Did you see the dog attack Mr. Banag’s daughter? A. Yes, sir. I saw it bite Mary’s leg and even her arms as she fell to the ground. Q. Do you know who owned that dog? A. Yes, sir, the dog belonged to Arthur Sison. Q. What did you do when you saw the dog attack Mary? A. I immediately ran to help her but, unfortunately, I tripped on the gutter and fell on my hands and knees. Q. So what happened? A. I recovered quickly, moved on, and kicked the dog away. I then stood by to protect Mary from further attacks. Q. What happened to the dog? A. The dog kept on barking and looked as if it would attack us. Q. Did it attack you? A. No because Arthur came out of his house and sent his dog into his yard. Q. How about Mary, what happened to her? A. Arthur picked her up, called a tricycle, and brought her to a nearby clinic for treatment. Q. And you, what did you do? A. My friend then arrived and we left for the mall.

Q. Did you know how old Mary was at that time? A. I found out that he was about six years old. Q. How did you get to know Arthur? A. We are neighbors. He lives at 12 Annapolis Street, the same street where I lived. Q. Do you know why Mary was near Arthur’s house? A. She went there to buy ice-candies. Arthur had been selling ice-candies at his house for sometime. Q. How did you know that? A. I myself used to buy ice-candies from him especially during summer. Q. When did the incident involving Mary happen? A. It happened on September 12 at about 3 p.m. Q. What were you doing at that time? A. I was waiting on Annapolis Street for my friend Henry Uy to come and pick me up so we could go to the mall. Q. Do you remember what day of the week it was? A. It was a Saturday afternoon. Q. What did you see Mary doing from where you stood? A. I saw Mary approach Arthur’s gate and knock on it. But no one answered. Q. So what did she do? A. Still she kept on knocking softly at the gate. Q. What happened next?

A. A young girl of her age passed by and Mary waived at her. Q. So what happened next? A. Arthur’s dog came out to the yard. As Mary tested the gate by pushing it, the gate yielded and the dog jumped out. Q. What did Mary do? A. She held the gate open and called in saying that she wanted to buy ice-candy. “Pagbilan nga po ng icecandy,” she said. Q. So what happened? A. That was the time I saw the dog go after her. It attacked her from behind as she turned and ran to leave. Q. What was your reaction to what you saw? A. I was shocked for a moment. You asked Peter why he came to consult with you and he said that he asked Arthur to pay her daughter P20,000.00 in damages for what she suffered but all he got was a letter from him. He gave you the following letter. Mr. Peter Banag 16 Annapolis St., Cubao, Quezon City Dear Mr. Banag: I regret that I could not grant your demand to pay you P20,000.00 for the injuries that your daughter suffered on September 12 when she came to my house at 12

Annapolis Street, Cubao, Quezon City. I was not at fault. I was napping in my house on the afternoon your daughter came to our gate. I was awakened when I heard some commotion outside. I thought for a while that people were quarreling. But I heard someone shouting that my dog had attacked a child. I immediately got up and ran out. As I did, I saw Fred Puzon, our neighbor, trying to stop my dog, Prancer, from attacking your daughter, Mary, who lay on the ground just outside the gate. Other neighbors had started to come out to see what was happening. To augment the income of my family, I engaged in the business of selling ice-candies at my house beginning in March of last year. My sale had been brisk especially during the summer days. I always sold my ice-candies at the gate when people came to buy. That gate had an automatic closer. But at times, I left it unlocked from the inside because my children often went in and out. I had a dog in my house, Prancer, but my gate carried a written warning about the presence of that dog. Until that afternoon of September 12, Prancer had not attacked any one. I immediately stepped out into the street as soon as I can and sent Prancer inside. I was really surprised that you had allowed your daughter to leave the house without an escort. I myself took care that my young children did not go out alone. At any rate, I called a tricycle and brought Mary to a medical clinic nearby for treatment of her wounds and for an injection. Later, her mother followed us to the clinic and she comforted her daughter. I paid the medical

bill. I am sorry but I do not believe that I should be liable to your daughter for damages. Very truly yours, Arthur Sison Before you could give Mr. Banag your legal opinion on his case, you need to do pre-work. Sort out the relevant facts from the irrelevant and put the relevant facts in order. As in the rape case, try provisionally to identify the legal dispute and get a sense of the principal issue that divides your client, Peter, and his neighbor, Arthur. Have a clear understanding of that issue and use it to guide you in extracting the useful facts of the case. Then make a short summary of the facts from your client’s point of view as well as from that of Arthur. Put your work on paper.

5. Knowing the Applicable Law or Rule After working on the testimonies and documents in your case, you would have produced an outline of the facts that are relevant to the legal dispute that it presents. Now you are ready to make a search for those specific laws or rules that, applied to the facts, will either help or burden you in prosecuting or defending your side of the dispute.

Sources of Law or Rule There are two general sources of laws and rules: Statute law: This consists of laws and rules enacted by duly constituted rule-making authorities like Congress (Republic Acts and Batas Pambansa), the President (Presidential Decrees and Executive Orders), the Supreme Court (Rules of Court), local government councils (city or municipal ordinances), and administrative regulatory agencies (implementing rules and regulations). Case law: This consists of decisions of courts and persons or agencies performing judicial functions. These decisions interpret and apply statute law to specific situations. The rulings in these cases become legal precedents that, when invariably affirmed and used, become part of the law itself. But just how do you locate the right law and legal precedents? Two steps are suggested: First. Identify the general nature of the legal dispute involved. In the

case between Julia and Ronald, the legal dispute consists in the government’s allegation that Ronald had sex with Julia, employing force and intimidation in violation of law, and in Ronald’s denial of the charge. The case, therefore, concerns a crime that involves chastity. This should lead you to the statute law on rape, namely, Article 266-A of the Revised Penal Code. It reads: Article 266-A. Rape; when and how committed. –– Rape is committed — 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force or intimidation. x x x

x x x

x x x

Second. Having become familiar with the facts of your case, search for legal precedents that have more or less parallel facts. Nothing is new in this world. You will discover that there is hardly any new case that would have no parallel or similarity to a previous case that a court or quasi-judicial body has once decided. Find the rulings in those parallel case, whether for or against your side of the dispute, and you will have more confidence in charting the course of your arguments. Usually, it is the diligent that succeeds in tunneling the whole depth of case law to extract the gold nuggets he needs to prevail in his assigned case. Seize that advantage. In rape cases, both the prosecution and the accused will find Philippine jurisprudence rich in judicial precedents that will help their case. Consider the following: For the Prosecution In the review of rape cases, jurisprudence has laid

down the following guiding principles: a) an accusation in rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove the charge; b) considering that, in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and c) the evidence for the prosecution must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People v. Sta. Ana, G.R. 115657, June 26, 1998.) The failure of the victim to immediately report the rape is not necessarily an indication of a fabricated charge. (People v. Casil, 241 SCRA 285; People v. Montefalcon, G.R. 111944, April 25, 1995.) The absence of physical injury does not negate the commission of rape. (People v. Gapasan, 243 SCRA 53.) It would be improbable for a barrio girl of tender age and definitely inexperienced in sexual matters to fabricate a charge for no reason at all that will put herself and her family in a very uncompromising situation, which could even invite reprisal. (People v. Vitor, 245 SCRA 392.) Failure to shout or offer tenacious resistance does not make voluntary the rape victim’s submission to the criminal act of the accused. (People v. Marabillas, 303 SCRA 352.) Threatening the victim with a knife, a deadly weapon, is sufficient to cow the victim and it constitutes an element of rape. (People v. Alquizalas, 305 SCRA 367.)

For the Defense Although the “sweetheart theory” has not gained favor with the courts, such is not always the case if the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual in most cases, either the relationship is illicit or the victim’s parents are against it. (People v. Godoy, 250 SCRA 676.) In rape cases, the claim of the complainant of having been threatened appears to be a common expedient of face-saving subterfuge. (People v. Godoy, 250 SCRA 676.) Courts will take judicial notice of the fact that in the rural areas, young ladies are strictly required to act with circumspection and prudence and great caution is observed so that their reputation will remain intact. (People v. Godoy, 250 SCRA 676.) In rape cases, the testimony of the offended party must not be accepted with credulity. (People v. Godoy, 250 SCRA 676.) As to be reasonably expected, a ravished woman would instinctively call for help or at least flee her lecherous captor to safer ground when opportunity present itself. (People v. Sinatao, 249 SCRA 554.) It is strange that even as complainant asserts sexual abuse through violence and intimidation, she did not offer any resistance when assaulted, an unlikely impulse for a woman confronted with such an affront to her honor, and it is odd that her supposed rape appears to be punctiliously made. (People v. Sinatao, 249 SCRA 554.) Apart from above sources of laws and rules, you have rules that

derive from the wisdom of common experience. These are especially useful in resolving factual issues. Our jurisprudence is rich in these. For example: Errorless recollection of a harrowing incident cannot be expected of a witness, especially when she is recounting details of an experience so humiliating and so painful as rape. (People v. Calayca, 301 SCRA 192.) Fear has its bizarre way of rendering people immobile even in life-and-death situations. (People v. Realin, 301 SCRA 495.) Even the most trustful witnesses can sometimes make mistakes but such innocent lapses do not necessarily affect their credibility. (People v. Reduca, 301 SCRA 516.) Evidence to be believed must not only proceed from the mouth of a credible witness but it must also be credible in itself, such that common experience and observation of mankind lead to the inference of its probability under the circumstances. (People v. Perucho, 305 SCRA 770; People v. Lagmay, 306 SCRA 157.) Inconsistency concerning a minor matter does not affect the credibility of complainant’s testimony. (People v. Empante, 306 SCRA 250.) Wicklamps, flashlights, even moonlight or starlight may, in proper situation, be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. (People v. Adoviso, 309 SCRA 1.) The test to determine the value of the testimony of a witness is whether or not such is in conformity with human knowledge and consistent with the experience of

mankind. (People v. Dela Cruz, 313 SCRA 189.) Match the applicable laws or rules with the relevant facts of your case and you are ready to work on your arguments. Get a good book in legal bibliography and learn how to search for the statutes and judicial precedents that you need. These topics are not embraced in this book.

Facts Reexamined Having discovered the laws or rules that apply to your case, you should now be in a better position to review your summary of the facts and add to it the other relevant facts that you may have omitted. You could also subtract from your summary those facts that now appear irrelevant to the applicable laws or rules and precedents that you have discovered.

Writing Exercises 1. Go back to the case that Peter Banag consulted you with, namely, the dog’s attack of her little daughter. Presumably, you did your pre-work, sorted out the relevant from the irrelevant facts, and put your facts in order. Consequently, you must already have on paper an outline of the facts that you abstracted from your interview with Fred Puzon and from Arthur Sison’s letter to your client. Based on the issues and the facts, check out and copy the laws or the rules that should properly govern them. 2. Check out too those parallel cases that the Supreme Court has previously decided. See if the rulings and doctrines established in these cases could be cited against you or to your advantage. Put them all on paper as part of your pre-work.

6. Getting Into the Issues After making a short outline of the relevant facts of the case and after ascertaining the laws or rules that apply to those facts, your next step in pre-work is to pinpoint the specific issues that the conflicting claims of the parties present and to put those issues down in writing. Identifying the issues and writing them on paper are indispensable to all kinds of legal writing for a simple reason: everything you write— the facts, the law, the argument, and the relief—must take bearing on those issues. You write aimlessly when you are unable to understand the issues in your case or are unable to hold on to it. You have learned that, as a general rule, the legal dispute itself, recast in the format of an issue, provides the principal issue in every case. You also learned that knowledge of the principal issue is important because any argument you make will benefit you only to the extent that you are able to relate it to that issue. For example, the issue of whether or not Julia Torres ignored Ronald Galang at the wedding party because she disliked him (rather than, as Ronald claimed, she was angry with him because of the jokes played by his friends) is remotely relevant to the principal issue of whether or not Ronald raped Julia. In both cases, she ignored him and whether she did for one or the other reason will not shed much light on the issue of rape.

Issues in Multiple Legal Disputes

Not all cases present one legal dispute that converts into one principal issue. A lawsuit could involve multiple legal disputes and, therefore, multiple principal issues. This is particularly true in civil cases where there could be as many legal disputes as there are claims of violations of separate rights of the parties. In these cases, you should address each of the principal issues that the several legal disputes present. Occasionally, however, multiple legal disputes could converge into one controlling issue. For example, in a lawsuit, Rudy Solis, a music composer, claims that his friend Sergio Gomez appropriated as his own and sold to a record company a song that he (Solis) had created. Gomez’s denial of this claim would create the first legal dispute. A further claim of Solis that Gomez maligned him as a thief of intellectual property and Gomez’s denial of this additional claim would constitute a second legal dispute in the case. Gomez, on the other hand, claims that it was Solis who tried to steal the song from him. Solis’ denial of this claim would create the third legal dispute. A further claim by Gomez that the lawsuit was malicious and Solis’ denial of this claim would establish the fourth legal dispute. The claims, the denials, and the counterclaims produce four legal disputes in all because four rights were allegedly violated—two from each side. Yet all these dispute seem to depend on just one controlling issue: whether or not, Solis or Gomez, created the song. It would be helpful to be aware that this convergence to one controlling issue could happen. What is essential is to spot the controlling issue, the resolution of which serves as the key to resolving the multiple legal disputes.

Subordinate Controlling Issues Quite often, the resolution of the principal issue in a case depends on how a subordinate issue raised in connection with it is resolved. For example, the resolution of the principal issue of whether or not the tenant has violated the lease by not paying the rent might depend on

the subordinate issue of whether or not the rent may be deemed paid by a set off of the lessor’s separate debt to the tenant. A second example would be the case of the tenant who did not pay the rents, because he has in the meantime acquired ownership of the apartment from the bank that foreclosed the mortgage on it. The resolution of the principal issue would now depend on the subordinate issue of whether or not the tenant subsequently acquired ownership of the leased property. In these examples, the subordinate issues have become the controlling issues that would decide the outcome of the case. Consider another example. Relying on advertisements about the benefits to women of a facial cream called Maxim, Pacita Guerrero bought the cream from a supermarket and used it. She developed rashes that left scars on her face. She sued Maxim & Co., the manufacturer of the cream, for damages. But the latter invoked the small prints on the label of the cream container that warned against possible allergy in the use of the cream. Since every consumer has the right to buy only safe products from cosmetic manufacturers, Guerrero claims that Maxim & Co. violated this right when it sold to her a facial cream that harmed her face. Maxim denies this claim, however, stating that Guerrero has been forewarned of possible allergy and that she accepted the risk when she bought and used the cream. The fact that Guerrero suffered rashes in using Maxim’s cream is admitted. The legal dispute consists in Guerrero’s claim that Maxim violated her right to be sold only safe products and Maxim’s denial of the claim. The principal issue emanating from this dispute, then, is whether or not Maxim violated Guerrero’s right to be sold only safe products. The resolution of this issue depends, however, on the subordinate controlling issue raised by the nature of Maxim’s defense: whether or not Maxim has the right to market cosmetic products that could cause harmful allergy to some, provided that the product label discloses this risk.

In the case of the public works project director and his men who allowed a private contractor to deviate from the agreed building plan and reduce his scope of work yet got paid the original agreed price, these public officers may raise the defense that the government ordered an additional job done in exchange for the reduction in the scope of the earlier agreement. The issue would be whether or not such an agreement existed.

Relevant and Irrelevant Issues Quite often, the opposing parties make conflicting claims regarding the facts of the case in their pleadings or testimonies. Must you discuss all the factual issues raised by these conflicting claims? Not all issues raised in a case merit discussion and resolution. Only relevant issues matter. Conflicting claims on collateral matters, if discussed to establish the lack of credibility of a witness, could be relevant to the side issue of whether or not to believe the testimony of that witness. As a rule, however, only issues that when resolved determine the outcome of the legal dispute are relevant to the case. For instance, in the rape case, Ronald Galang claims that he was Julia Torres’ boyfriend but she denies it, asserting that he was merely her suitor. The issue regarding the character of their relationship is relevant because, while it is possible for a man to rape his girlfriend, it seems improbable that he would do so considering the love that binds them. What is more, a finding that Ronald was Julia’s boyfriend would establish her as a liar because she testified that he was merely her suitor. This would discredit Julia’s other testimonies. Conversely, irrelevant issues have no value in a case even if they are debated and resolved since they are of no consequence to the outcome of the legal dispute. For example, also in the rape case, the issue of whether or not Ronald is a good son for preferring to look after his parents rather than marry Julia is irrelevant. Being a good or a bad son would not really help resolve the legal dispute that centers on

Julia’s charge that he raped her on the night in question and his denial of the charge. Some good sons commit rape. Is the subordinate issue of whether or not the winning contractor in a government project is a “kumpare” of the head of the bidding committee relevant to the charge that the latter gave that contractor undue benefit? The answer is yes since that relationship could create a bias. Is the issue of whether or not the bidding committee head arrived five minutes late for the bidding relevant to that charge? Here, unless his late arrival resulted in some favor to a bidder, the answer is no. The lesson here is that you must distinguish between relevant and irrelevant issues, dropping the irrelevant and focusing only on the relevant. This is important because your discussion of irrelevant issues would produce no advantage and might even weaken your position in the case. On the other hand, if you make a mistake and drop a relevant issue, you might be forfeiting that issue to your client’s loss.

A list of All the Issues Issues are not too difficult to spot. There is an issue when the contending parties do not agree on a given point. To detect an issue, all you need to do is compare the facts and the laws that the two sides claim and identify the areas of their disagreement. For closer evaluation, it should make sense in pre-work to draw up a list of all the issues that the opposing claims of the parties present. But, first, it should equally make sense to take note of what the parties agree on. Take the rape case. Both Ronald and Julia agreed that they attended the wedding party at Barangay Talaan, Lian, Batangas, on the evening of July 12. They disagreed, however, on the rest of what happened. The following are the issues that their conflicting claims raise: 1. Whether or not Ronald was Julia’s suitor; 2. Whether or not she ignored him at the party because she disliked him;

3. Whether or not she walked home alone from the party; 4. Whether or not Ronald caught up with her on the ricefield and grabbed her; 5. Whether or not Ronald raped Julia, employing force and intimidation; and 6. Whether or not Julia was prompted by a genuine desire for justice in filing the charge of rape against Ronald. In the above, the dominant issue is the fifth, whether or not Ronald raped Julia, employing force and intimidation, since it embodies both the principal issue and the legal dispute that the case presents. As for the first issue in the list, whether or not Ronald was Julia’s suitor, it may be regarded as a subordinate issue since its resolution could shed light on the principal issue. As for the second issue in the list, whether or not Julia ignored Ronald at the party, we have already said that this is remotely relevant to the principal issue and so could be dropped from the discussion. But how about the other issues we identified above, namely, the third, whether or not Julia walked home alone; the fourth, whether or not Ronald caught up with her and grabbed her; and the sixth, whether or not Julia was prompted by a genuine desire for justice in filing the charge of rape against Ronald? Does each of these issues merit separate discussions in the argument? The answer is no. These three factual issues are intimately related and may be considered as mere circumstances absorbed in the controlling issue of whether or not Ronald raped Julia, using force and intimidation. Julia’s walking home alone and Ronald’s catching up with her to grab and wrestle her to the ground are closely related antecedents of the rape. There is no point in discussing these conflicting claims apart from the rape itself if no separate arguments could be arrayed in support of each. On the other hand, Julia’s desire to file criminal charges against Ronald is but a natural consequence of the rape, if it indeed took place. It, too, need not be addressed

independently of the controlling issue of whether or not Ronald had sex with Julia, using force and intimidation. Let us consider the following claims, based on an actual case. For study, they have been simplified to highlight the issues that the litigants tender for adjudication: Allan: I shipped frozen shrimps from Davao to Manila on Ben’s vessel, using a refrigerated container rented from Cesar. The shrimps arrived already spoiled in Manila due to the negligence of Ben or Cesar or both. Ben: I am not liable. The refrigerated container was defective. It was old. My vessel’s captain was highly efficient in navigation. Cesar: My refrigerated container was not old. It was in good condition. The vessel’s crew was negligent in checking the power supply to the container. I deny that the ship’s captain was a highly efficient navigator. I insured myself with Dante’s Insurance against damages to the shrimps while in my container during the voyage. Dante: I am not liable since Cesar did not file his claim within 10 days of the discovery of the damages as the policy required. The above presents two distinct legal disputes. There is a legal dispute, we said, when one party complains of a violation of his right by another who, on the other hand, denies such a violation. Under this definition, the legal disputes consist of: a) Allan’s claim that Ben and Cesar were negligent in handling the shrimps and Ben and Cesar’s denial of the claim; and b) Cesar’s claim that Dante unjustifiably refused to honor his liability under the insurance policy for the spoiled shrimps and Dante’s denial of the claim.

The conflicting claims of the parties generate seven issues. Are all these issues relevant to the legal disputes that the case presents? Let us consider each of these issues: 1. Whether or not Ben and Cesar were negligent in handling the shrimps (relevant since it is a statement of one of the principal issues in the case); 2. Whether or not Cesar is entitled under the insurance policy to reimbursement from Dante for liability for the damage to the shrimps (relevant being a statement of one of the principal issues); 3. Whether or not the refrigerated container was defective (relevant being determinative of Cesar’s liability); 4. Whether or not the refrigerated container was an old unit (although an old unit could be in good running condition, its age could give credence to the claim that it bogged down during the voyage, a relevant point); 5. Whether or not the vessel’s captain was highly efficient in ship navigation (this is definitely irrelevant unless it can be shown that the shrimps died of dizziness because of the vessel’s bumpy ride); 6. Whether or not the vessel’s crew was negligent in checking the power supply to the container (relevant being determinative of Ben’s liability); and 7. Whether or not Cesar filed his claim against the insurance policy on time (relevant being determinative of Dante’s liability). Which among the above issues are controlling, meaning that the outcome of the case hangs on their resolution? The third, whether or not the refrigerated container was defective, could determine Cesar’s liability; the sixth, whether or not the vessel’s crew was negligent in checking the power supply to the container, could determine Ben’s liability; and the seventh, whether or not Cesar filed his claim against the insurance policy on time, could determine Dante’s liability.

Factual and Legal Issues All too often, the conflicting claims of the parties could tender factual as well as legal issues. An issue is factual when the contending parties cannot agree that a thing exists or has actually happened. For example, there is a factual issue when the prosecution claims that the accused took and pocketed the victim’s cellular phone during the time they were both in the library while the accused claims that he did not and, in fact, never even went near the victim. The factual issue in this case is whether or not the accused took and pocketed the victim’s cellular phone. Suppose the complainant claims that the traffic officer demanded a bribe in exchange for returning complainant’s driver’s license while the traffic officer claims that he did not. Is the issue of whether or not the traffic officer demanded a bribe in exchange for returning complainant’s driver’s license a factual or legal issue? It is a factual issue. There is also a factual issue when the plaintiff claims that the food he ate at the defendant’s restaurant was spoiled while the latter claims that it was not. Here, the factual issue is whether or not the food plaintiff ate in the defendant’s restaurant was spoiled. On the other hand, an issue is legal when the contending parties assume a thing exists or has actually happened but disagree on its legal significance or effect on their rights. For example, in a case of rape, the prosecution and the defense might agree that the male organ of the accused merely touched the sex organ of the victim and did not penetrate it, yet they could disagree on whether or not the fact amounted to rape. You have here the legal issue of whether or not there is rape when the male organ merely touched the surface of the female organ. Suppose the respondent in an administrative case admits falsifying his timecard to collect overtime pay from the government agency he

works for. Is the issue of whether or not respondent has, in falsifying his timecard to collect overtime pay, committed grave misconduct that warrants dismissal a factual or legal issue? It is a legal issue. There is also a legal issue when there is an agreement that the deceased died of cancer because of heavy smoking, but the family he left behind and the cigarette company being sued disagree on the latter’s liability for such death. The legal issue in this case then is whether or not cigarette companies are liable for deaths caused by smoking their products.

Correct statement of the Issues Because the statement of the issue or issues in a case is critical to an effective and focused legal writing, every issue should be correctly phrased. One. For instance, why are the statements of the issues preceded by the words “whether or not”? By using the introductory words “whether or not,” you automatically incorporate the opposing views, the positive and the negative, into one statement of the issue. It, therefore, makes for a fair statement of that issue. Two. You will notice that the issues listed above are stated in terms of what Julia claims the fact to be (e.g., whether or not Ronald was her suitor) rather than in terms of Ronald’s opposite claims (whether or not she was his sweetheart). The reason for this is that the plaintiff or the accuser in a case always bears the burden of proving the affirmative of his or her claims. As a general rule, therefore, the issues to be tried and decided are best defined in terms of those affirmative claims. For example, will you say “whether or not the defendant was negligent in driving his car” or “whether or not the defendant was careful in driving his car?” Since the plaintiff or the accuser in a case always bears the burden of proving the affirmative of his claim, the issues to be tried and decided are best defined in terms of those

affirmative claims. An exception to this is when the defendant, the respondent, or the accused in the case admits the facts constituting the claim against him but raises a defense that exempts him from liability under it. For example, the accused in a criminal case might admit that he killed his victim yet pleads self-defense to avoid liability. In such a case, the issue would be defined in terms of the defense he invokes: whether or not the accused killed the victim in self-defense. Three. Another thing is that the statement of the issue must be fair, not slanted in favor of a party. For example, the statement of the issue “whether Ronald used force or intimidation in raping Julia,” is not fair since it already assumes that he raped her. The reader will detect the resort to a slanted statement of the issue and doubt the integrity of the advocating lawyer. Four. The statement of the issue should also be comprehensive, leaving no relevant point outside its embrace. For example, in the rape case, “whether or not Ronald raped Julia,” is sufficiently comprehensive to cover all subordinate issues of significance, including whether or not the two are sweethearts. Five. The statement of the issue must be specific and clear. For instance, in a case involving the constitutionality of a law passed by Congress, the statement of the issue, “whether or not the law is valid,” is too ambiguous. It lacks sufficient details to enable the reader to understand what matter is involved and follow the arguments in the case. A clearer statement of the issue would be “Whether or not the Bouncing Checks Law violates the constitutional right against being imprisoned for non-payment of debt.” The writer must modify his statement of the issue to cover the area of the case that he has chosen to attack or defend. Six. Try at all times to capture in your statement of the issue, the gist or essence of the specific violation of right that the defendant committed. Take the case of the debtor who refuses to pay what he

owes under the promissory note that he executed in favor of another. Is it sufficient to say that the issue is “whether or not the debtor is liable to the creditor?” No, you should rather say that the issue is “whether or not the debtor unjustly refuses to pay his debt under a promissory note that he issued in favor of the creditor.” Is it sufficient to say that the issue is “whether or not the respondent building official violated Section 3(b) of Republic Act 3019?” No, it would be better to say, “whether or not the building official issued to the owner an occupancy permit for a building that has inadequate fire exits, in violation of Section 3(b) of Republic Act 3019.” An issue stated in this way will keep you on course when you write your memorandum, position paper, decision, or petition.

Threshold Issues One final point in this discussion: you must not overlook threshold issues that cases sometimes present. Threshold issues are those that could slam the door to any judicial consideration of the case on its merits. For instance, a court could not decide a case falling outside the scope of its authority, a case filed in the wrong place, a case filed by the wrong party, or a case filed after too many years. Usually, threshold issues are brought out by a motion to dismiss in a civil action or a motion to quash in a criminal action, filed before the issues on the merit of the case are joined by the filing of an answer in the first or a plea of not guilty in the second. The resolution of these threshold issues and similar others takes precedence over the main legal disputes. For example, in the rape case, if the criminal information is filed with the Municipal Trial Court rather than the Regional Trial Court where it belongs, there is a threshold issue of whether or not the former court has authority or jurisdiction to try and decide the case. In any event, pleadings that address threshold issues are crafted in the same way as other legal writings.

Writing Exercises 1. Presumably, you have, as part of pre-work, defined the legal dispute, identified the laws that govern the case of the child attacked by a dog. Hopefully, you put these all on paper. Your next task is to identify the principal issue or issues that the legal dispute or disputes present as well as the subordinate issues following the example given above in the rape case. Then, choose from the issues you have identified, the controlling issue or issues that when resolved will put an end to the dispute.

7. Roughing Out the Argument You have made an outline of the relevant facts; you have located the laws or rules that apply to those facts; and, finally, you have identified the issues in the case. You are now ready to take the next step in prework: roughing out your arguments. This, in a sense, would be like drawing up your plans before actually constructing your building. Roughing out your arguments would give you an overall picture of your presentation and provide purpose and direction to your writing.

Balanced Presentation But first, take a familiar story that begs for an effective argument. A son failed in one of his major subjects in college because he spent too much time with his barkadas. His father warned him about such a result but he did not mind him. When it happened, the father was so angry that he refused to give his son money for re-enrollment. The son now approaches his father to plead his case with him. If you were the son, how would you present your case? Here is one way: Dad, I want to re-enroll this semester [he speaks of what he wants to do, but not about what his dad wants to do; and he fails to state the issue that his dad has to decide]. I would be happy if you let me re-enroll, dad, despite

what happened [he speaks of what will make him happy, but omits to mention of what will make his dad happy]. If you don’t let me re-enroll, I will surely be unable to finish my studies. [Shifting the blame.] How could you do that to me? [Shifting the burden of explanation.] Do you think the father would give in to his son’s request? Chances are he would not. The son wronged his dad by ignoring his valid warning. When the son failed to value the father’s effort in financing his schooling by not studying diligently, his father’s moral and social obligation to finance his schooling should be deemed over. Meanwhile, the son did not plan his argument ahead of time and did not see the issue from the father’s point of view. His efforts were doomed from the start. If he prepared well, the son would probably have followed a different tack. He would have said instead: Dad, please consider letting me re-enroll. I made a mistake when I ignored your warnings concerning my barkadas. I hope you could forgive me. I really miscalculated my chances in that subject. But as you can see, I passed my other major subjects with high grades. I have learned my lesson and I promise not to repeat my mistake. In fact, as you can see, I have stopped going out with my barkadas altogether. Dad, could you give me another chance? Does this approach have a better chance? Definitely. It is forthright, honest, and realistic. And it shows to the father what he can still do for his son after what he did. First, the son stated clearly

what the issue is and that it is up to his father to decide it. (Dad, please consider letting me re-enroll.) Next, he acknowledged the argument against him (I made a mistake when I ignored your warnings) but he immediately argued that it was a mistake his father could choose to overlook (I hope you could forgive me). Then, he brought up the arguments in his favor (I passed my other major subjects with high grades … I promise not to repeat my mistake … I have stopped going out with my barkadas altogether). Finally, he appealed to his father’s good sense (Dad, could you give me another chance?). Any attempt to persuade someone to accept your opinion or point of view must, much like the above, consider the structure of a balanced thesis presentation: First –– A clear statement of your thesis or where you stand on the issue to be resolved; Second –– The arguments that can be made against your position but with an explanation that those arguments do not doom such position; Third –– The arguments in favor of your position; and Fourth –– An appeal to the good sense of the person or persons who will resolve the issue. (In writing a decision, this fourth element may, of course, be omitted by the judge since he is the person who will resolve the issue. Nonetheless, the judge must convince the reader that his decision is correct.) The above structure represents the psychology of every balanced attempt to win others to your point of view in a controversy. But how do you guard yourself against the mindless approach that characterizes many legal writings? There is only one answer. Complete your prework. Plan and rough out a balanced approach to your arguments

before writing them up. When you have done these, you would be able to scout the whole terrain that your writing would cover, aided by a map in your hand. You would be able to see the relevance and strengths of your argument and decide how to most effectively present them when you write. How do you rough out your arguments so you could see a broad picture of how they look when you are finished? Since the main thing in roughing out your arguments is to see how they balance, use a balance sheet format. Recall that when you sorted out the facts of your case and looked up the laws or rules that applied to those facts, what guided you was your “statement of the issue” that the case presented. Now, however, in crafting your arguments, you need to be guided by your thesis statement or proposition. As counsel for Ronald, your thesis statement would be: “Ronald did not rape Julia.” Write it clearly at the top center of your balance sheet. (Where You Stand on the Issue) RONALD DID NOT RAPE JULIA

What is the point in adopting as your balance sheet heading your thesis statement that “Ronald did not rape Julia,” rather than your statement of the issue, “whether or not Ronald raped Julia.” The point is that the thesis statement represents the goal you set for your arguments. It will give you direction in shaping and coloring your arguments. Next, write on the left column of your balance sheet the arguments that can be made against you, and on the right column write how such

arguments do not doom your case. In addition, write also on the right column an enumeration of the positive arguments in your favor. Finally, state underneath the arguments your closing statement, an appeal to the good sense of the reader. (Where You Stand on the Issue) RONALD DID NOT RAPE JULIA (Arguments Against You)

(Arguments in Your Favor)

(Appeal to Your Reader’s Good Sense) You need to write only the gist of the arguments against you or for you. It is during the write-up stage that you will develop and expand these arguments and make them convincing. Still, your statement of each of your arguments must be concise, clear, and logical so that, looking at them on your balance sheet, you will be able to see the whole picture.

Anatomy of a Legal Argument

But where will you get the arguments with which you will fill up your above balance sheet? You should understand what an argument is. An argument is a reason you offer to prove your thesis or proposition. For example, in the son’s case, his thesis or proposition is that “his dad should let him re-enroll in school.” What reason can the son offer to prove his thesis correct? One reason the son can offer is that, “although he failed in one subject, he did not do so badly since he got high grades in his other subjects.” He still merits support from his dad. In the rape case, your thesis or proposition might be that Ronald did not rape Julia. What reason can you offer to prove your thesis correct? A reason that you could offer is that, although Mario lived near where the rape supposedly took place, he did not hear Julia’s outcry. Is this a good reason? Yes, since it makes sense. The great bulk of legal arguments are in the mold of the classic categorical syllogism. A most basic example of this is the following: Major premise: All men are mortal. Minor premise: Jose is a man. Conclusion: Jose is mortal. The major premise, all men are mortal, is a statement of a generally accepted rule or truth. The minor premise, Jose is a man, is a statement that brings a particular thing or individual within the class or situation covered by the generally accepted rule or truth. The conclusion, Jose is mortal, is a statement that follows after the major and minor premises, deducing that the generally accepted rule or truth applies to the particular thing or individual. Here is an example. Arguing from common experience, a witness can be discredited in this manner: People who lie cannot be believed. Armando lied in his testimony.

Therefore, he cannot be believed. You need to understand that every sound legal argument is a combination of the right rule and the right fact. For example, what argument can you make if your thesis or proposition is that “Jose should be punished for crossing the red light.” First, you can state the rule that “Crossing the red light is punishable by law.” Next, you can state the fact in Jose’s case that “Jose crossed the red light.” Finally, you can state your conclusion that “Therefore, Jose should be punished by law.” To sum up: Crossing the red light is punishable by law. Jose crossed the red light. Therefore, Jose shall be punished by law. The above argument consists of three statements: the rule statement (crossing the red light is punishable by law), the case fact statement (Jose crossed the red light), and the conclusion statement (therefore, Jose should be punished by law).

The Key Fact in Rules You will note that the rule statement (crossing the red light is punishable by law) has a fact component for its subject, namely, “crossing the red light.” This is logical because all rules identify the facts on which they will operate or apply. We will call this fact component of the rule (crossing the red light in our example) its “key fact.” It is a key fact because its presence in the case of Jose opens up such case to the application of the rule. To further illustrate this, the law that punishes theft identifies the key fact to which the law applies. It applies, according to the penal code, to “the taking, with intent to gain but without violence against or intimidation of persons nor force upon things, of the personal property of another without the latter’s consent.” If the case fact involving a

particular individual, say Cesar, shows that he took the property of another under the circumstances described in the law, then the law will apply to Cesar, given that its key fact is present in his case. When the key fact component of the rule statement is present in the case fact statement, you have a positive match. The rule applies to the case fact. Thus: Any person who, with intent to gain but without violence against or intimidation of person nor force upon things, shall take the property of another without the latter’s consent, shall be punished for theft. Cesar took, with intent to gain, Mario’s cellphone from his desk when his back was turned and without his consent. Consequently, Cesar shall be punished for theft. What argument can you make, on the other hand, if your thesis or proposition is in the negative, namely that David cannot be punished for crossing the red light? First, you can state the rule that “beating the red light is punishable by law” (the rule that governs beating the red light) “but crossing the yellow light does not amount to crossing the red light” (an interpretative rule that excludes crossing the yellow light from the meaning of crossing the red light). Next, you can state the case fact that “David actually crossed a yellow light.” Finally, you can state the conclusion that “Therefore, David cannot be punished by law.” Thus–– Crossing the red light is punishable by law. But crossing the yellow light does not amount to crossing the red light. David actually crossed a yellow light. Therefore, David cannot be punished by law. The key fact on which the general rule operates is “crossing the red light.” But this is not found in the particular case of David for he “actually crossed a yellow light.” Consequently, the punishment due to

persons who cross red lights does not apply to David. His crossing a yellow light repels the operation of the law, producing a negative conclusion. Let us take another example. The law gives the right to bear the surnames of the father and the mother only to legitimate children. If the issue is whether or not the law will apply to a particular child, the key fact in the law (the fact that the child needs to be legitimate) must be present in his case. If the case fact is that Justo is an “illegitimate child,” the law does not apply to him. Justo has no right to bear the surnames of his father and his mother. The rule does not apply to his case fact. The above arguments, positive as well as negative, typify the classic categorical syllogism, applied to legal writing. This is made up of three statements: (1) the statement of a rule that applies to a given fact or set of facts (the rule statement); (2) the statement of the fact of a particular case that opens up such case or closes it to the application of the rule (the case fact statement); and (3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement).

The Case Fact As already stated, rules usually identify the key fact upon which such rules will apply. Only when this “key fact” exists in a particular case, i.e., in the “case fact” will the rule apply to such case. Is it the rule that dictates what the fact of a particular case ought to be or is it the fact of the case that dictates what the rule ought to be? Of course, the answer is that it is the fact of a particular case that determines what will govern it, not the other way around. In our first example, we can apply the rule that “crossing the red light is punishable by law” to the case of Jose because “Jose crossed the red light.”

When preparing your argument, therefore, begin by ascertaining the fact or facts of your case. Once you know the facts, you can check these out again whatever rule is proposed to govern them. But it is not that easy. Theoretically, the facts of a case do not change. Facts are facts and you cannot alter them. Unfortunately, however, putting your finger on the correct facts of a case can be difficult since the evidence of those facts can be marred by the witness’ bias, by human error in observing them, by lack of ability to communicate what one observed, and, not too rarely, even by a motive to lie. And, even when the correct facts of a particular case or its “case fact” has been ascertained, you will observe that the “rule” that applies to it can significantly change as you turn that case fact around, showing its different hues and contours. For this reason, prepare to deal with issues regarding what your case fact truly is.

Meaning of “Rule” Once you have ascertained your case fact, where will you find the “rule,” the key fact of which is in favor of or against your case fact and which would either produce the positive or negative conclusion that you desire? The term “rule” used in this discussion has a broad scope. As previously mentioned in Chapter 5, Knowing the Applicable Law or Rule, includes legislated rules like: a. Constitutional provisions. Where the fact of the case is that the government has taken possession of your client’s land for road building without paying him for it, you can invoke the Constitutional provision that “private property shall not be taken except upon payment of just compensation” to prove your thesis that your client is entitled to compensation. b. Statutory provisions. Where your opponent’s client pleads lack of liability for a wrong he has committed because he did not know that

the law forbade it, you can invoke the provision of the civil code that “ignorance of the law excuses no one” to prove your thesis that he is liable. c. Rules of Court provisions. Where the accused offers money to the complainant for dropping the case, you can cite the provision of the Rules of Court that “an offer of compromise by the accused may be received in evidence as an implied admission of guilt” to prove your thesis that the accused is guilty of the charge. But the “rule” also includes case laws or judicial precedents. Judicial precedents are the most convenient source of argument. The hardworking lawyer or student, the plodder, will discover a treasury of arguments in the law reports. In real life, no problem is new. Somewhere, the issues you now face have been argued and resolved in a variety of ways. All you have to do is tap the law books where they are indexed and preserved. Take for example the defense of alibi. If your opponent invokes it, you can easily put it down by invoking an abundance of precedents that says: The defense of alibi, as a rule, is considered with suspicion and is always received with caution, not only because it is inherently weak and unreliable, but because it can be easily fabricated. (People v. Paraiso, 349 SCRA 335.) Alibi cannot prevail over positive identification of the accused by the prosecution witnesses who have no motive to lie. (People v. Lovedorial, 349 SCRA 402.) If you are on the other side, a counterargument exists: Alibi can be believed where it can be shown that the accused was at another place at the time of the commission of the offense and it was physically impossible for him to be at the place where it happened.

(People v. Plana, 370 SCRA 542.) And when the prosecution is unable to establish the guilt of the accused, alibi assumes importance. (People v. Morales, 363 SCRA 342.) The “rule” also includes widely accepted truths that derive from logic, common sense, or even common experience. For example, if the issue is whether or not the accused killed the victim in self-defense, you can put down such defense by evidence that shows that he died of a gunshot wound on his back. Common sense dictates that shooting the victim on his back is incompatible with defending oneself. Another good example is the truth that “it would be improbable for a barrio girl of tender age and definitely inexperienced in sexual matters to fabricate a charge of rape for no reason at all.” This is a “truth” developed from observance of common life in the countryside. You can invoke it as a form of rule in arguing the credibility of the complainant in a rape case.

Roughed Out Arguments Having seen the anatomy of every sound legal argument, you should be ready, if you were counsel for Ronald, to rough out your argument on the rape charge against him. On the left column of your balance sheet, one argument that your opponent can make out against Ronald is that “vaginal lacerations usually found in rape victims were found in Julia.” Spelled out, the applicable rule here would be that “vaginal lacerations are usually found in rape victims.” The case fact is that “Julia had vaginal lacerations,” the conclusion would be that she probably had been raped. Ronald might in turn state on the opposite column of his balance sheet his counter argument that “as a virgin Julia could have

lacerations during consented sex.” Spelled out, the applicable rule here is that “true, vaginal lacerations are usually found in rape victims but (stating an exception to the rule) such lacerations can also be found in consented sex with a virgin.” Applying this rule to the case fact that “Julia was a virgin,” the conclusion would be that “the lacerations found in her do not necessarily indicate rape.” When placed in your balance sheet of arguments, the above should read: (Where You Stand on the Issue) RONALD DID NOT RAPE JULIA (Arguments Against You) Vaginal lacerations usually found in rape victims were found in Julia.

(Arguments in Your Favor)

As a virgin, Julia could have vaginal lacerations during consented sex.

Some students who were given the task of making an outline of their arguments in the rape case showed a tendency to state only either the case fact statement or the rule statement in their arguments. And a good number of them did not know how to look for meaningful points that support their thesis or proposition. They confessed that their undergraduate courses simply did not give them that kind of preparation and training. For example, a student regarded as a strong argument to prove that Ronald did not rape Julia the point that “he and she were sweethearts.” (Where You Stand on the Issue)

RONALD DID NOT RAPE JULIA (Arguments Against You)

(Arguments in Your Favor) He and she were sweethearts.

It might be a good argument but it states only the case fact in his argument, omitting the applicable rule, which, presumably, is that “it is not likely for a man to rape his sweetheart.” The better way to rough out the argument is to say, “Being sweethearts, it was not likely for Ronald to rape Julia.” Both the case fact and the rule are incorporated in this outline argument. A student, taking the side of the prosecution, attempted to refute Ronald’s above argument but he simply stated as counterargument the case fact that “Ronald was only a suitor.” (Where You Stand on the Issue) RONALD RAPED JULIA

(Arguments Against You)

Being sweethearts, it was not likely for Ronald to rape Julia.

(Arguments in Your Favor) Ronald was only a suitor.

Since the student did not state the applicable rule in his outline

argument, he could very well end up saying, “it is likely for a suitor to rape the girl he courts.” But, not being consistent with human experience, this argument is not plausible. Probably, the student’s unstated rule is that “uncorroborated claims, when denied by the adverse party, may be considered self-serving.” In such a case, he should combine this with his “case fact” and produce the counterargument that: “But, uncorroborated, Ronald’s claim is selfserving since Julia never admitted it.” An alternate counterargument is that: “Being only a suitor, Ronald was capable of committing the rape.” (Where You Stand on the Issue) RONALD RAPED JULIA (Arguments Against You)

(Arguments in Your Favor)

Being sweethearts, it was not likely for Ronald to rape Julia.

But, uncorroborated, Ronald’s claim is self-serving since Julia never admitted it. Or, being only a suitor, he was capable of the crime.

The lesson here is that you must think your argument through to its essential elements so you could test its validity or soundness. Let us go to another example, this time of a student in search of an argument to support his view that Ronald raped Julia. The student wrote this point in his favor: “Julia ignored Ronald during the wedding party so this made him feel bad.”

(Where You Stand on the Issue) RONALD RAPED JULIA

(Arguments Against You)

(Arguments in Your Favor)

Julia ignored Ronald during the wedding party, making him feel bad. Is the above a good argument? No. It does not appear to have any reasonable relation to the student’s thesis that Ronald raped Julia. The beauty of a balance sheet format is that your thesis, “Ronald raped Julia,” is written prominently on top of your proposed arguments. To test the validity of the argument that the student raised, just see if his thesis follows from it. Thus: if he says “Julia ignored Ronald during the wedding party, making him feel bad,” could you deduce from this that “Ronald raped Julia?” When the two ideas do not connect, the argument is invalid. Below are the other roughed out arguments and the closing statement that Ronald could use. See if they connect to the writer’s thesis or proposition. (Where You Stand on the Issue) RONALD DID NOT RAPE JULIA

(Arguments Against You)

(Arguments in Your Favor)

Because women will rarely admit to having been raped unless true, a rape victim’s testimony can stand alone.

But not when the woman’s testimony, like that of Julia, is inherently incredible.

Absence of bruises on her body despite rough grounds negates rape by use of force. Being a barrio woman, it is likely that someone like Ronald walked her home at that late hour. (Appeal to Your Reader’s Good Sense) It is but fair that testimony inconsistent with common experience is not believed.

Creative Thinking When you have exhausted legislated rules and court precedents in search of suitable arguments that will support your thesis or proposition and these do not satisfy you, try creative thinking. Let your subconscious mind take over the problem. This process often yields indigenous solutions and pleasant surprises. And the steps are simple. First, be sure that your mind gets all the data and inputs about the case that your source materials would yield. Working like a computer, the mind will process only those facts that have been put into it.

Second, pose the problem to your mind. For example, ask your mind the question: “How can I prove that Ronald did not rape Julia?” Repeat this question to yourself a number of times until you are satisfied that it has been planted into your mind. Third, forget about the case. Take time out and let your subconscious mind do the work. Go to sleep. You will be surprised that the answer will pop out of your head in the middle of what you are doing. Be prepared to jot it down immediately.

Arguments that Build Up Apart from being able to form a combination of the right “rule” and the right “case fact” to support your thesis or proposition, here is a list of other arguments that you can use to build up your side of an issue: a. The favorable testimony comes from a credible witness. The testimonies of those who are involved in the case or their relatives and friends are often regarded as partisan. Those with no bias, one way or the other, are excellent witnesses. For example, the medico-legal expert and the farm owner, Perez, in the rape case have no bias or motive to testify falsely in the case. b. The party’s version is inherently credible and consistent with common experience. The truth of narrative stories is often judged by its compatibility with common experience. For example, if the fact that Ronald and Julia were sweethearts can be established, you can believe his claim that they forgot themselves when one evening they stopped and sat down in the middle of a rice field. c. All the elements or requisites of a valid claim or defense have been proved. Some laws prescribe factual elements or requisites in order for claims or defenses to be operative. You make a good argument when you prove that

you have established them all. For example, the prosecution in the case against Ronald can show that it has established all the elements of the crime of rape to warrant conviction.

Arguments that Destroy Pointing out that the opposite party invokes the wrong “rule” or that he has failed to prove the “case fact” component of his argument are the basic ways of destroying his thesis or proposition. Below are some additional arguments that provide the same result. a. The argument raised is irrelevant. An argument is irrelevant when it does not help resolve the issue one way or the other. When your opponent says, “Ronald is immoral and irresponsible because he refuses to marry Julia even when he admits that he took her innocence from her,” you can say, “The argument is irrelevant since being irresponsible does not make a man a rapist.” b. The argument has little weight given the other considerations in the case. Here you can assume that your opponent has made a valid argument but you hasten to state that other considerations outweigh that argument. Thus, when your opponent says, “Ronald’s failure to see Julia’s parents to explain his side shows his guilt,” you could say, “That failure can be explained. Their sons would have killed Ronald if he immediately went to see them after their daughter cried rape.” c. The argument is baseless. A claim made with no fact to support it is baseless. When your opponent says, “Julia is a good, innocent girl who would not cry rape if it were untrue,” you could say, “But, that is baseless since there is no evidence to show that she is good and innocent.”

d. The argument is contrary to common experience. As a rule, claims that go against ordinary human experience are bizarre and cannot be believed. When your opponent says, “Julia was not afraid to walk home alone through empty rice fields near midnight,” you can say, “That is unbelievable. No woman in her right mind will do that.” e. The argument is inconsistent with undeniable facts. No assertion can defeat facts that cannot lie. When your opponent says, “Julia wasted no time to file her complaint against Ronald,” you can say, “The record shows that she showed up at the police station two (2) days after the alleged rape.” f. The argument is inconsistent with a prior claim. Persons who say one thing now and another thing later cannot be relied on to tell the truth. When your opponent says, “Julia testified that Ronald was her suitor,” you can say, “She once admitted to a friend that she was his sweetheart.” The above enumerations of arguments that build up or destroy are of course not intended to be exclusive. The mind and the imagination are limitless and no list such as what has been drawn up above can contain them. Further, this book uses simple cases for easy illustrations but real cases can be complex and can bring forth arguments that cannot be captured in a box. You must consider other arguments or reasons and use them so long as they tend to support the stand you have taken. If you learn the basic lessons in this book, doubtless, you can handle the demands of more difficult and complex legal writings.

Pre-work Reviewed As pre-work comes to an end, a summary of the steps taken under it

should round up the discussion. Pre-work consists of the following steps: a. Ascertain the legal dispute. After going over your materials quickly, do you detect the presence of a legal dispute where one claims that another has violated his right and where this other denies such violation? Rewrite your statement of the legal dispute in the format of an issue and put this down in writing to guide you in making an outline of the facts and in looking for the laws and rules that apply to such facts. b. Make an outline of the relevant facts. Now go over your materials again, this time more closely, and make an outline of the relevant facts of the case, discarding the irrelevant. Afterwards, complete your work on the facts by arranging them in correct order. c. Identify the Issues. Identify the principal issue or issues raised in that case and, if present, the subordinate controlling issues as well. Make a list of all the other issues that the parties to the case raised, then choose from these what are relevant to the resolution of the legal dispute or disputes involved. d. Rough out your argument. Rough out your argument on a paper, using the balance sheet format. Write on top of the balance sheet the stand you take on the relevant issue presented. Write on the left column of the balance sheet the arguments against you and on the right column your refutation of such arguments plus the positive arguments in your favor. State only the gist of those arguments. At the bottom of the balance sheet, write your closing statement, usually an appeal to the good sense of the reader.

Writing Exercises If you did the work suggested in this book, you would no doubt have identified the principal issue or issues as well as the subordinate issues that the legal dispute or disputes in the case of the girl that a neighbor’s dog attacked present. Now, decide whether or not you will recommend to your client, Mr. Banag, the filing of a lawsuit against Mr. Sison. Rough out on paper the arguments that you can use in support of the advice that you choose to recommend to him.

8. Introducing the Issues After completing pre-work, you are now ready for the write-up stage. You cannot submit your outline of argument to the court because it will probably not make any sense to the judge. You alone would be able to understand your outline. Consequently, you have to flesh out your outline-argument, give it color and shape, and make it strong and convincing to your reader.

Need for Introduction At the start of this book, we defined legal writing as the things that lawyers write to win others over to their point of view. But you cannot just hit your reader with your point of view respecting an issue without telling him the circumstances of the case that brought about the issue. He just would not be able to see your point of view. An argument set forth without some preamble of facts can be likened to an answer that a student writes on his examination notebook. It represents his point of view on the question that the professor asked in the test paper. To illustrate this point, take this answer in a political law question. 3. He is not right. Although the Constitution provides that no law shall be passed impairing the obligations of contract, the Supreme Court has ruled that the police

power of the state empowers the legislature to enact laws regulating contracts in the interest of the public welfare. Every contract is presumed to carry with it the reservation that it shall be subject to laws passed subsequent to their perfection. In this case, the law in question is a valid exercise of police power since it seeks to protect the interest of the poor. Therefore, Gregorio is wrong. The law is constitutional. Can you fully grasp what the student’s argument above is all about? Not likely, since you do not have the benefit of knowing the background facts and the issue behind the answer. This is not to say, of course, that a direct answer like the above will not work in a classroom setting. It will. We may presume that the professor who will check the answer knows the question that the student addresses. It will make no sense, therefore, for the student to repeat the professor’s question in his answer. Unfortunately, most lawyers bring into their law practice their mindsets as students. They would often hit the judge directly with their argument without adequately introducing the issue that they present to him for resolution. They wrongly assume that the judge has the background facts planted firmly in his head and that he has been waiting with bated breath to read the pleadings as soon as these are filed. Quite often, the assumption is wrong. The judge may have read the previous pleadings in the case, he may have conducted the trial, and he may have heard the testimonies of the witnesses, but he cannot be expected to remember all these each time he reads a party’s pleading as it reaches his hands. The odds are that he would not because:

a. The attention span of human beings is quite limited. Hence, the judge might be present in the course of the testimony but it is too much to expect him to have listened to everything that had been said. You cannot assume that he barred inner thoughts and other distractions during every proceeding in a case. Consequently, you have to lay to him those facts that are relevant to the issue that he would resolve. b. Hearings in the Philippine system are piecemeal. The judge hears the testimonies of the various witnesses over some period of time, from one to five years in certain cases. Consequently, when some facts make up the issue in the case or its incident, you need to restate those facts to the judge. c. It is possible that the judge had gotten the facts wrong from past pleadings or during the hearing. You may have to correct those impressions by recalling the facts as they were. d. In the case of the justices of an appellate court, you need to apprise them of the facts of the case simply because they did not hear the evidence and they rely on the lawyer’s summaries of them. Even if your own client supplied the facts on which he seeks your opinion regarding an issue arising from them, you still need to restate those facts to him to insure that he and you have a shared understanding of the facts. In this way, you would have no misunderstanding with him. Now, let us go back to the student’s answer in the examination notebook. Since you are not the professor correcting that answer, we will reproduce for you the question asked the student. See if you can appreciate the student’s answer better.

[Question.] The legislature enacted a law fixing the amount of rentals that apartment owners may impose upon their tenants. Gregorio, an apartment owner, assails the law as unconstitutional in that setting the rates of rentals is not a proper and constituent function of government. Besides, the law violated the freedom of contract between apartment owners and their tenants. Is he right? Explain. [Answer.] He is not right. Although the Constitution provides that no law shall be passed impairing the obligations of contract, the Supreme Court has ruled that the police power of the state empowers the legislature to enact laws regulating contracts in the interest of the public welfare. Every contract is presumed to carry with it the reservation that it shall be subject to laws passed subsequent to their perfection. In this case, the law in question is a valid exercise of police power since it seeks to protect the interest of the poor. Therefore, Gregorio is wrong. The law is constitutional. Does it not help to state the background of the legal dispute between the parties and the issue that it presents before you state your opinion or point of view on that issue? It does. Without that background, you can never hope to get your reader to understand your opinion or argument.

Sufficiency of Introduction But how much background facts do you put into your pleading or opinion to introduce the issue or issues that you will address? There is

but one answer: only as much background facts as are needed for an understanding of the issue or issues that the parties present. The rules governing ordinary appeals provide the standard for sufficiency. They recognize the need for two statements to introduce the issue or issues in a case: (a) the statement of the case; and (b) the statement of the facts. This might well be the model for other legal writings like memoranda, comments, position papers, petitions, and even decisions.

The Statement of the Case The purpose of a statement of the case is to provide a clear and concise statement of the nature of the action, a summary of the proceedings so far had, any challenged order or decision issued in the case, and other matters necessary to an understanding of the controversy. You should underline the phrase “necessary to an understanding of the controversy” because many lawyers are fond of making longwinded and elaborate “statement of the case.” Invariably, they also throw in a detailed summary of what the parties allege in the complaint and the answer when this is hardly needed in most cases. Take an appellant’s brief that the losing party filed with the Court of Appeals in an appeal from a Regional Trial Court’s decision. The only issue the case presented was whether or not the defendant maligned the plaintiff by publicly accusing her of stealing her jewelry. See if this simple issue justifies the elaborate details that filled up the appellant’s statement of the case, edited to protect the identities of the persons involved. Statement of the Case Plaintiff-appellee Celia De Leon filed a civil action against defendant-appellant Laura Casal for damages before the Regional Trial Court of Manila where it was

docketed as Civil Case No. 45678. Plaintiff De Leon alleged in her complaint that on March 10 at the Hotel Intercontinental, in the presence of a certain Ms. Rita Young and other persons, defendant Casal maliciously, recklessly, or in bad faith injured her good name and business reputation by accusing her of stealing her jewelry and that in making the accusation, defendant Casal allegedly stated: “Ikaw lang ang lumabas ng kwarto kanina. Nasaan ang dala mong bag? Saan ka pumunta? Ikaw lang ang lumabas ng kuwarto; ikaw ang kumuha.” Plaintiff De Leon further alleged that the above statements were false, untrue, and malicious, made by defendant Casal, knowing at the time she uttered them that they were false and untrue; that she uttered them with actual malice and ill will which caused the dishonor, discredit, and contempt of plaintiff De Leon; that because of the accusation, plaintiff De Leon was bodily searched, her bag and car were also searched, and these were seen and witnessed by her friends, acquaintances, and the general public. Plaintiff De Leon likewise alleged that all the above acts committed against her were instigated and initiated by defendant Casal with actual malice and ill will, causing her dishonor and placing her in public contempt. After summons was served on defendant Casal, she filed an answer with counterclaim. She denied plaintiff De Leon’s charge, claiming that at no time was the latter singled out for confrontation or investigation much less did defendant Casal accuse her or utter the subject

remarks. For filing a malicious suit against her, defendant Casal sought payment of attorney’s fees by plaintiff De Leon. Later, the lower court set the case for pre-trial conference. Both parties filed their respective pretrial briefs in compliance with an order of the lower court that calendared the case for pre-trial conference. The pre-trial conference having been terminated, trial commenced with plaintiff De Leon testifying, followed by corroborating witnesses. During defendant Casal’s turn to present evidence, she had no witness but herself. The lower court rendered a decision dated August 21 holding defendant Casal liable for publicly maligning plaintiff De Leon and ordering the former to pay the latter actual and moral damages. Considering that the decision was contrary to law and the evidence, defendant Casal appealed from it to this Honorable Court. Probably, Casal’s lawyer thought that the bits of information he provided in his above statement of the case would assist the Court of Appeals in understanding and resolving the issue that the parties raised. They would not. Firstly, the issue was simply whether or not Casal maligned De Leon by publicly accusing her of stealing her jewelry. Making reference in the statement of the case to the service of summons, to the holding of a pre-trial conference, and to the number of witnesses presented by either side provides no help to the court in understanding the issue. Secondly, down the road in his brief, Casal’s lawyer would be writing a statement of facts that summarizes the conflicting evidence of the parties regarding the alleged defamatory remarks. This is the place to introduce the factual issue, not in the statement of the case. Besides, where trial has taken place, it would usually serve no useful

purpose to recite in the statement of the case the allegations of the parties in their pleadings. With the evidence adduced at the trial, the court would render its decision, not on the basis of those allegations but on the basis of the evidence so adduced. It should be sufficient for the purpose of identifying the principal issues tendered by the pleadings to simply mention the basic legal disputes that the claims of the parties produced. Rewritten, the statement of the case, purged of non-essentials, might look like this: Statement of the Case Plaintiff-appellee Celia De Leon filed a complaint for damages against defendant-appellant Laura Casal before the Regional Trial Court of Manila in Civil Case 45678 for falsely accusing her of stealing Casal’s jewelry. Casal denied this charge in her answer and asserted a counterclaim for attorney’s fees against De Leon for having filed an unjustified suit. After trial, the lower court rendered a decision, holding defendant Casal liable in actual and moral damages for maligning De Leon. This prompted the latter to appeal the decision to this Court. At times, specific allegations in a pleading constitute evidence of judicial admission and, therefore, may be vital to the case. But these allegations need not be in the statement of the case. It will usually be enough that you cite them in the argument section of your memorandum or paper. Of course, where a judgment on the pleadings or a summary judgment has been sought by one or both parties, a recitation of the allegations of the complaint and answer in the statement of the case will be useful.

In criminal cases, lawyers also often quote the criminal information as part of their statement of the case. Is this needed? It is not. Unless the allegations in the information are in issue, it will be pointless to quote the contents of the information in your statement of the case. It will be sufficient to point out that the accused has been charged with a particular crime like theft or homicide.

The Statement of Facts The statement of the case describes the nature of the action and the proceedings it had gone through. The “statement of facts,” on the other hand, narrates the transaction or event that created the legal dispute and led to the filing of the suit. In an eviction case, the statement of facts may be expected to recite that the landlord and the tenant came to an agreement over the lease, that the tenant violated the agreement, that the landlord made a demand on the tenant to vacate the property, and that the latter refused to do so. The statement of facts may also be expected to narrate the tenant’s defense for declining to leave the landlord’s property. The usual concern here is whether or not your statement of facts should present only your client’s version of the facts of the case. A great majority of lawyers believe that since you are expected to champion your client’s side of the case, you are not required to do your opponent the favor of reciting his version of the facts in your brief. It is up to each side to present a statement of facts based on his client’s version. But you do not do your opponent any favor with a two-sided statement of facts. Actually, you do yourself and the court the favor of better understanding the issue and the arguments you present when you show the conflicting claims of the parties. And this is what will serve your case well. The statement of facts, like the statement of the case, is neither intended as nor is the place for arguments. Its function is to introduce the issue or issues that the case presents.

You may look at the structure of a memorandum, opinion, brief, petition, comment, position paper, decision, or similar legal writing as follows: STATEMENT OF THE CASE STATEMENT OF FACTS PLAINTIFF’S VERSION OF THE FACTS

DEFENDANT’S VERSION OF THE FACTS

THE ISSUE OR ISSUES BODY OF ARGUMENTS RELIEF You can see from the flow of thoughts in the above diagram that, if your purpose were to build up your facts to enable your reader or the court to have a full grasp of the issue or issues that you intend to argue, then it makes no sense to present only one side’s version of the facts. Issues are the product of disagreement. Only by fairly showing the conflicting claims of the parties can the court or your reader truly understand the issues that divide them. Besides, the Rules of Court require parties to include their conflicting claims in their respective statement of facts. Section 13(d) of Rule 44 requires the appellant’s statement of facts to make “a clear

and concise statement in a narrative form of the facts admitted by both parties and of those in controversy.” In the case of the appellee’s brief, Section 14(b) requires the appellee merely to state whether he accepts the statement of facts in the appellant’s brief, which includes the conflicting versions. If he does not, he should merely point out its insufficiencies or inaccuracies without repeating the matters in the appellant’s statement of facts. Since the background facts are meant to give the judge or the reader a fair understanding of the case and the issues that the parties present, you should fairly state your opponent’s version of those facts. You should not report that version with a slant in your favor, whether obvious or subtle, believing that you will gain some advantage in this way. The background facts are not the place for argument or for opinionated narrative. The reader will eventually see your unfair tactics and your distortions may boomerang on you. The next question is how much details must go into your statement of the facts? The test of sufficiency of the statement of facts of your pleading is its ability to enable the judge or the reader to understand, with minimum words, the issue or issues that you want him to resolve and the arguments that you adduce on those issues. Many students and lawyers feel insecure about an austere statement of facts. They strongly feel that, unless the statement of facts includes all the details that the evidence yields, whether or not these are remotely relevant to the issue or issues presented, their facts would be incomplete. A good number of them also feel that, unless evidence favorable to their case is included in their statement of facts, they could not use it in their arguments. They forget that the purpose of the statement of facts is merely to provide a background of the transaction or event involved to enable the court or the reader to see the issues in their proper context. Remember the defamation case discussed above? The appellant’s brief (also edited) has been reproduced below. Its statement of the case

and statement of facts are quite lean but observe how the argument section pours out all the needed evidentiary details, including quotations from critical portions of the transcripts of testimonies. Observe, too, how the recital of the two versions of the facts of the case does not result in the giving of advantage to the opposite side. [CAPTION OMITTED] Defendant-appellant Laura Casal, by counsel, respectfully states: Statement of the Case Plaintiff-appellee Celia De Leon filed a complaint for damages against defendant-appellant Laura Casal before the Regional Trial Court of Manila in Civil Case 45678 for falsely accusing her of stealing Casal’s jewelry. Casal denied this charge in her answer and asserted a counterclaim for attorney’s fees against De Leon for having filed an unjustified suit. After trial, the lower court rendered a decision, holding Casal liable in actual and moral damages for maligning De Leon. This prompted the latter to appeal the decision to this Court. Statement of Facts Plaintiff De Leon testified that at 4:30 p.m. on March 10 she dropped in, as wedding coordinator, at a room at the Hotel Intercontinental in Makati to see the bride who was then preparing for her wedding at a nearby church.1 De Leon left after a few minutes to attend to the venue of the reception.2 At about 5 p.m., she returned to the bride’s room where defendant Casal, the

bride’s cousin, confronted her, claiming that she must have taken her jewelry because she alone came in and out of the room.3 Casal’s jewelry was missing.4 The hotel called the police to investigate the matter. They searched De Leon and took her fingerprints.5 Casal testified, on the other hand, that she brought with her to the bride’s room a paper bag containing the things that she would wear and a set of jewelry valued at about P1 million.6 She waited for her turn to be madeup and, meantime, placed her paper bag on a table.7 The others in the room were the bride’s parents, other relatives, the couturier, and the make-up artists.8 De Leon came in but left after some minutes.9 After she had been made-up, Casal went to the bathroom to put on her gown. When she later searched the paper bag for her jewelry, it was gone.10 The police searched the room but did not find it. They investigated those who had access to the room, including De Leon.11 Casal denied confronting the latter and implying that she took the jewelry.12 Later after the wedding, the police came and took the fingerprints of all the people who had access to the bride’s room at the time of the loss.13 Statement of the Issue The only issue in this case is whether or not Casal maligned De Leon by publicly accusing her of stealing her jewelry.

Arguments I. CASAL DID NOT PUBLICLY ACCUSE DE LEON OF STEALING HER JEWELRY The trial court gave credence to De Leon’s testimony that Casal singled her out as the jewelry thief, telling her in the presence of others, “Ikaw lang ang lumabas ng kwarto, nasaan ang dala mong bag? Saan ka pumunta? Ikaw lang ang lumabas ng kuwarto, ikaw ang kumuha.” The trial court concluded from this that Casal indeed publicly humiliated her without justification. But the trial court ignored the other significant portions of De Leon’s testimony. She said in contradiction to the above that she learned she had been suspected because a certain Noel later told her that the group of Casal had their eyes on her. Thus, Q: What did Mr. Sanchez, the bridegroom’s father, tell you? A: He said, “What happened at the hotel? It is a shame that someone from the bride’s side lost her jewelry.” Q: Then what did you answer? A: I told him that what happened to me is more shameful because I was merely going about my work and I had been suspected. He then told me, “Suspected, who told you that you had been suspected?” I pointed to Noel and I said, “He told me that I had been suspected.” And then Mr. Sanchez faced Noel, “Young man, from

whom did you learn that Celia had been suspected as the jewelry thief?” And Noel said, “From Mrs. Casal’s group, sir.” 14 The above is a revelation. For, if it were true that Casal had publicly accused her of taking the jewelry when she went into the bride’s room, what was the point in her claiming after that public confrontation that it was from Noel that she learned she had been suspected? This is absurd. Clearly, De Leon’s initial statement had been a lie. Basic is the rule that, to be believed, a testimony should be in accord with the common order of things.15 Besides, Mrs. Villanueva, De Leon’s own witness did not confirm what De Leon said. Mrs. Villanueva testified that what Casal said was, “Siya lang yung nakita kong galing sa C.R.”16 However interpreted, this statement did not at all suggest that Casal had publicly and maliciously accused De Leon of stealing the jewelry. Further, De Leon admitted in the course of her testimony that she learned of Casal’s loss of her jewelry only on the following day, March 11. Indeed, as she testified, she could not believe what Mr. Mariano told her concerning such loss. Thus: Q: After that what happened next? A: Mr. Mariano said, “The reason, young lady, is that Mrs. Casal had lost her jewelry worth P1 million.” Q: And then what happened? A: And then I said, “She lost it? She should have been careful considering how expensive the jewelry was.” Our

conversation ended there.17 xxx

xxx

xxx

Q: While you were still in the room the people there were excitedly talking about what happened, is that right? A: Yes. But I did not know what was missing at that time. Q: But later you were informed that what was missing was the jewelry in the paper bag? A: No. I was informed the following day. Q: And who informed you the following day that what got lost was the jewelry of Mrs. Casal? A: Mr. Mariano. He was the father of the bride.18 If De Leon learned of the fact of loss of the jewelry only on the following day, March 11, what was her basis in claiming that in the afternoon of October 10 when she stepped into the bride’s room at the hotel a second time, Casal publicly accused her of taking her jewelry? Her claim makes no sense. II. ASSUMING CASAL SAID THE WORDS IMPUTED TO HER, IT IS NOT SHOWN THAT SHE DID SO MALICIOUSLY AND IN BAD FAITH. The trial court ruled that by the words she used, “Ikaw lang ang lumabas ng kwarto, nasaan ang dala

mong bag? Saan ka pumunta? Ikaw lang ang lumabas ng kuwarto, ikaw ang kumuha,” Casal implied by this that only De Leon could have taken the jewelry. She made this accusation with malice and bad faith since she did so without any solid proof. But, assuming that Casal indeed uttered those words, the circumstances show that she did not do so maliciously or in bad faith. Malice is defined as the intentional doing of a wrongful act without just cause or excuse, with intent to inflict an injury or under circumstances that the law will imply an evil intent.19 In libel and slander, malice involves an evil intent or motive arising from spite or ill will or personal hatred.20 In the law of malicious prosecution, it is the intentional doing of a wrongful act without legal justification, and may be inferred from the absence of probable cause.21 It cannot be said that an accusation expressed during a startling event, when the person who made it was in a state of shock or disbelief at her loss, made it with deliberate malice. Things happened spontaneously. Casal could not have had the opportunity to reflect and deliberate on her action upon discovering her loss. She uttered what first came into her mind, a natural thing under the circumstances. Besides, her suspicion of De Leon was not altogether baseless. Admittedly, the latter went in and out of the room hurriedly.22 She said so herself.23 Clearly, Casal was not motivated by any ill will or personal hatred when she supposedly uttered her suspicion. And when she supposedly sought an investigation of the incident focusing on De Leon, she merely exercised her right. Qui

jure suo utitur nulum damnum facit. One who exercises his rights does no injury. Even if damage results from a person’s exercising his legal rights, it is damnum absque injuria. In fact, however, the investigation did not single out De Leon. All the people in the room at that time were interviewed, their bags were searched, and their fingerprints taken. The relatives of Casal were not spared from the interrogation, the body and bag search, and the fingerprinting.24 Closing Statement It does frequently happen that some valuable things are suddenly discovered stolen in a big household, in a classroom, or in an office full of personnel. Since it is likely that only one was a thief, would it be best that the loss be endured and overlooked for the sake of protecting the sensibilities of the greater number who are presumably innocent? Surely not, since it is finding out the truth by investigating and searching everyone who had the opportunity of committing the offense that will remove the cloud of suspicion from him. Feelings might get hurt but the truth will set every one free. Relief WHEREFORE, defendant-appellant Laura Casal respectfully prays the Court to set aside the decision of the trial court dated August 17 and dismiss the

complaint against her. The next question is: in preparing your statement of facts, must you source your facts from both the direct and cross-examination of the witnesses from either side? Where the parties have conflicting versions, it would seem best when you prepare the background or introductory facts to extract your facts solely from the direct testimonies of the witnesses from either side. The direct testimonies of witnesses, as a rule, embody the versions that the parties espouse. When the cross-examinations have done some damage to the testimony of your opponent’s witnesses, use these in the argument portion where they would have greater impact and telling effect.

Short Introductions The need to introduce the issue with some background facts or antecedent circumstances (the equivalent of the statement of facts) is not limited to a memorandum that a party submits after trial. They work, too, for incidental issues brought up in the course of the proceedings. Take for example this motion to quash a criminal information filed in an estafa case. The motion can only be understood if the argument is preceded by a recital of the information that the party seeks to quash. Observe how the issue then flows into the argument. [CAPTION OMITTED] MOTION TO QUASH Accused Sergio M. Lazaro, by counsel, respectfully states: The Charge The prosecution has accused Sergio M. Lazaro of estafa by misappropriation or conversion under Article 315, paragraph 1(B), of the Revised Penal Code. The

information reads: That on or about August 15 in Makati City and within the jurisdiction of this Honorable Court, the said accused, while acting for and in behalf of Lovely Garments Corporation, obtained from Asiatic Bank a loan in the amount of ONE HUNDRED THOUSAND US Dollar ($100,000.00) using as collateral a deed of assignment dated July 27 executed in favor of Asiatic Bank conveying all its rights, title and interests in confirmed purchase order No. 1234 of its foreign buyer, Macy’s Inc. of the United States; that far from complying with the undertaking in the deed of assignment, said accused, did then and there, willfully and feloniously defraud Asiatic Bank, by allowing the payment of the purchase order covered by the deed of assignment to another entity; that upon the maturity of the loan from Asiatic Bank, the accused failed to pay said loan; that despite repeated demands from Asiatic Bank, said accused failed and refused to pay the loan of $100,000.00 to the damage and prejudice of said bank in the aforesaid amount. Issue Presented The only issue accused Lazaro presents in this motion to quash is whether or not the facts charged in the information constitute the offense of estafa by misappropriation or conversion.

Elements of Estafa by Misappropriation or Conversion The elements of estafa by misappropriation or conversion, of which accused Lazaro has been charged, are as follows: One. That money or goods be received by the accused in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; Two. That there be misappropriation or conversion or denial on the part of the accused of such receipt; Three. That such misappropriation or conversion of such money or property by the accused is to the prejudice of another; and Four. That there is a demand made by the offended party on the accused. Argument For estafa by misappropriation or conversion to apply to the transaction subject of this criminal action, it is essential that accused Lazaro, acting for Lovely Garments, receive the money in trust for or as an agent of the bank. The classic example of this kind of estafa involves the trust receipt. In such a transaction, the offender receives goods in trust for the bank but he is unable to account for the goods or the proceeds of their sale. Consequently, he is liable for estafa by

misappropriation or conversion. (People v. Cuevo, 104 SCRA 312). In People v. Cuevo (supra), the information clearly alleged that the accused received the merchandise “in trust” for the bank “under an express obligation … to account for the said merchandise, or to deliver and turn over to the [bank] the proceeds of the sale [of such merchandise].” Since the accused in that case failed to account for the merchandise or turn over the proceeds of its sale, the prosecution charged him with estafa. In contrast, the information in the present case, broken down to its essentials, alleges that: 1. Lovely Garments (represented by accused Lazaro) obtained a loan of US$100,000.00 from the Bank; 2. In getting the loan, Lovely Garments used as collateral a deed of assignment in favor of the bank in which Lovely Garments conveyed all its rights, title and interests in a purchase order of a foreign buyer, Macy’s Inc. of the United States; 3. Far from complying with the deed of assignment, however, accused Lazaro defrauded the Bank by allowing the payment of the purchase order to another entity; 4. When the loan matured, accused Lazaro failed to pay it; and 5. Despite demands from the Bank, he failed to pay the loan.

Quite clearly, the present criminal action is based on the failure of a borrower to pay a bank loan. But failure to pay a loan is not a criminal act. When the borrower spends the money for his benefit, he could not be said to have misappropriated or converted the money to the prejudice of the bank. In a loan, it is understood that the borrower spends the money for his purpose. He does not act as agent of the bank with respect to the money he borrowed for his use. Indeed, the information does not say that the accused was to hold the loan money in trust for the bank or for a purpose that places him under an obligation to account for where the money went. Article 315, No. 1(b) does not apply when the contract between the accused and the complainant has the effect of transferring to the accused the ownership of the thing received. (Luis B. Reyes, The Revised Penal Code, 1971 Edition, p. 628.) When the bank gave Lovely Garments a loan, it transferred ownership of that money to Lovely Garments. Indeed, it has been held that when the contract is a loan of money, the accused debtor cannot be held liable for estafa for merely refusing to pay, or denying having contracted, the debt. (U.S. v. Ibañez, 19 Phil. 559.) Loan money is known as mutuum. It is a loan for consumption and the ownership of the thing loaned passes to the borrower. Wherefore, the accused Sergio M. Lazaro respectfully prays the Court to issue an order quashing the information and dismissing the case. In a different light, an opposition to a motion for postponement would probably exemplify a pleading that needs the least introduction.

Still, the lawyer opposing the postponement must, as a minimum requirement for understanding the issue that his opposition tenders, state the background facts. Thus— [CAPTION OMITTED] OPPOSITION TO MOTION TO RESET HEARING Plaintiff Benjamin S. Amurao, by counsel, respectfully states: 1. [The introduction:] On June 11 defendant filed a motion to reset the hearing set on June 24 at 8:30 a.m. on the ground that his counsel has to attend another hearing on the same date and time in a criminal case before the Regional Trial Court of Calamba, Laguna. 2. [The statement of the issue:] But plaintiff must oppose the motion. 3. [The argument:] It will be recalled that the hearing on June 24 was set by agreement of the parties, with both counsel consulting their calendars of hearings. The motion to reset means that defendant’s counsel gave low priority to this case, hence, he would willingly sacrifice it for his other case. This is unjustified. WHEREFORE, plaintiff respectfully prays the Court to deny defendant’s motion to reset the hearing of this case set on June 24. Very often, when a party appeals a decision of the Court of Appeals to the Supreme Court by filing a petition for review of the decision, the latter court would require the other party, called the respondent, to comment on the petition. Since the petition has already presented the relevant facts of the case and introduced the issues that have to be resolved, will it be necessary for the respondent to restate the facts and

the issue in his comment? You should look at it this way. When you file your comment months and several other intervening businesses later, the court will have lost focus of your case. Consequently, it is essential for the respondent, whom you represent, to give a brief background of the facts and the issue in his comment to enable the court to recall what the case is about and appreciate the comment. And when the petitioner files a reply to the respondent’s comment, the reply should itself recall the antecedents of the case in order to put his reply arguments in the proper context. But the introduction in the reply should not repeat the elaborate introduction made in the petition. It should be lean and terse, confined to the highlights of past pleadings, a reminder only, not a full repetition of what had been previously said.

Writing Exercises If you did pre-work on the facts, the law, the issues, and the outline of your arguments in the case of the girl attacked by a neighbor’s dog, you would be ready to leave pre-work and move to writing up the legal opinion that the girl’s father requested from you. Begin by drafting the background facts of the case that will introduce the issue or issues that it presents.

1TSN, May 22, pp. 19-20. 2Id., p. 22. 3Id., p. 24. 4Id., p. 27. 5Id., p. 29. 6TSN, May 27, p. 9. 7Id., p. 10.

8Id., p. 12. 9Id., p. 14. 10Id., p. 17. 11Id., p. 18. 12Id., p. 21. 13Id., p. 24. 14TSN, May 22, 2003, pp. 19-20. 15People v. Baquiran, L-20153, June 29, 1967; People v. Acusar, 82 Phil. 490; People v. Maron, G.R. 56858, December 27, 1982. 16TSN, June 15, pp. 8-10. 17TSN, May 22, pp. 35-36. 18TSN, June 5, pp. 26-27. 19Black’s Law Dictionary, 6th Ed., 1990. 20Becker v. Brinkop, 230 Mo. App. 871, 78 S.W. 2d 538, 541. 21Palermo v. Cottom, Mo. App., 525 S.W. 2d 758. 22TSN, May 27, p. 9. 23TSN, May 27, pp. 11-12. 24TSN, June 4, pp. 19-21.

9. Writing the Argument After writing the introduction to the issue or issues in the case, you step into the second part of the write-up stage: putting flesh and color to your arguments and making your closing statement.

Jump Off Points As a rule, you need to be launched into your argument by some topic or opening statement. Most experienced writers jump off with a topic statement that signals or defines the direction of their argument. This is usually done in two ways: 1. You can launch your argument by briefly stating your opponent’s claim with the intention of defining the area that your argument will attempt to assail. For example: [Your statement of the opposing claim:] In support of their first assignment of error, petitioners contend that since its inception in the 1970s, the club in practice has not been a corporation. They add that it was only the respondent spouses, motivated by their own personal agenda to make money from the club, who surreptitiously caused its registration with the SEC. They then assert that, at any rate, the club has already ceased to be a corporate body. Therefore, no intra-

corporate relations can arise as between the respondent spouses and the club or any of its members. Stretching their argument further, petitioners insist that since the club, by their reckoning is not a corporation, the SEC does not have the power or authority to inquire into the validity of the expulsion of the respondent spouses. Consequently, it is not the correct forum to review the challenged act. In conclusion, petitioners put respondent spouses to task for their failure to implead the club as a necessary or indispensable party to the case.

[Your argument:] These arguments cannot pass judicial muster. Petitioners’ attempt to impress upon this court that the club has never been a corporation is devoid of merit. It must fail in the face of the Commission’s explicit finding that the club was duly registered and a certificate of incorporation was issued in its favor x x x. It ought to be remembered that the question of whether the club was indeed registered and issued a certification or not is one which necessitates a factual inquiry. On this score, the finding of the Commission, as the administrative agency tasked with among others the function of registering and administering corporations, is given great weight and accorded with high respect. We therefore have no reason to disturb this factual finding relating to the club’s registration and incorporation.

[Another argument:] Moreover, by their own admission contained in the various pleadings, which they have filed

in different stages of this case, petitioners themselves have considered the club as a corporation. This admission, under the rules of evidence, binds them and may be taken or used against them. Since the admission was made in the course of the proceedings in the same case, it does not require proof, and actually may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. x x x (Vesagas v. Court of Appeals, 371 SCRA 508, 513-514; penned by Justice Reynato S. Puno.) Note that, in the above, the jump off statement is followed by two arguments that strike at the merit of the opposing position. 2. You can also begin your argument by stating your thesis or proposition, your intention being to support it with the argument that follows. For example: [Statement of your thesis:] The trial court correctly disbelieved his alibi. [Your argument:] Alibi and denial, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence that deserve no weight in law. They cannot be given greater evidentiary value over a credible witness’ testimony on affirmative matters. Except for Lina Linatoc’s corroboration, the only evidence supporting the alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife; thus her testimony is necessarily suspect and cannot prevail over the offended party’s positive identification of the accused as her rapist. (People v. Viernes, 372 SCRA 231, 249-250; penned by Justice Artemio V. Panganiban.)

Go over any legal writing and almost always you will discover the use of the same pattern: a topic sentence (the opposing claim or the writer’s thesis) followed by the argument.

Three Statements of an Argument We said that every sound legal argument is the right rule and the right fact, put together. A legal argument is made up of three statements: (1) the statement of a rule that applies to a given fact or set of facts (the rule statement); (2) the statement of the fact of a particular case that opens up such case or closes it to the application of the rule (the case fact statement); and (3) the conclusion that the rule applies or does not apply to the particular case (the conclusion statement). Your balance sheet or short form argument may just say, “For a woman, it was not likely for Julia to walk home alone in the middle of the night.” Actually, what you are saying is that [the rule:] “Filipino women do not walk home alone so late in the night. Still, [the case fact:] Julia said that she did. Therefore, [the conclusion:] she must have lied.” Written up into a full argument, it might read like this: [The rule:] Filipino practice and tradition in the rural areas tend to protect women, especially young girls, when they go out late in the evening. When the girl attends a night party, the host usually arranges for a relative or a friend to walk her home. [The case fact:] In this case, Julia, a young girl raised in the rural areas, testified that she walked home alone after the wedding party although it was already late at night and she had to walk across rice fields to get home. [The conclusion:] It may be inferred from this that she had not told the truth. Indeed, it seemed more probable that her sweetheart,

Ronald, escorted her home. Your balance sheet argument may just say, “Mario did not hear Julia’s outcry.” Actually, what you are saying is that [the rule:] “Women forced to submit to sex against their will would naturally make loud outcries for help. [The case fact:] Mario did not hear Julia make an outcry. Therefore, [the conclusion:] Ronald did not rape her.” Written up into a full argument, the above might read like this: [The rule:] A woman forced to submit to a man’s sexual attack will no doubt make a loud outcry. [The case fact:] In this case, although the rape allegedly took place just 50 meters away from Mario’s house, a distance that would have enable the latter to hear Julia’s shriek for help when it happened, Mario testified that he did not hear such an outcry. [The conclusion:] Inevitably, the conclusion is that Julia made no outcry, she having assented to Ronald’s moves.

Persuasive Arguments Why is awareness of the three essential statements of your legal argument (the rule, the case fact, and the conclusion) important when you write up that argument? It is important because the effectiveness of your argument depends on how ably you write up each statement of your argument into a convincing part. This is all what an argument is about, convincing another to buy your point of view. Knowing the essentials enables you to dismantle your argument, reinforce or improve the weak parts, emphasize the strong, and put them together again to produce a persuasive argument.

Convincing Rule Statement If your rule is that women will ordinarily not admit having been raped unless true and if your case fact is that Julia admitted having been raped by Ronald, then your conclusion will be that Julia’s admission is probably true. Will the following be a sufficient write-up of your argument? Since women will ordinarily not admit having been raped unless true and since Julia admitted to having been raped by Ronald, it follows that her admission of that rape is probably true. But the above argument is too bare to ensure its full acceptance by the reader. Full acceptance comes from being convinced, first, that the rule you propose is correct and, second, that the key fact to which the rule applies is similar to (or different from) the case fact (the fact of the particular case). An insurance salesman cannot hope to succeed in selling insurance by simply telling his client the basic statement: “Insurance is good for family men. Since you are a family man, insurance is good for you.” His client can accept the fact that he is a family man, but he needs convincing that, as a rule, insurance is good for family men. It is the same with the above argument in the rape case. Your reader can accept the case fact that Julia admitted to having been raped by Ronald since this fact is not denied. But your reader needs to be convinced that women as a rule will not admit to being raped unless true. You need to write more about it to convince your reader as to its correctness. Rewritten to reinforce your rule statement, the argument might go like this:

[The rule statement:] It takes lots of courage for any woman to cry out and testify that she has been raped. When she steps forward to confess what happened to her, she exposes herself to the humiliation of acknowledging that a man has ravished her body and violated her virginity. The police investigation will surely make a spectacle of her. And rowdy police investigators are not known for prudence and gentleness. She also has to bare her body to the prying hands of a medical examiner who is a stranger to her. And, as soon as her neighbors learn of it, she permanently loses her good reputation. Suitors will avoid her like a leper. For these reasons, women are not likely to admit to being raped unless true. [The case fact statement:] Since Julia acknowledged having been raped by Ronald, [The conclusion:] her testimony may be assumed to be true. The writer of the above is not satisfied with the bare rule statement “that women will ordinarily not admit to being raped unless true.” He shows how true and valid the statement is, given the great troubles to which the rape victim places herself when she dares come out to complain. The writer’s vivid description of her travails enables the reader to go through the experience and sympathize with the rape victim. This is what it means when we said earlier that the effectiveness of your argument depends on how ably you write up each statement of your argument into a convincing point. In a case decided by the Supreme Court,1 Caltex shipped a quantity of fuel oil on board a vessel owned by Delsan Transport from Batangas to Zamboanga City. Caltex insured its cargo with Home Assurance. Unfortunately, the vessel sank near Panay Gulf by an inclement weather, taking with it the entire cargo of oil. After Home Assurance paid Caltex for its loss, it filed a suit against Delsan Transport to

recover what it paid. But Delsan Transport argued that, under the Insurance Code, Caltex, as shipper of the goods, should be deemed to warrant that the vessel was seaworthy. Delsan Transport argued that, since Home Assurance paid Caltex its loss, the implication is that it accepted the latter’s lack of fault and the vessel’s seaworthiness. And being seaworthy, the vessel’s sinking could only be imputed to force majeure, relieving Delsan Transport of any liability. Given the above case fact statement, the focus now shifts to the rule statement that applies to such fact. It is here—in the rule section—that the Court focused its argument in favor of Home Assurance. Thus: The payment made by [Home Assurance] for the insured value of the lost cargo operates as waiver of its right to enforce the term of the implied warranty against Caltex under the marine insurance policy. [By this statement the Court concedes for argument’s sake the “case fact” that the payment resulted in a waiver of Caltex’s warranty.] However, the same cannot be validly interpreted as automatic admission of the vessel’s seaworthiness by [Home Assurance] as to foreclose recourse against [Delsan Transport] for any liability under its contractual obligation as a common carrier. [Here the court sets down its thesis or proposition.] The fact of payment grants Home Assurance subrogatory right which enables it to exercise legal remedies that would otherwise be available to Caltex as owner of the lost cargo against [Delsan Transport].2 [Now it states its conclusion.] Article 2207 of the New Civil Code x x x.

[What follows is a reinforcement of the rule statement in the Court’s argument:] The right of subrogation has its roots in equity. It is designed to promote and to accomplish justice and is the mode which equity adopts to compel the ultimate payment of a debt by one who in justice and good conscience ought to pay.3 It is not dependent upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment by the insurance company of the insurance claim. [Then the Court restates its conclusion from another point of view:] Consequently, the payment made by [Home Assurance] to Caltex (assured) operates as an equitable assignment to the former of all the remedies which the latter may have against [Delsan Transport]. You will note from the Court’s discussion of its chosen rule statement, that it had recourse to statute and case laws to reinforce the validity of that view. This is the task of legal research. You need to fathom the depths of jurisprudence for the right rulings and precedents that apply to the facts of the particular case. You will note from the Court’s discussion of its chosen rule statement, that it had recourse to statute and case laws to reinforce the validity of that view. This is the task of legal research. You need to fathom the depths of jurisprudence for the right rulings and precedents that apply to the facts of the particular case.

Convincing Fact Statement At times, the parties to the dispute could agree that a specific rule governs a case but they are unable to agree whether the key fact to which it applies is similar to or different from the fact of the case. In

this situation, it is the statement of the case fact that needs building up. In the rape case against Ronald, he could concede the “rule” that a woman’s testimony, standing alone, can support a conviction for rape provided it is conclusive, logical, and probable. But he could choose to show that Julia’s testimony is the opposite, i.e., inconclusive, illogical, and improbable. [The rule:] Although a woman’s testimony, standing alone, can support a conviction for rape, such testimony must be conclusive, logical, and probable. [The case fact:] But, firstly, the medico-legal officer who examined Julia’s whole body did not find any bruise either on her back or on her arms. Yet, she testified that she struggled to get free from Ronald on rough ground, a situation that would surely have produced those bruises. What happened, then, is that Ronald made love to her gently, consistent with his claim that she consented to the sexual act. [Another case fact:] Secondly, Julia’s testimony that she walked home alone after the wedding party is improbable especially since it was nighttime and she had to walk across rice fields. A Filipina woman would naturally ask the host or a friend to walk with her home. Indeed, this was what probably happened. Her sweetheart, Ronald, escorted her. [Still another case fact:] Thirdly, the rape allegedly took place just 50 meters away from Mario’s house. At that distance, surely, Mario who was still awake would have heard Julia shriek for help when it happened. A woman forced to submit to a man’s sexual attack would no doubt make a loud outcry. The fact that no one heard

Julia’s outcry shows that she assented to Ronald’s moves. [The conclusion:] For the above reasons, Julia’s testimony cannot support a judgment for conviction. You will note from the above that each of the three case facts raised to reinforce Ronald’s case fact statement is in itself an argument that embodies a rule, a case fact, and a conclusion. What does this tell you? This tells you that several arguments could be clustered to bring home just one major point. This also tells you that the variety by which arguments can be structured, combined, and set apart are limitless. Although all sound arguments use the same building blocks (rule, case fact, and conclusion), they cannot be channeled into a simple formula. In a case, the Supreme Court found no disagreement among the parties regarding the rule that defines the jurisdiction of the Department of Agrarian Reform Adjudication Board (DARAB). All agreed that the DARAB had exclusive jurisdiction over disputes concerning tenancy relationship. But the Court readily acknowledged that the parties disagreed on the facts of the case. Consequently, in ruling in favor of the respondent tenants, the High Court reinforced the case fact statement in its argument. Thus: [The rule:] In Estates Development Corporation v. CA, the essential elements of a tenancy relationship were listed in this wise: “For DARAB to have jurisdiction over a case, there must exist a tenancy relationship between the parties. In order for a tenancy agreement to take hold over a dispute, it would be essential to establish all its indispensable elements, to wit: 1) the parties are the landowner and the tenant or agricultural lessee; 2) subject matter of the relationship is an agricultural land;

3) there is consent between the parties to the relationship; 4) that the purpose of the relationship is to bring about agricultural production; 5) that there is personal cultivation on the part of the tenant or agricultural lessee; and 6) the harvest is shared between the landowner and the tenant or agricultural lessee.” [Statement of the opposing claim:] Petitioner claims that private respondent were not her tenants, and that they raised the defense of tenancy in the criminal case merely to escape prosecution for qualified theft. On the other hand, private respondents assert that they were petitioner’s tenants, as shown by the evidence adduced by the parties before the RTC. [The conclusion:] After a careful review of the records of this case, we hold that an agrarian dispute existed between the parties. [The case fact:] First, the subject of the dispute between them was the taking of the coconuts from the property owned by petitioner. Second, private respondents were the overseers of the property at the time of the taking of the coconuts, as can be gleaned from the Kasabutan (or Agreement) executed between them on November 25, 1991 x x x. Third, petitioner allowed private respondents to plant coconut, coffee, jackfruit and cacao as shown by the said Agreement x x x. Finally, a tenurial arrangement exists among herein parties as regards the harvesting of the agricultural products, as shown by the several remittances made by private respondents to petitioner. These are substantiated by receipts. (Monsanto v. Zerna, 371 SCRA 664, 675-676; penned by Justice Artemio V. Panganiban.) One effective technique in presenting multiple points in favor of

your view is to put them in a numbered series as in the above. By numbering the facts that persuaded the Court in concluding that the DARAB had jurisdiction over the case, it lent the strength of number to its argument.

Correct Conclusion Statement The examples above of uses of the combinations of rule and case fact statements also show how the third statement, the conclusion statement, must logically flow from its two (2) premises. When stating your conclusion, you simply draw an inference that the fact of a particular case opens it up or closes it to the application of the rule that governs such case. The idea behind being able to recognize and understand each of the three statements that make up your argument is that such recognition and understanding will enable you to reinforce that statement in your argument that seems most vulnerable. Conversely, it enables you to destroy your opponent’s thesis or proposition by attacking the essential statement of his argument, his rule, his case fact, or his conclusion that seems weakest.

Positioning Variation Conventionally, arguments are started off with a statement of the applicable rule, followed by a statement of the case fact, and ended by a conclusion that the rule applies or does not apply to the case fact. This conventional sequence has been observed in the sample argument below. It states the rule that, in cases involving contracts, exemplary damages may be awarded when the defendant acts in a wanton, fraudulent, reckless, oppressive, or malevolent manner. And, after ascertaining the case fact that defendant has not acted in that manner, the Court makes the conclusion that plaintiff is not entitled to exemplary damages. Thus:

[The rule:] The law on exemplary damages is found in Section 5, Chapter 3, Title XVIII, Book IV of the Civil Code. These are imposed by way of example or correction for the public good, in addition to moral, temperate, liquidated, or compensatory damages. They are recoverable in criminal cases as part of the civil liability when the crime was committed with one or more aggravating circumstances; in quasi-delict, if the defendant acted with gross negligence; and in contracts and quasi-contracts, if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. [The case fact:] BPI Investments did not act in a wanton, fraudulent, reckless, oppressive, or malevolent manner, when it asked for preliminary attachment. It was just exercising a legal option. The sheriff of the issuing court did the execution and the attachment. [The conclusion:] Hence, BPI Investments is not to be blamed for the excessive and wrongful attachment. (BPI Investment Corp. v. D.G. Carreon Commercial Corp., 371 SCRA 58, 70; penned by Justice Bernardo P. Pardo.) In writing up an argument, must you always follow the conventional sequence of rule, fact, and conclusion? The answer is no. Actually, your argument will make sense so long as you are able to string along those three essential statements whatever may be their order or positions. In a case, although the Supreme Court acknowledged the rule that the drawer of a dishonored check who informed its payee that he did not have sufficient funds in the bank cannot be considered to have violated Batas Pambansa 21, it made a case fact finding that the accused in that case did not give that information to the complainant. The Court thus drew up the conclusion that the rule could not apply to

the accused. But the Court in this case chose to follow a different sequence. It began with the conclusion, followed it up with the rule, and then the case fact. [The conclusion:] The case of Magno v. Court of Appeals relied upon by accused-petitioner, does not find application to the present case. [The rule:] In Magno, we held that there was no violation of the bouncing checks law because there was evidence that complainant was told by the drawer that he did not have sufficient funds in the bank. The drawer, from the very beginning, never hid the fact that he did not have funds with which to put up the warranty deposit, and openly intimated the same to complainant. Although the ruling in Magno was reiterated in the case of Idos v. Court of Appeals, again, we note that in Idos, petitioner repeatedly notified the complainant of the insufficiency of funds. In both cases, the complainant was duly notified by the drawer of the insufficiency of funds. It also serves to emphasize that in Idos, petitioner’s acquittal was not based on complainant’s knowledge that petitioner did not have sufficient funds in the bank. x x x [The case fact:] In the case under consideration, accused-petitioner failed to adduce any evidence to substantiate her claim that private respondent knew that she (accused-appellant) had difficulty maintaining sufficient funds in or credit with the bank. On the other hand, private respondent during cross-examination categorically denied having been advised by accusedpetitioner not to deposit the checks: x x x (Lagman v. People, 371 SCRA 686, 696-697; penned by Justice Santiago M. Kapunan.)

In an argument in another case, the Supreme Court also followed a different internal sequence. It began with the case fact, followed it up with the rule, and then the conclusion. The petitioners in the case filed a petition for review with the Court of Appeals but the latter court dismissed the case for failure of the petitioners to enclose a certified true copy of the adverse decision and resolutions of the trial court. On appeal, the Supreme Court reversed the ruling of the Court of Appeals. See the three elements in the High Court’s argument. [The case fact:] The copies of the decision and resolution of the Regional Trial Court attached to the petition for review filed by petitioners in the Court of Appeals are duplicate originals. However, the Court of Appeals dismissed the petition for review of petitioners on the ground that copies of the decision and resolution of the Regional Trial Court must be certified true copies. [The rule:] The Court of Appeals based its action on Rule 42, Section 12 of the 1997 Rules of Civil Procedure, but this rule provides that petition for review of decisions and resolutions of Regional Trial Courts must “be accompanied by clearly legible duplicate originals or true copies of judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court. [The conclusion:] It suffices, therefore, that a copy of a decision or resolution attached to a petition for review is a duplicate original. (Lee v. Court of Appeals, 345 SCRA 707, 714-715; penned by Justice Vicente V. Mendoza.)

Building Blocks of Arguments As you may have noted, every sound legal argument takes shape, using as building blocks the three essential statements: the rule, the case fact, and the conclusion. Observe how the following decision of the Supreme Court in KLM Royal Dutch Airlines v. Court of Appeals (65 SCRA 237), penned by Chief Justice Fred Ruiz Castro who advocated and practiced simplicity and clarity in writing, put together the arguments, using those same building blocks. The case concerns two Filipino passengers who were offloaded from an airplane to give their seats to two white passengers. DECISION In this appeal by way of certiorari the Koninklijke Luchtvaart Maatschappij N.V., otherwise known as the KLM Royal Dutch Airlines (hereinafter referred to as the KLM) assails the award of damages made by the Court of Appeals in CA-G.R. 40620 in favor of the spouses Rufino T. Mendoza and Consuelo T. Mendoza (hereinafter referred to as the respondents). Sometime in March 1965, the respondents approached Tirso Reyes, manager of a branch of the Philippine Travel Bureau, a travel agency, for consultations about a world tour, which they were intending to make with their daughter and a niece. Reyes submitted to them, after preliminary discussions, a tentative itinerary, which prescribed a trip of thirty-five legs; the respondents would fly on different airlines. Three segments of the trip, the longest, would be via KLM. The respondents expressed a desire to visit Lourdes, France, and discussed with Reyes two alternate routes, namely, Paris

to Lourdes and Barcelona to Lourdes. The respondents decided on the Barcelona-Lourdes route with knowledge that only one airline, Aer Lingus, serviced it. The Philippine Travel Bureau to which Reyes was accredited was an agent for international air carriers, which are members of the International Air Transport Association, popularly known as the “IATA,” of which both the KLM and the Aer Lingus are members. After about two weeks, the respondents approved the itinerary prepared for them and asked Reyes to make the necessary plane reservations. Reyes went to the KLM, for which the respondents had expressed preference. The KLM thereafter secured seat reservations for the respondents and their two companions from the carriers, which would ferry them throughout their trip, with the exception of Aer Lingus. When the respondents left the Philippines (without their young wards who had enplaned much earlier), they were issued KLM tickets for their entire trip. However, their coupon for the Aer Lingus portion (Flight 861 for June 22, 1965) was marked “RQ” which meant “on request.” After sightseeing in American and European cities (they were in the meantime joined by their two young companions), the respondents arrived in Frankfurt, Germany. They went to a KLM office there and obtained a confirmation from Aer Lingus of seat reservations on Flight 861. After meandering in London, Paris and Lisbon, the foursome finally took wing to Barcelona for their trip to Lourdes, France. In the afternoon of June 22, 1965, the respondents with their wards went to Barcelona airport to take their

plane, which arrived at 4:00 o’clock. At the airport, the manager of Aer Lingus directed the respondents to check in. They did so as instructed and were accepted for passage. However, although their daughter and niece were allowed to take the plane, the respondents were offloaded on orders of the Aer Lingus manager who brusquely shoved them aside with the aid of a policeman and who shouted at them, “Coños! Ignorantes Filipinos!” Mrs. Mendoza later called up the manager of Aer Lingus and requested that they provide her and her husband means to get to Lourdes, but the request was denied. A stranger, however, advised them to take a train, which the two did; despite the third class accommodations and lack of food service, they reached Lourdes the following morning. During the train trip the respondents had to suffer draft winds as they wore only minimum clothing, their luggage having gone ahead with the Aer Lingus plane. They spent $50 for that train trip; their plane passage was worth $43.35. On March 17, 1966 the respondents, referring to KLM as the principal of Aer Lingus, filed a complaint for damages with the Court of First Instance of Manila arising from breach of contract of carriage and for the humiliating treatment received by them at the hands of the Aer Lingus manager in Barcelona. After due hearing, the trial court awarded damages to the respondents as follows: $43.35 or, its peso equivalent as actual damages, P10,000 as moral damages, P5,000 as exemplary damages, and P5,000 as attorney’s fees, and expenses of litigation. Both parties appealed to the Court of Appeals. The

KLM sought complete exoneration; the respondents prayed for an increase in the award of damages. In its decision of August 14, 1969, the Court of Appeals decreed as follows: “Appellant KLM is condemned to pay unto the plaintiffs the sum of $43.35 as actual damages; P50,000 as moral damages; and P6,000 as attorney’s fees and costs.” Hence, the present recourse by the KLM. The KLM prays for exculpation from damages on the strength of the following particulars, which were advanced to but rejected by the Court of Appeals: (a) The air tickets issued to the respondents stipulate that carriage thereunder is subject to the “Convention for the Unification of Certain Rules Relating to International Transportation by Air,” otherwise known as the “Warsaw Convention,” to which the Philippine Government is a party by adherence, and which pertinently provides: “ART. 30. (1) In the case of transportation to be performed by various successive carriers and falling within the definition set out in the third paragraph of Article I, each carrier who accepts passengers, baggage or goods shall be subject to the rules set out in the convention, and shall be deemed to be one of the contracting parties to the contract of transportation insofar as the contract deals with that part of the transportation which is performed under his supervision. “(2) In the case of transportation of this nature, the passenger or his representative can

take action only against the carrier who performed the transportation during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.” (b) On the inside front cover of each ticket the following appears under the heading “Conditions of Contract”: “1. x x x (a) Liability of carrier for damages shall be limited to occurrences on its own line, except in the case of checked baggage as to which the passenger also has a right of action against the first or last carrier. A carrier issuing a ticket or checking baggage for carriage over the lines of others does so only as agent.” (c) All that the KLM did after the respondents completed their arrangements with the travel agency was to request for seat reservations among the airlines called for by the itinerary submitted to the KLM and to issue tickets for the entire flight as a ticket-issuing agent. The respondents rebut the foregoing arguments, thus: (a) Article 30 of the Warsaw Convention has no application in the case at bar which involves, not an accident or delay, but a willful misconduct on the part of the KLM’s agent, the Aer Lingus. Under Article 25 of the same Convention the following is prescribed: ART. 25. (1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance

with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct. “(2) Similarly, the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.” (italics by respondents) (b) The condition in their tickets, which purportedly excuse the KLM from liability appears in very small print, to read which, as found by the Court of Appeals, one has practically to use a magnifying glass. (c) The first paragraph of the “Conditions of Contract” appearing identically on the KLM tickets issued to them indubitably shows that their contract was one of continuous air transportation around the world: “1. x x x ‘carriage’ includes the air carrier issuing this ticket and all carriers that carry or undertake to carry the passenger or his baggage hereunder or perform any other service incidental to such air carriage. . . . Carriage to be performed hereunder by several successive carrier is regarded as a single operation.” (d) The contract of air transportation was exclusively between the respondents and the KLM, the latter merely endorsing its performance to other carriers, like Aer Lingus, as its subcontractors or agents, as evidenced by the passage tickets themselves which on their face disclose that they are KLM tickets. Moreover, the respondents dealt only with KLM through the travel

agency. [The issue presented, as stated above, is whether or not KLM is liable for damages.] 1. [The conclusion:] The applicability insisted upon by the KLM of Article 30 of the Warsaw Convention cannot be sustained. [The rule:] That article presupposes the occurrence of either an accident or a delay, [The case fact:] neither of which took place at the Barcelona airport; what is here manifest, instead, is that the Aer Lingus, through its manager there, refused to transport the respondents to their planned and contracted destination. 2. [The conclusion:] The argument that the KLM should not be held accountable for the tortious conduct of Aer Lingus because of the provision printed on the respondents’ tickets expressly limiting the KLM’s liability for damages only to occurrences on its own lines is unacceptable. [The case fact:] As noted by the Court of Appeals that condition was printed in letters so small that one would have to use a magnifying glass to read the words. Under the circumstances, [The rule:] it would be unfair and inequitable to charge the respondents with automatic knowledge or notice of the said condition so as to preclude any doubt that it was fairly and freely agreed upon by the respondents when they accepted the passage tickets issued to them by the KLM. [The rule:] As the airline which issued those tickets with the knowledge that the respondents would be flown on the various legs of their journey by different air carriers, the KLM was chargeable with the duty and responsibility of specifically informing the respondents

of conditions prescribed in their tickets or, in the very least, to ascertain that the respondents read them before they accepted their passage tickets. [The case fact:] A thorough search of the record, however, inexplicably fails to show that any effort was exerted by the KLM officials or employees to discharge in a proper manner this responsibility to the respondents. [The conclusion:] Consequently, we hold that the respondents cannot be bound by the provision in question by which KLM unilaterally assumed the role of a mere ticket-issuing agent for other airlines and limited its liability only to untoward occurrences on its own lines. 3. [The rule:] Moreover, as maintained by the respondents and the Court of Appeals, the passage tickets of the respondents provide that the carriage to be performed thereunder by several successive carriers “is to be regarded as a single operation,” which is diametrically incompatible with the theory of the KLM that the respondents entered into a series of independent contracts with the carriers which took them on the various segments of their trip. [The conclusion:] This position of KLM we reject. [The case fact:] The respondents dealt exclusively with the KLM which issued them tickets for their entire trip and which in effect guaranteed to them that they would have sure space in Aer Lingus Flight 861. The respondents, under that assurance of the internationally prestigious KLM, naturally had the right to expect that their tickets would be honored by Aer Lingus to which, in the legal sense, the KLM had indorsed and in effect guaranteed the performance of its principal engagement to carry out the respondents’ scheduled itinerary previously and mutually agreed upon between the parties.

4. [The case fact:] The breach of that guarantee was aggravated by the discourteous and highly arbitrary conduct of an official of the Aer Lingus which the KLM had engaged to transport the respondents on the Barcelona-Lourdes segment of their itinerary. [The rule:] It is but just and in full accord with the policy expressly embodied in our civil law which enjoins courts to be more vigilant for the protection of a contracting party who occupies an inferior position with respect to the other contracting party, [The conclusion:] that the KLM should be held responsible for the abuse, injury, and embarrassment suffered by the respondents at the hands of a supercilious boor of the Aer Lingus. ACCORDINGLY, the judgment of the Court of Appeals dated August 14, 1969 is affirmed, at KLM’s cost.

Omitted Statement At times, you could omit from your argument one of its essential statements—your rule, your case fact, or even your conclusion—if that element is so evident that it goes without saying. For example, if you could show by evidence of his birth certificate that the defendant has lied about his age, you could immediately conclude that what he said about his age could not be believed. You need not state your “rule” that “falsehoods cannot be believed” since this goes without saying. Likewise, you could also omit stating your conclusion when it is already obvious based on how you clearly discussed your “rule” and your “case fact.” Leaving it to your reader to draw his own conclusion could work very well. Take for example this argument in a Supreme Court decision:

[The issue:] The principal issue raised is the validity of the donation executed by Catalina in favor of Violeta. [The rule:] Under Article 749 of the Civil Code, the donation of an immovable must be made in a public instrument in order to be valid, specifying therein the property donated and the value of the charges which the donee must satisfy. As a mode of acquiring ownership, donation results in an effective transfer of title over the property from the donor to the donee, and is perfected from the moment the donor knows of the acceptance by the donee, provided the donee is not disqualified or prohibited by law from accepting the donation. Once the donation is accepted, it is generally considered irrevocable, and the donee becomes the absolute owner of the property. The acceptance, to be valid, must be made during the lifetime of both the donor and the donee. It may be made in the same deed or in a separate public document and the donor must know the acceptance by the donee. [The case fact:] In the case at bar, the deed of donation contained the number of the certificate of title as well as the technical description of the real property donated. It stipulated that the donation was made for and in consideration of the “love and affection which the DONEE inspires in the DONOR, and as an act of liberality and generosity.” x x x The donee’s acceptance of the donation was explicitly manifested in the penultimate paragraph of the deed x x x. x x x The fact that it was acknowledged before a

notary public converts the deed of donation in its entirety into a public instrument. x x x (Quilala v. Alcantara, 371 SCRA 311, 317-319; penned by Justice Consuelo Yñares-Santiago.) In the above, the conclusion that the deed of donation in question meets all the requirements of a valid donation is quite obvious and did not have to be stated. The danger, however, is that many lawyers and students presume that their rule, their case fact, or their conclusion is quite evident that they need not state it in their argument. It often happens that they misread how their average readers think. The omitted proposition or conclusion could be quite unclear to these readers. In such a case, the argument has no force. Consequently, in case of doubt, it will be best to completely deploy all the essential statements of your argument.

Closing Statement On occasions, it will help to make a closing statement. The idea behind every closing statement is to depart on a good note after packing your pleading with every sort of argument in support of your stand. Consequently, your closing argument should not appear to argue even if it may appeal to the good sense of the judge exercised in your favor. How can you do this? Recall to your reader those truths that underlie every good decision in identical cases. He cannot disagree with that. Consider this closing statement in the rape case: Concluding Statement Ronald is entitled to an acquittal. In rape, the Court must thoroughly examine the evidence of the complainant since only her testimony stands between conviction and acquittal. Where her testimony is

inconsistent with common experience and defies reason as in this case, it should not be believed. The version of the accused may itself be weak but the conviction cannot rest on such weakness. It must stand on the strength of the prosecution’s evidence alone. Prayer Wherefore, the accused respectfully prays that judgment be rendered acquitting him of the charge of rape. x x x

x x x

x x x

Writing Exercises 1. If you did pre-work on the case of the girl whom a neighbor’s dog attacked, you will have already roughed out your arguments. You should be ready by now to flesh these out. Do so applying the principles, lessons, and techniques that you have learned. 2. Write up, too, your closing statement in the case.

1Delsan Transport Lines, Inc. v. Court of Appeals, 369 SCRA 24 (2001), penned by Justice Sabino R. De Leon, Jr. 2Cebu Shipyard and Engineering Works, Inc. v. William Lines, Inc., 306 SCRA 762, 778 (1999). 3Philippine American General Insurance Co., Inc. v. Court of Appeals, 184 SCRA 54, 58 (1990), citing Boney, Insurance Commissioner v. Central Mutual Ins. Co. of Chicago, 197 S.E. 122.

10. Tightening Your Work Completing the write-up portion of your pleading or paper would not be enough if your aim were excellence in writing. Editing is essential to excellent writing. Indeed, some say that true writing is rewriting. Each person, like you, has his writing style and he is entitled to conform to that style. This book does not suggest that you change your style; it only suggests some ways you can make your writing style even better. These suggestions aim to help you write clearly and vigorously, in your own style. Consequently, when the suggestions appear to hinder your writing style, disregard them. But keep an open mind to make changes when you discover something useful for you in the lessons provided in this and in the succeeding chapters.

Language Problems Ordinary people complain that they encounter so much difficulty and frustration in trying to understand the “legal garbage” that lawyers put down in their opinions or pleadings, even though these would be read by or are ultimately intended for non-lawyers. One reason for this is that most lawyers simply lack practical training in the art of making opinions or writing thesis. The emphasis in law schools is on learning enough of the law to pass the class or the bar examinations rather than on writing about the law for others. Because of this, what the law students acquire are skills in making

loose syllabi, outlines, or short notes needed for preparing for the examinations. These are not writings intended for convincing others to accept a point of view. Consequently, on leaving law school, most law graduates write pleadings in the familiar format they knew—disorganized, longwinded, and repetitious loose notes. And, to compensate for inadequate training, a good number of these graduates resort to using in their pleadings out-of-context “legalese words or phrases” cut out of some Supreme Court decisions. As young lawyers, they hope to impress more than to persuade. Here is a classic example in the use of needless words, claimed to be the work of a lawyer: I hereby give, transfer, and convey to you, each and every interest, right, title, claim, and benefit that I have in the said orange, together with its rind, skin, juice, and pulps, with all the rights and benefits appurtenant thereto, including the full power to bite, or suck, or otherwise eat the same or give the same away, with or without the rind, skin, juice, and pulps, anything hereinbefore or hereinafter or in any other means of whatever nature or kind whatsoever to the contrary notwithstanding. Yet, all that the lawyer wanted to say is: Have an orange.

Needless Words Think of a memorandum in a case as a pot of special dish, a mixture of different ingredients in prescribed quantities, mixed together, and cooked as the dish required. If you pour five cups of water when the recipe calls for only one cup, you would be watering down the taste of

your dish. A memorandum with more words that are needed to bring home its message to the reader has the same result. Useless circumlocutions clutter and dissipate the power of your message. Consequently, you must develop the practice of throwing out excess words, phrases, and sentences and tightening your work to make it compact and terse. Vigorous writing, said Strunk and White in that famous little book, Elements of Style,1 is concise. “A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires, not that the writer make all sentences short, or avoid all detail and treat subjects only in outline, but that every word tell.” Under the Revised Rules of Court, every party to a lawsuit must send to his adversary a copy of every pleading or paper that he files in court. The rules prefer that a messenger personally deliver the copy but sending it by registered mail is also allowed. It has been noted, however, that some lawyers furnished copies of their papers to their opponents by registered mail even if the latter held office just next door. For this reason, Section 11 of Rule 13 of the Revised Rules of Civil Procedure provides that when a lawyer sends a copy of his paper to his opponent by registered mail he should include an explanation for doing it that way. In a case, one lawyer included this explanation in his paper: EXPLANATION Pursuant to Section 11 of Rule 13 of the New Rules on Civil Procedure, explanation is hereby given that a copy of this pleading was served upon opposing counsel by means of registered mail and not by personal service, the

latter mode being impractical due to and for the reasons that heavy volume of deliveries/service/filing of equally important pleadings, motions, notices of the law firm in other courts or tribunals and to opposing counsels or parties render such personal service impossible not to mention the separate and different geographical distance that need to be traversed if personal service is resorted to. Yet, all that the lawyer wanted to say is: Explanation: Defendant has to serve a copy of this comment on the plaintiff by registered mail because of the distance and the lack of a messenger who can make a personal service. Just how do you tighten a piece of legal writing without sacrificing the color and substance of your argument? It is simple. Take out those words, phrases, or sentences that do not contribute to your reader’s understanding of what you are saying. Consider the arguments that an airline company offered in its defense against a suit by disgruntled passengers.2 The spouses Manuel and Karen Romano and their friends Julio Fernan, Vicky Sandoval, Art Gatchalian, and Laura Sevilla decided to take a vacation in Bangkok, Thailand. They asked Sweet Travel, Inc. to book them on a morning flight on May 8. Sweet Travel in turn endorsed the booking to Hope Tours, Inc., a member of the International Air Transport Association (IATA) and an agent of China Airlines (CAL). On May 5 Hope Tours issued the tickets on behalf of CAL on the faces of which appeared the word “OK” to signify a confirmed booking status for each of the passengers.

But, when the group checked in for their flight, only the Romanos had confirmed reservations. CAL put the rest on waiting list but only Fernan and Sandoval got seats on the plane when some confirmed passengers did not show up. CAL advised Gatchalian and Sevilla to get on another airline’s flight that was leaving hours later. CAL declined, however, to make the arrangement for them. Eventually, only four (4) of the original six boarded the CAL flight. Because the four travelers had to wait for hours at the Bangkok airport for their two companions, their host had to leave them. They had to fend for themselves and give up their scheduled afternoon tours. On returning to Manila, the group sued CAL, Sweet Travel, and Hope Tours for damages arising from the expenses, inconveniences, and frustrations that they suffered. In defending itself, CAL claimed that it received reservations for the six passengers on May 4, recorded them in its computers, and confirmed the reservations subject to actual ticketing not later than noon of May 5 or the reservations would automatically be cancelled. At Sweet Travel’s request, CAL extended the ticketing deadline to noon of May 6 and later to noon of May 7. Meantime, Sweet Travel endorsed the ticketing of the six passengers to Hope Tours. But, since neither Sweet Travel nor Hope Tours reconfirmed the bookings of the group before the May 7 time limit, these were cancelled due to expired ticketing option. At 2 p.m. of the same day, Sweet Travel rebooked the group on a waitlist status for the same flight. On May 8, CAL confirmed the bookings for the Romano spouses but not those for their four companions. When the six of them came to the airport and presented their tickets, CAL accepted only the Romanos for check-in despite the confirmed status written on all their tickets. Only when some confirmed passengers appearing on CAL’s list did not show up, did it take Fernan and Sandoval in. Gatchalian and Sevilla had to take a Thai Airlines’ flight late that afternoon. Below is how CAL’s counsel presented his client’s arguments. Defendant CAL did not violate its contract of carriage

with the plaintiffs. The two plaintiffs with the surname Romano, who were holding confirmed reservations, were immediately accommodated on defendant CAL’s Flight CL 507/May 8/Manila-Thailand. On the other hand, the two other plaintiffs namely Fernan and Sandoval, who were wait listed, eventually boarded the subject flight because not all confirmed passengers for said flight showed up at the NAIA. As to the two remaining passengers, namely Gatchalian and Sevilla, they were waitlisted passengers who, therefore, cannot demand that they be accommodated on the same flight since they were not holding confirmed reservations thereon. Defendant CAL never repudiated the contract it entered into with the two plaintiffs with the surname Romano as it was willing, and in fact, did fulfill its obligation to fly said plaintiffs to Bangkok, Thailand, in accordance with the nature and extent of its commitment to said plaintiffs under their completed transactions. It must be remembered that it was the two plaintiffs with the surname Romano who refused to board the plane early and who chose to wait for two or three hours to ascertain whether the other plaintiffs can board the flight that day. Hence, any alleged inconvenience and discomfort suffered by the two plaintiffs with the surname Romano involving their travel arrangements on the day of the flight cannot be attributed to defendant CAL since for there to be any breach by defendant CAL, there must have been refusal and failure to abide by the terms of the contract by defendant CAL which is not the case herein (Cf., Arts. 1156 and 1159 in relation to Arts. 1305, et seq., Civil Code). Neither can the two plaintiffs with the surname

Romano impute liability to CAL for any vicarious emotional suffering they claim to have experienced respecting the circumstances of the other four plaintiffs. Each of the members of the group had a contract with defendant CAL that is entirely separate and distinct from that of the others as “contracts take effect only between the parties and cannot be binding upon nor be enforced against one who is not a party to it” (Ozaeta v. Court of Appeals, 228 SCRA 7, 11; see also Capital Insurance & Surety Co., Inc. v. Central Azucarera del Danao, 221 SCRA 99, 104). Therefore, the two plaintiffs with the surname Romano have no standing to question any arrangement that may have been effected between defendant CAL and the four other plaintiffs who were wait listed. Given the foregoing discussion, it is with more reason that defendant CAL cannot be held accountable for whatever confusion and disturbance that was allegedly suffered by plaintiffs Fernan, Sandoval, Gatchalian, and Sevilla. As passengers with unconfirmed reservation, the extent of defendant CAL’s obligation to said plaintiffs [other than the two passengers with the surname Romano] is defined by their status as wait listed passengers. This circumstance indicated that defendant CAL could not have reneged on any obligation to board the plaintiffs [other than the two passengers with the surname Romano] on the subject flight because such duty never materialized as it was subject to the change in the status of said plaintiffs from wait listed to confirmed passengers. In effect, any obligation on the part of defendant CAL to board the remaining plaintiffs at such

point was yet a potentiality to be determined by the availability of accommodations and consequent confirmation of their bookings. Further, it must be noted that despite their unconfirmed bookings, two of the four wait listed plaintiffs, namely, Fernan and Sandoval, were able to board the flight with defendant CAL’s intervention. This positively disputes plaintiff’s claim that defendant CAL violated its contract with the said four plaintiffs because on the contrary, defendant CAL actually rendered service beyond the requirements of its contract with the wait listed plaintiffs. In all these subject transactions, neither is there any fact on record which shows that defendant CAL was less than diligent in the performance of its service to the plaintiffs or that it deviated from the established procedure warranted by the circumstances. Nor is there any incident which would negative the courteous assistance defendant CAL’s employees have accorded the plaintiffs. In fact, defendant CAL was more than attentive to the plaintiffs as it gave way to their request by accommodating two (2) of the four (4) plaintiffs on the same flight that day upon defendant CAL’s intercession. The argument is plausible but it seems that the author did not go over his pleading to rid it of useless and sometimes redundant words or phrases. Here are the suggested revisions: Defendant [this description of CAL’s position in the suit need not be repeated all throughout the paper; describing CAL as “CAL” is adequate] CAL did not violate its contract of carriage with the plaintiffs (group) [since the

plaintiffs were collectively identified in the statement of facts as “the group,” it would be less confusing to consistently describe them as such rather than according to their position in the suit]. The two (2) plaintiffs with the surname Romano(s) [calling a couple by their surnames “the Romanos” is less cumbersome and correct; since the Romanos are a couple, it is also superfluous to say that they are two], who were holding had [“had” is shorter yet the meaning is not changed] confirmed reservations, were immediately accommodated taken into the [“taken into” is less stiff] on defendant CAL’s Flight CL 507/ May 8/ Manila-Thailand [since the details of the flight are not in issue, it will be superfluous to mention them]. On the other hand [‘on the other hand’ is supposed to tie together two contrasting ideas; it is inappropriate here since what follows does not present a different situation] the two (2) other plaintiffs [when a number is written in word, here “two,” you usually do not have to write its equivalent in figures (2) inside a parenthesis for that would be superfluous unless you are writing a check.] namely Fernan and Sandoval, who were while at first [“while at first” sounds better since it introduces a subsequent event] wait listed, eventually boarded the subject flight because not all after confirmed passengers for said flight did not showed up at the NAIA [this phrase has been shortened with no change in meaning]. As to the two (2) remaining passengers, namely [crossed out because it repeats what had already been said] Gatchalian and Sevilla they were wait listed passengers who, therefore, [superfluous to mention that “they were wait listed” because of later statement that they had no confirmed reservations] cannot demand that they be accommodated on the same flight the right to board [the “right to board” is shorter] since

they were not holding did not have [“did not have” is simpler] confirmed [superfluous] reservations thereon. Defendant CAL never repudiated the its contract it entered into with the two (2) plaintiffs with the surname Romanos. as it was willing, and In fact, did fulfill its obligation to fly it flew said plaintiffs them to Bangkok, Thailand, in accordance with as was the nature and extent of its commitment to said plaintiffs under their a completed transaction. [The words that were crossed out can be dispensed with.] Of course, It must be remembered that it was the two (2) plaintiffs with [plain clutter!] the surname Romanos who refused to board the plane early and who chose to wait for two or three hours to ascertain whether if the others plaintiffs can board the flight that day were allowed on the plane [“were allowed on the plane” is more direct]. Hence, any alleged if the Romanos suffered inconvenience and discomfort suffered by the two (2) plaintiffs with the surname Romano involving with respect to their travel arrangements on the day of the flight, they cannot be attributed to defendant blame this on CAL since for there to be any breach by defendant CAL, there must have been refusal and failure to abide it neither refused nor failed to abide by the terms of the contract by defendant CAL which is not the case herein with them. [Here the sentence was shortened by excising unneeded words and rewriting a few.] (Cf., Arts. 1156 and 1159 in relation to Arts. 1305, et seq., Civil Code). After the revision, the first two paragraphs of CAL’s arguments read like this:

CAL did not violate its contract of carriage with the group. The Romano spouses had confirmed reservations and were immediately taken into the flight. Fernan and Sandoval, while at first wait listed, were eventually allowed to board after confirmed passengers did not show up at the NAIA. Gatchalian and Sevilla, the remaining two, could not demand the right to board since they did not have confirmed reservations. CAL never repudiated its contract with the Romanos. In fact, it flew them to Bangkok, Thailand, as was its obligation, in accordance with the nature of its commitment under a completed transaction. Of course, the Romanos refused to board the plane early and chose to wait two or three hours to ascertain if the others were allowed on the plane. Therefore, if the Romanos suffered inconvenience and discomfort with respect to their travel arrangements for the day, they cannot blame these on CAL since it neither refused nor failed to abide by its contract with them. (Cf., Arts. 1156 and 1159 in relation to Arts. 1305, et seq., Civil Code.) Do you sense the difference when work is tightened by deleting unnecessary words and phrases? Below is the rest of the argument after revision. Compare it with the original, examine what was done to tighten the argument, and trace the revisions on the original to appreciate the changes made. Neither can the Romanos impute liability to CAL for their emotional grief in having witnessed the fate of their companions. Each passenger has a contract with CAL that is separate and distinct from those of the others. “Contracts take effect only between the parties and cannot be binding upon nor enforced against one who is

not a party to it” (Ozaeta v. Court of Appeals, 228 SCRA 7, 11; see also Capital Insurance & Surety Co., Inc. v. Central Azucarera del Danao, 221 SCRA 99, 104). The Romanos have no standing to question CAL’s transactions with the others who were wait listed. It follows from the above that, with more reason, CAL cannot be held liable for the confusion and disturbance that Fernan, Sandoval, Gatchalian, and Sevilla allegedly suffered. Since the latter did not have confirmed reservations, CAL’s obligations to them are defined by their wait listed status. The circumstances show that CAL could not have reneged on its obligation to board the four wait listed passengers because this obligation depended on the change of their booking status from “wait listed” to “confirmed.” The obligation to board them was a mere possibility that depended on seat availability and confirmation of bookings. Further, CAL intervened to allow Fernan and Sandoval to board the flight despite their unconfirmed bookings. This refutes the claim that CAL violated its contracts with the wait listed passengers. On the contrary, CAL served them beyond what those contracts required. The record fails to show that CAL was less than diligent in its service to the passengers or that it deviated from established procedures. Nor does the record show that CAL’s staffs failed to render courteous assistance to them. Indeed, CAL was more than attentive in that it boarded on the same flight two of those who had been wait listed.

A great number of lawyers today still write as if they are being paid based on the quantity of words they put into their pleadings. Unfortunately, their works suffer in quality, adversely affecting their chances of winning their cases. They simply cannot get the sympathy of judges to whom they submit work that requires tiresome reading. In the end, these lawyers earn even less. Consequently, remain vigilant in spotting unneeded words in your writing. Since these have a way of creeping into your work, learn to recognize them. Below are examples of what could be done to get them out of your sentences. Sense the strength that sentences gain when unneeded words are taken out without changing their message. The question as to whether the accused is guilty must be resolved in court.

Whether the accused is guilty must be resolved in court. (10 as against 14 words)

There is no doubt but that the law must be obeyed.

No doubt the law must be obeyed. (7 against 11 words)

The sincerity of his conviction is conceded but it does not suffice.

His sincere conviction, while conceded, is not enough. (8 against 12)

It must be stressed that administrative complaints are

Administrative complaints are

accusatorial in nature (if the sentence needs to be stressed, underline it or put an exclamation point at the end).

accusatorial! (4 against 11)

But more than what has just been observed, a legal impediment stands in the way of giving the lenient treatment appellant invokes in his appeal.

More, a legal impediment bars the lenient treatment appellant invokes in his appeal. (13 against 25)

It is that the records of the case do not afford any basis on which to judge the degree of instruction of the appellant, no evidence having been taken relative thereto because he entered a plea of guilty.

The records of the case do not show appellant’s degree of instruction, no evidence having been taken regarding it because of his plea of guilty. (25 against 38)

On April 30 all the rights, interests, and participation (since “all interests” embraces rights and participation, the latter words are superfluous) of Garcia in the said property were sold at public auction.

On April 30 all of Garcia’s interests in the property were sold at public auction. (15 against 20)

At the outset, it should be clarified that (if your clarification comes at the beginning of your discussion, it might be superfluous to make a point of it by saying, “At the outset.”), the accused did not admit his guilt.

Clearly, the accused did not admit his guilt. (8 against 15)

The decision subject of this petition has been rendered by respondent Judge Jaime Solis, hereinafter referred to as the respondent judge (this last phrase is useless when the case involves only one judge; you could just refer to him straight as respondent judge).

Respondent Judge Jaime Solis rendered the decision subject of this petition. (11 against 21)

A credit card is used for borrowing purposes.

A credit card is used for borrowing. (7 against 8)

It is more in keeping with reason to hold that once guilt is admitted, evidence can be dispensed with.

It stands to reason that once guilt is admitted, evidence can be dispensed with. (14 against 19)

He is a man who cannot be trusted.

He cannot be trusted. (4 against 8)

This is a case that is difficult to understand.

This case is difficult to understand. (6 against 9)

His version is a strange one.

His version is strange. (4 against 6)

The reason why he fled is that he was afraid.

He fled out of fear. (5 against 10)

In spite of the fact that she got paid, she refused to drop the case.

Although paid, she refused to drop the case. (8 against 15)

We call your attention to the fact that you have not left your address with us.

We remind you that you have not left your address with us. (12 against 16)

The fact that he had not

His failure

succeeded worried him.

worried him. (4 against 9)

The fact that she had arrived saddened him.

Her arrival saddened him. (4 against 8)

Carlos, who was the star witness in the case, was missing.

Carlos, the star witness in the case, was missing. (9 against 11)

Baguio, which was the venue of the conference, was cool.

Baguio, the venue of the conference, was cool. (8 against 10)

While they were having dinner, the accused shot the victim.

During dinner, the accused shot the victim. (7 against 10)

Republic Act No. 123 (since 123 is a number, describing it as such is superfluous) does not apply.

Republic Act 123 does not apply. (6 against 7)

Under the circumstances, however, with coaxing and cajoling on the part of the

With Ignacio tempting and seducing her,

accused, there was nothing unlikely in the stage of sexual congress with complainant being reached.

Ruby agreed to have sex with him. (11 against 26)

Active versus Passive Voice One technique works to tighten and enliven any writing: use of the active voice in place of the passive voice. English has two voices: (1) the active; and (2) the passive voices. The passive voice is indirect, limp, and weak. For example: “Abel was killed by Cain.” Abel is the subject of the sentence yet he does nothing in the sentence. Something was being done to him. And the sentence needed five words to describe what happened. On the other hand, the active voice is direct, vigorous, and strong. “Cain killed Abel.” Cain is the subject of the sentence and he is doing something in the sentence. The sentence needed only three words to describe what happened. Sense the difference. Abel was killed by Cain.

Cain killed Abel.

Computer programs for composing sentences usually carry suggestions for grammar and good writing. One of these is their preference for active over passive voice. The following excerpt from a pleading illustrates the lifeless quality of a work heavily dependent on the use of passive voice. Counsel used mostly the passive voice in showing that the motorcycle driver, whom his company’s truck sideswiped, negligently moved by the truck’s side.

Apparent is the fact that the negligence of the truck driver was not established. Nowhere in the victim’s testimony does it state that the truck driver was driving negligently. More apparent is the fact that the truck he was driving was moving slowly following the flow of the traffic and was therefore proceeding with caution. This is so in view of the fact that, as the victim himself testified, there was a traffic jam and it was physically impossible for big trucks to drive fast. On the contrary, and what is equally clear from the above testimony, is the fact that the victim was proceeding without any caution and at the same time was at the wrong side of the road. This is so because it is always the natural and actual operational tendency of big trucks (especially those with trailers) to make wide turns to the left or to the right. Now, naturally, when a prudent man sees or is driving beside it, his reaction would be to distance himself from the said truck or better still to stop completely until the truck passes. But despite this, the victim completely did the opposite thing. He was not careful to stop and allow the truck to pass. The revised version, employing the active voice, appears below: Apparently, the prosecution failed to prove the driver’s negligence. Indeed, the victim did not claim that the truck driver drove his truck negligently. More evidently, the latter proceeded with caution and moved slowly with the flow of traffic. This follows from the fact that, as the victim himself said, a traffic jam beset the road and this made it impossible for big trucks to move fast.

On the contrary, the victim clearly testified that he proceeded without caution and on the wrong side of the road. By their nature, big trucks (especially those with trailers) tended to make wide turns either to the left or to the right. Naturally, a prudent man driving alongside such a truck would keep distance from it or, better still, would come to a complete stop and let the truck pass first. Here, the victim did the opposite thing: he did not care to stop and allow the truck to pass. See how the work dramatically improves by the simple process of converting from passive to active voice. Consider the following additional examples of sentences using the passive voice that have been converted to active voice: The documents were fabricated by Manuel.

Manuel fabricated the documents. (4 as against 6 words)

The ransom note was written by appellant Adama.

Adama wrote the ransom note. (5 against 8)

It is the contention of appellant Cruz that his defense of alibi was duly established.

Cruz contends that he duly established his alibi. (8 against 15)

There was enough

light inside the house to enable Celestina to recognize the intruders. It was admitted by petitioner that motions for reconsideration were filed by him with reference to the above assailed decision.

With enough light in the house, Celestina could recognize the intruders. (11 against 14)

Petitioner admits that he filed motions for reconsideration of the assailed decision. (12 against 20) [The word “above” may be deleted when the discussion involves no other decision.]

The passive voice of course has its use. For example: “Celso was killed.” The subject (Celso) is not acting but is being acted upon. This shows the cold brutality of what had been done to him. On the whole, however, passive voice should be the exception and active voice should dominate your writing. When you are able to do this, your writing will acquire new vigor; your style will be enhanced.

Third Person Speaks Legal writing is often best written in the third person, as most written works are. The main reason for this is that he who writes in the third person, focuses attention to his work or message rather than to himself. Besides, a statement is more forceful and convincing without personal pronouns. It carries more conviction. I believe that God exists.

God exists.

It is my opinion that smoking causes cancer.

Smoking causes cancer.

I think that Jose committed the crime.

Jose committed the crime.

Writing in third person says exactly the same thing but it has more punch. “I believe” makes the sentence weak and defensive. Also, when you say, “I believe, etc.” you are writing about yourself. You are placing yourself between the reader and your topic. Furthermore, “I think” and “I feel” are redundant since the reader knows that the statements belong to you as their author. Do not try, however, to conceal “I think” in the phrase “the writer thinks” or “in the opinion of the writer.” These are substitute first persons and are even more annoying. In the opinion of the writer, something should be done about the problem immediately.

Something should be done about the problem immediately. (8 as against 14 words)

Here are other first person substitutes: One never knows what might happen.

Anything might happen. (3 against 6)

A person should always have credit.

Credit is essential. (3 against 6)

Courts often write in substituted first person. Nothing is essentially wrong with this and tradition in the Philippines seems to favor such a format. But there is merit in courts writing in the third person since it is shorter, yet the meaning remains exactly the same. In our considered opinion, the defendant acted in bad faith. (The court’s statement about itself diverts attention from the real subject of the sentence, the bad faith of the accused.)

The defendant acted in bad faith. (6 as against 10 words.)

We do not find any reversible error on the part of the trial court.

The trial court committed no reversible error. (7 against 14)

Be that as it may, however, we take the view that the penalty of suspension from office is too severe.

Still, the penalty of suspension from office is too severe. (10 against 20)

We find it difficult to disregard the extrajudicial confession of the accused just because he repudiated it during the trial.

The accused’s extrajudicial confession is difficult to disregard just because he repudiated it during trial. (15

against 20) Again, observe that the second versions are shorter yet their meaning remains exactly the same. And when the courts or the parties use third person in their writings, they are able to avoid talking about themselves. All the focus falls on the merit of the case. The defendant thinks that the evidence is strong.

The evidence is strong.

In the opinion of the prosecution, the accused defrauded the victim.

The accused defrauded the victim.

The Court finds that the accused is guilty as charged.

The accused is guilty as charged.

Writing in second person creates the same problem. You (second-person) cannot help liking this book. (The focus is on the second person rather than on the central message.)

This book is irresistible.

Writing in second person has of course its uses as when you write a recipe for some dish or you write a how-to-do-it book like this one. The sentences in this format function as suggestions or instructions.

Block Quotations Another way of cramping your work with unnecessary words is the use of excessive block quotations. Take this argument in an administrative action against a judge for gross ignorance of the law. The complainant filed the charge against the judge after receiving an adverse decision in his case. The judge employed the following argument in his defense. The task of a judge as dispenser of justice is not easy. Because he must decide a case one way or the other, he usually cannot satisfy all the litigants involved. Here, complainant Sison, the losing party, seemed unhappy over respondent judge’s decision and has filed an administrative case against him for alleged gross ignorance of the law. But, as the Supreme Court said in Flores v. Abesamis: As everyone knows, the law provides ample judicial remedies against errors or irregularities being committed by a Trial Court in the exercise of its jurisdiction. The ordinary remedies against errors or irregularities which may be regarded as normal in nature (i.e., error in appreciation or admission of evidence, or in construction or application of procedural or substantive law or legal principle) include a motion for reconsideration or after rendition of a judgment or final order, a motion for new trial), and appeal. The extraordinary remedies against error or irregularities, which may be deemed extraordinary in character (i.e., whimsical, capricious, despotic exercise of power or neglect of duty, etc.) are inter alia the special civil actions

of certiorari, prohibition or mandamus, or a motion for inhibition, a petition for change or venue, as the case may be. Now, the established doctrine and policy is that disciplinary proceedings and criminal actions against Judges are not complementary or suppletory of, nor a substitute for, these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of these judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, are prerequisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality, that the door to an inquiry into his criminal, civil or administrative liability may be said to have opened, or closed. You put unnecessary burden on your reader when, as in the above, you bodily quote large chunks from Supreme Court decisions and then leave it to him to determine which portion of what you quote directly applies to your case. In reality, judges simply scan these quotations, if they do not skip them altogether, hoping to spot the portions that make sense in the case. When that fails, few would bother to reread the quotations. To lighten the burden of your reader, simply quote the important portion of the court’s ruling or paraphrase it before quoting it. In this way, you give your reader the option of skipping the quotations if he finds no need for reading them. In a case, the surety company, which guaranteed the timely completion of a building, tried to avoid liability

by pointing out that the building owner neglected to report the contractor’s delay the first time the owner noted it. Observe below how the owner’s counsel paraphrased the Supreme Court ruling that he invokes before quoting it: Although David found Marc Builders to have incurred some delay earlier in April in pursuing the project, such delay was not substantial. Only about three months from the start of the project had passed. David considered taking some adverse action but, on further consideration, he realized that the delay did not yet threaten the timely completion of the project, which had been set on November 27, still several months away. Consequently, David found it premature to cancel the contract and file a claim against the contractor’s surety for such non-threatening delay. The Supreme Court held in Umali v. Court of Appeals,3 that [here is the paraphrasing] slight defaults or mere suspicions of possible defaults did not toll the period for filing the claim against the surety bond. Thus: Fundamental likewise is the rule that, except where required by the provisions of the contract, a demand or notice of default is not required to fix the surety‘s liability. Hence, where the contract of suretyship stipulates that notice of the principal‘s default be given to the surety, generally the failure to comply with the condition will prevent recovery from the surety. There are certain instances, however, when failure to comply with the condition will not extinguish the surety‘s liability such as failure to give notice of slight defaults, which are waived by the obligee; or on mere suspicion of possible

default; or where, if a default exists, there is excuse or provision in the contract exempting the surety from liability therefor; or where the surety already has knowledge or is chargeable with knowledge of the default. Moreover, when a doctrine of law invoked is quite well-known and is securely entrenched in past precedents, it would serve no useful purpose to quote from portions of so many decisions of the Supreme Court. In fact, you could simply cite those decisions in your work without having to copy portions of them.

Writing Exercises The following portions of a memorandum filed in a theft case need tightening. Use the lessons you learned in eliminating needless words and using the active voice. On or about 10:30 a.m. of May 23, respondent Jaime Gozon, accompanied by his accountant, went to Carlton Beer Parañaque Sales Office and requested for the reconciliation of his account. He was attended thereto by Financial Analyst Ben Lazo. The warehouseman, Cenon Veles, was requested by Lazo to bring the needed documents for reconciliation and to attend the meeting as well. While waiting for Mr. Veles, Lazo was requested by Gozon that he be allowed to see BPI Check No. 17894 dated June 20 in the amount of P4,709,760.00, claiming that it was already covered by the return of equivalent value of beer empties to Carlton. This claim was disputed by Lazo who explained that P2,700,000.00 worth of empties was still unaccounted for. This,

notwithstanding, check custodian Belen Yusi was asked by Lazo to immediately show to Gozon the postdated check in question. The requested check, however, was attached to a bond paper, containing, among others, BPI Check No. 27867 postdated to July 8 in the amount of P11,500,000.00. The bond paper containing these checks was initially given to Gozon’s accountant, but was subsequently gotten hold of by Gozon. Thereafter, the latter instructed his accountant to pack-up their things and they hurriedly left the sales office. Yusi pleaded with Gozon to return the checks and even tried to prevent him from leaving but all her efforts proved futile. As the events happened so fast, Yusi failed to notify the security guards about the incident, hence, the failure of the latter to prevent Gozon and his accountant from leaving the sales office at 10:51 a.m. or barely eleven minutes from the time of their arrival. Gozon claims that the relation between Carlton Beer and him was one of creditor-debtor and that their problem lay in the reconciliation of accounts and the non-payment of the beer empties which cannot give rise to a criminal prosecution for theft. Carlton Beer cannot agree. In the first place, the issue is not the non-payment of beer empties, but a criminal act of stealing. Secondly, the stolen check BPI Check No. 27867 dated July 8 in the amount of P11,500,000.00 was issued by Gozon in payment of the contents of Carlton Beer products and not for empties thereof (Annexes A, B, and C). While it is probably true that the matter of Gozon’s illegal taking of the checks was never discussed during

the subsequent reconciliation meetings of the parties, this could be explained. The reconciliation of account, which was an offshoot of the parties’ agreement to purchase and sell, was governed by the Civil Code while the criminal act of theft was covered by the penal code. This was precisely the reason why the theft committed by Gozon on May 23 was never discussed nor considered by the representatives of Carlton Beer, whenever the parties were discussing the issue of reconciliation of account.

1Fourth Edition, p. 23. 2The details have been changed to protect the privacy of the persons involved. 3189 SCRA 529, 545-546 (1990).

11. Writing Clearly One of the primary criteria for good writing is clarity in writing. A good number of techniques have been developed for writing clearly. This book will address some of the most helpful ones in legal writing.

Right Connectives Communicated thoughts can be likened to a cargo train. A locomotive engine leads several cars of cargo to their destination with each car connected to the next by special coupling mechanisms. Without these connections, the cargo cars would go nowhere. When you put together several sentences or ideas to deliver one message, you need coupling mechanisms to tie these ideas together. These are called connectives or transitory devices. They help the reader see the connections between your sentences or paragraphs. Without them, many readers would be confused regarding your intentions. Take for example this sentence: The deceased was rich. She left P50,000.00 to her maid in her will. Insert the connective “indeed” between the sentences and see its effect on the message.

The deceased was rich. Indeed, she left P50,000.00 to her maid in her will. The message brought about by the connective “indeed” is that the deceased must have really been rich because she could afford to give away P50,000.00 to a maid. In other words, the second sentence affirms the truth of the first sentence. Now, change the connective “indeed” with the word “yet” and see the effect. The deceased was rich. Yet, she left P50,000.00 to her maid in her will. Sense the difference that the change in connective makes. Now, the message is different. The deceased was quite rich, probably a billionaire, but she was too stingy and gave her faithful maid only P50,000.00. From a positive image, the deceased acquires a negative one. In spoken language, the listener usually succeeds in getting the connections between the speaker’s ideas because the latter gets an assist in clarifying his meaning from his gestures, from the expression of his face, from the tone of his voice, or from his pauses. These are not available in written language. You need the help of connectives or transitory devices to link your ideas one after the other and present a unified thought. You cannot assume that your reader can read unspoken tie-ups between ideas. The English language has many useful connectives: CONNECTIVES

FUNCTION

EXAMPLES

And

Connects two ideas of the same kind.

Defendant refused to acknowledge his debt and he would not pay it.

Besides, what is more, furthermore, in addition, and again

Adds another thought to the first. (They could be used interchangeably.)

a) Plaintiff called defendant by phone. Besides, he wrote him a letter. b) He is stupid. What is more, he is ugly. (A negative thought is added to another negative thought.)

First, next, then, and finally; meanwhile (describing simultaneous occurrences);

Arranges ideas in order.

a) First, he introduced himself to her; next, he dated her; then, he

later; since then

proposed to her; and finally, he married her. b) Carlos robbed the store. Meanwhile, Jose stood outside as lookout. c) He sued her. Later, he agreed to settle with her. d) He won a million pesos. Since then he has not stopped spending the money.

Nearby, above, below, beyond, to the right, to the left

Arranges ideas in space.

The victim was sleeping in his room. Nearby, the accused was stealing his things.

But, still,

Connects two

a) Juliet said

however, on the other hand, yet, nevertheless, and rather

contrasting ideas. They could, as a rule, be used interchangeably but each seems to fit best in certain combinations of contrasting ideas.

that she cried for help. But Mario testified that he did not hear her cries. b) The plaintiff claims that the debtor had not paid him. On the other hand, the debtor claims that he had paid the plaintiff. c) He was poor yet generous. d) He did not love her. Rather, he lusted after her.

In fact, as a matter of fact, indeed

Connects the first idea with a second one that points it up; the second idea affirms or supports the

Alibi is a weak defense. In fact, it crumbles in the face of a positive identification.

validity of the first idea. For example, for instance

Adds an illustration to an idea.

The freedom of speech is not absolute. For example, you cannot walk into a crowded theater and shout “Fire! Fire!”

In other words

Adds an explanation to an idea or ideas

Mark longs to see her always, listen to her voice, and touch her. In other words, he loves her.

Therefore, so, hence, consequently, and accordingly

Connects an idea with another that follows from it.

The accused acted in selfdefense. Therefore, he is not guilty.

Of course, to be sure

Grants an exception or limitation to an

All men are created equal. Of

In short, to sum up, and in brief

idea.

course, some men are more intelligent than others.

Summarize several ideas.

He lost his job, he sold all he had to pay his debts, and he still owed more. In short, he was bankrupt.

The beauty of using connectives to put together two or more ideas in legal writing is that they also serve as tools for developing logical reasoning. You are able to test the relation between ideas by trying one connective in place of another. Do not think, however, that connectives are the only devices you can use for joining ideas. You can join two sentences together simply by putting into the second sentence a word that points to a word you used in the first. These are called word bridges. For example: If the purpose of reorganization is to be achieved, changes in the rankings of the employees should be expected. For one to insist on having his old rank would render the exercise useless. In a case, the law in question was the provision of the Civil Code that provides that attorney’s fees “cannot be recovered” except under

certain circumstances. Thus: Art. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim; (6) In action for legal support; (7) In actions for the recovery of wages of household helpers, laborers, and skilled workers; (8) In actions for indemnity under workmen’s compensation and employer’s liability laws; (9) In a separate civil action to recover civil liability arising from crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered. Counsel for the plaintiff offered the following argument that

challenged the award of attorney’s fees against his client. Counsel did not use the appropriate connectives. Non-recovery is the general rule. Ramos has the burden of proving that his claim for attorney’s fees against Acme Company falls within the exceptions. The trial court had to make a finding that the exception he claims in fact exists. Here, the trial court has made no finding that Ramos’ case falls within the exceptions. The trial court awarded him exemplary damages. It might also award him attorney’s fees. The trial court did not find any factual basis for awarding exemplary damages. Its award of attorney’s fees is just as baseless. As the decision of the trial court shows, Acme Company acted in good faith in filing the suit against Ramos for the purpose of quieting its title to the subject land. Acme Company obtained judgment against the former owner of the land. It levied on the property in due course. It bought the same at public auction. Ramos questioned the execution proceedings. The Court of Appeals upheld them. It affirmed Acme Company’s right to place the title to the land in its name. Could you see the connections between the sentences or the ideas? Compare the same argument, this time with the proper connectives. See if the argument has become clearer. Since non-recovery is the general rule, then Ramos has the burden of proving that his claim for attorney’s fees against Acme Company falls within the exceptions.

Further, the trial court has to make a finding that the exception he claims in fact exists. Here, the trial court has made no finding that Ramos’ case falls within the exceptions. True, the trial court awarded him exemplary damages and, therefore, it might also award him attorney’s fees. But, since the trial court did not find any factual basis for awarding exemplary damages, then its award of attorney’s fees is just as baseless. Moreover, as the decision of the trial court shows, Acme Company acted in good faith in filing the suit against Ramos for the purpose of quieting its title to the subject land. First, Acme Company obtained judgment against the former owner of the land; second, it levied on the property in due course; and third, it bought the same at public auction. Ramos questioned the execution proceedings but the Court of Appeals upheld them and affirmed Acme Company’s right to place the title to the land in its name.

Abstract versus Concrete Writing Excessive use of big, general words like equality, justice, grave abuse of discretion, executory, commenced, or jurisdiction can result in abstractionism. Using these words often tempts you into believing that you have said something profound when you may have actually said almost nothing––at least nothing that a reader can really understand and use in his life. An abstraction is any word that applies to a large class of things rather than to any single, concrete object or idea. Every word is in some measure an abstraction, but some abstractions are more general than others. Too many abstract words make for vagueness, even

meaninglessness. Good writing is specific; it makes things real. The opposite of abstract is concrete. Concrete words are words that stand for real things, things that appeal in one way or another to the senses. “Structure,” for example, is more general than “house,” “house” is more general than “shed,” and “shed” is more general than “a dilapidated little shack with makeshift walls and a cardboard roof.” Stick to concrete words as much as possible. The secret is that, if you are writing an essay on an abstract subject, pin it down quickly with specific examples that illustrate exactly what you mean. To illustrate: Although no formal agreement is necessary to establish conspiracy and said conspiracy may be inferred from the circumstances attending the commission of the crime, yet conspiracy like any other ingredient of the offense must be established by clear and convincing evidence. There must be evidence of intentional participation in the transaction with a view to the furtherance of the common design and purpose. (People v. Agda, 111 SCRA 330.) The reader would probably be able to understand better the abstract principle stated above if it could be translated into an actual example. Thus–– True, in conspiracy the prosecutor does not have to present proof that the conspirators held a conference, sat around the table, agreed on their evil plot to commit the crime, and sealed their agreement with a written contract. Still, the prosecutor must show concert of action among them. Evidence that a group of armed men

barged into a bank at the waive of their leader’s hand, with some staying outside as lookouts, with others emptying the tellers cash boxes, and with all departing in deliberate haste at a command, clearly shows their concerted action and unity of purpose, the ingredients of conspiracy. Consider the following legal opinion. In the 70s, the government did not only take taxes from imported cargoes, it also undertook the handling and delivery of these cargoes from the hold of the ship to the importer’s truck. The government collected substantial fees for this extra service. But it refused to answer for losses that importers incurred due to thieveries and neglect of government workers. In rejecting the claims of importers for damages, one opinion said: That there are practical, as distinguished from merely logical, reasons in support of such a view should be apparent from the recognition of the likelihood that the government would ever so often be hailed into court considering that engaged as it has lately been in varied activities appropriate to a welfare state the probability of private parties being adversely affected by action taken by it is not remote. A loss of property right could always be plausibly alleged. A claim for money could easily by conjured. Thus, the demands on the government’s time and energy could reach limits well-nigh intolerable. After all it is an admitted fact that our people display no hesitancy in going to court whenever they feel aggrieved, even if the injury is more fancied than real. Thus, the functional or sociological approach to law would seem to call for a similar conclusion.

Actually, the gist of the argument is that if the government must answer all lawsuits that could possibly be brought against it and pay damages, the government would have no time and resources left to attend to its important functions. But, since the argument was written in the abstract, the ordinary men who are affected by the resolution of the issue involved would have no hope of truly understanding the reasons given to support the argument. Rewritten for the ordinary reader, it might read: Practical reasons support the rule that the state or the government cannot be sued without its consent. For, if the government can be sued and required to pay damages for all the wrongs it has done, the queue to the court would indeed be long. The government would be facing suits for profits that businessmen lost because of mismanaged traffic, for deaths or sicknesses caused by uncollected garbage, for cars wrecked by roads left in disrepair, or for compensation to those who failed to land jobs due to worthless training in public schools. The lawsuits would be infinite. For everyone has a reason to complain against the government. If the state must face all sorts of suits and pay damages, most government officials would be tied up in court appearances and unable to do their work. What is more, awards of damages would soon empty the public treasury. When these happen, the traffic would get worse, the uncollected garbage would mount, the roads would be impassable, and public schools would close down. The people who sued the state would have killed it.

Substitute Names

Identifying the parties based on their positions in the case, such as “the complainant” and “the accused,” “the plaintiff” and “the defendant,” “the petitioner” and “the respondent,” “the appellant” and “the appellee,” or “the protestant” and “the protestee” often results in confusion and the need to return to the statement of the case to be reminded on who is who. Unfortunately, most readers get lost in or are confused by the use of these descriptions in lengthy articles. The parties have names like Theresa Luna, Lino Gonzalez, San Miguel Corporation (SMC), or Philippine Airlines (PAL). It would be better to use these names throughout your discussions especially when the case reaches a higher court and the parties begin to assume cumbersome and confusing descriptions like “the plaintiff-appellant,” “the defendant-appellee,” “the defendant-petitioner,” or “the plaintiffrespondent.” Some lawyers still draft contracts that refer to people as “the party of the first part” and “the party of the second part.” Modern legal writers have long abandoned these substitute names.

Headings If a legal paper is short, may be two or three pages, headings that divide the discussions into subject matters might not be necessary. But, when the paper is long and abound in a variety of topics, it would help to use headings. Headings help readers detect the turns that discussions make as they shift from one topic to another. Headings are of two kinds: (1) general; and (2) specific. 1. General headings provide some kind of signposts that point out to the reader the grounds he is about to cover in his reading. Examples of these are the “Statement of the Case,” “Statement of the Facts,” “Subject Matter of the Case,” “Issues Presented,” “Assignment of Errors,” “Conclusion,” and “Relief.” General headings are essential to trial memoranda, briefs on appeal, and petitions for review. In fact, procedural rules require the use of

some of these headings. And even when not so required, they are as essential to legal writings as floor numbers are on elevators. General headings help you get quickly to the portion of a substantial legal work that you want to read or go back to. 2. Specific headings, on the other hand, are like newspaper headlines. They attempt to capture in a few words the essence of a particular argument or discussion. This kind of heading is especially helpful in marking out the beginning of every new topic in a row of topics. For example, a discussion that argues the point that the prosecution has failed to prove damage in an estafa case, the writer could place the following heading at the middle of the page, properly underlined or put in bold type: 1. The Element of Damage Most lawyers, however, prefer to use specific headings that also sum up the point made in each argument. Thus: I. THE BANK SUFFERS NO DAMAGE FROM ITS TRANSACTION WITH THE ACCUSED Note that, as a rule, subheadings are in the present tense and are not punctuated with a period.

Writing Exercises Make the following abstract legal points concrete, with the end in view of convincing your reader regarding their correctness: 1. Police power rests upon public necessity and upon the right of the state and of the public to self-protection. For this reason, its scope expands and contracts with changing needs.

2. Emotional immaturity and irresponsibility cannot be equated with psychological incapacity. 3. Unlawful aggression does not exist where the peril to one’s life, limb, or right is neither actual nor imminent.

12. Writing Legalese Another reason why ordinary people find it hard to understand legal writing is the tendency of many lawyers to use peculiarly legalese language. But some will say that lawyers have a language all their own and a peculiar way of putting their thoughts into writing. They argue that injecting legal jargons is the traditional way of writing and any other method would violate tradition and diminish the awe and mystery to which lawyers are entitled. Your belief is of course entitled to respect. But the changing world and the demand to be understood have begun to challenge the validity of this belief. Legal clichés belong to a bygone era. Modern legal writing demands simplicity, clarity, and accuracy. As someone said, the law is a “device for social control.” The government enacts laws to govern human conduct. Laws forbid people from doing evil things or from hurting others. They also require people to do things that are needed for the good of all in the community. Since effective obedience to laws requires an understanding of them, laws should be written in plain and ordinary English or Filipino that the average layman could understand.

Legal Clichés Admittedly, some lawyers are notorious for copying words or phrases, usually found in old case reports or law books, which they deem profound or which give a sense of importance to what they write.

They probably believe that their individual style of writing would somehow gain added substance and strength using those borrowed words and phrases. But, in truth, these legal clichés have become hackneyed and weak through much repetition. Worse, to non-lawyers, they sound so unnatural and pretentious, if not arrogant. Ask yourself the question. Would you use this kind of language when writing to your mother or to your friends? If you would not, why use them in your pleadings? The judges and your clients to whom you usually address yourself are your elders or friends. Take these examples: Petitioner respectfully submits that respondent court gravely abused its discretion. (Since petitioner filed the pleading, it would be superfluous for him to identify himself as the party making the submission; “respectfully” is a good word but when it is thrown in as a matter of form, the sincerity is gone.)

Respondent court gravely abused its discretion. (6 as against 10 words)

Even a cursory perusal of Section 21 will readily reveal (this might sound like, “If you have the brains, the meaning of the law should be clear to you after a casual reading”) that nothing therein was mentioned or impliedly stated about the authority of respondent court to issue a writ of execution in cases covered by the said rule.

Section 21 did not authorize respondent court to issue a writ of execution in cases covered by it. (18 against 37)

Lest it be forgotten, (this might sound like, “You are forgetful, so hear this”) the law is supreme.

The law is supreme. (4 against 8)

We humbly submit (this might seem to others like a declaration of your innate humility) that the answer to the foregoing query is a resounding no (if you want your no answer to resound, use exclamation points.)

The answer is no!! (4 against 13)

Suffice it to state (this might sound like, “With your level of intelligence, it would be definitely useless to say more”) that plaintiff was in estoppels.

Plaintiff was in estoppels. (4 against 9)

The argument is untenable (but probably better than declaring the argument untenable is proving it). It fails to take into account the fact that the accused did not see the oncoming truck.

The argument fails to consider that the accused did not see the oncoming truck. (14 against 21)

Petitioner’s argument is bereft of merit (if it really lacks merit, it would probably be better to prove it rather than

Petitioner’s argument ignores the

declare it). It ignores the law.

law. (5 against 10)

Preambles like the above legal clichés get in the way and do not add to the meaning of the main message of the sentence. Still, if your purpose is to write something about what you did in the case or pass judgment upon the other person’s point of view rather than just show how his view lacks merit, it is your choice. There was no denial of the acts of intercourse having taken place, but the accused would insist that complainant did so willingly the explanation, according to him, being that she was his sweetheart.

Although he admitted the sexual intercourse, Ignacio would insist that Ruby freely agreed to it, she being his sweetheart. (19 against 33)

Old English Many prefer, despite the language revolution that drives a changing world, to stick to old English usages. That is to be respected. But if you are the kind that would want to address young readers as well, you might consider the following suggestions: In the case at bar, the court declined to apply the rule.

Here, the court declined to apply the rule.

The facts in the instant

The facts are not

case (this phrase is superfluous if you are discussing no other case) are not disputed.

disputed.

The parties in the case at bench (same effect as “instant” case) have agreed to arbitration.

The parties have agreed to arbitration.

The requirements are, to wit:

The requirements are as follows:

He left for Manila. Arriving thereat, he phoned his dad.

He left for Manila. Arriving there, he phoned his dad.

He wrote her a letter, a copy of which is attached hereto as Annex A.

He wrote her a letter, copy enclosed as Annex A.

Upon receipt of the aforesaid decision, petitioner filed his notice of appeal.

Upon receipt of the decision, petitioner filed his notice of appeal.

When the witness saw the ceiling on fire, he was alarmed thereby.

When the witness saw the ceiling on fire, he was alarmed by it (or “it

But the door lock had jammed so by reason thereof, he left through the window.

alarmed him”). But the door lock had jammed so he left through the window.

He approached the room and looked therein.

He approached the room and looked in it.

As the crowd marched, he went therewith.

As the crowd marched, he went with it.

He brought a chair and sat thereon.

He brought a chair and sat on it.

The accused stopped the tricycle and alighted therefrom. He forthwith dragged her to the tricycle.

The accused stopped the tricycle and alighted from it. He then dragged her to the tricycle.

The case against petitioner herein was set for hearing.

The case against petitioner was set for hearing.

The said motion was opposed by the prosecution.

The prosecution opposed the motion. (Quite often, you can do without the word “said” especially when the article speaks of only one motion.)

The trial was postponed to enable the accused therein to prepare his defense.

The trial was postponed to enable the accused to prepare his defense.

Comes now petitioner, through the undersigned counsel, unto this Honorable Court, most respectfully states:

Petitioner, by counsel, states:

Sounding Formal Legal writing should not be made up exclusively of big, formal words dressed in tuxedos. The standard for all effective writing is being understood. Some lawyers, in the mistaken belief that they will sound more dignified, insist on using polysyllabic words like “accompanied” instead of “went with,” “informed” instead of “told.” Quite often, however, they merely succeed in sounding like stuffed shirts. The accused was in possession of a gun.

Blando had a gun.

Appellant posits that he has the right.

Appellant assumes that he has the right.

Mario Reyes commenced a

Mario Reyes filed an

complaint for ejectment against Josephine Cruz.

eviction suit against Josephine Cruz. (9 against 10)

The finding of the court is based on the factual milieu presented by appellant.

The court’s finding rests on appellant’s version of the facts.

Petitioner’s contentions are nebulous if not speculative.

Petitioner’s claims are vague if not speculative.

Laura stated that the accused detained her. Al contrario, the accused declared that she came voluntarily.

Laura said that the accused detained her. On the other hand, the accused claimed that she came voluntarily.

Albeit incidental, his traversal of plaintiff’s statement is portentous.

Though incidental, his rejection of plaintiff’s claim is ominous.

The duty of the court is to adjudicate the contentious positions of the parties.

The court’s duty is to decide the conflicting claims of the parties.

Any pronouncement of the court will only be advisory.

Anything the court says will only be

advisory. It would then result that on the basis of the foregoing disquisition, an amendment of the criminal information cannot be allowed.

Based on the above discussion, an amendment of the criminal information cannot be allowed.

He denied detaining Laura, contrary to her asseverations in her testimony.

He denied detaining Laura, contrary to her positive testimony.

This is indubitable proof of Soberano’s criminal intent.

This is unquestionable proof of Soberano’s criminal intent.

He prevented her from communicating with anyone.

He prevented her from talking with anyone.

Objectively and subjectively considered, the circumstances point towards appellant’s innocence and are incompatible with attributions of guilt.

However viewed, the circumstances point to appellant’s innocence and do not support the charges.

In the light of the foregoing

Because of the

circumstances, it was improvident for the court a quo to conclude that appellant detained the complainant.

circumstances, the court below recklessly concluded that appellant detained the complainant.

The serious illegal detention theory appears to be an impulsion upon complainant and her relatives who, frantic about the ardor of appellant in his romance with complainant wanted to keep appellant away from her because she apparently no longer reciprocated his love with the same degree of passion.

Charging Joel with serious illegal detention seems to be a thought born of the worries that Melba and her relatives had over his intense love for her. They wanted to separate them since she did not seem to have deep feelings for him anymore.

The police accompanied the accused to the courtroom.

The police went with the accused to the courtroom.

The court informed the accused of his rights.

The court told the accused of his rights.

He appeared to be guilty.

He seemed guilty.

He consumed his lunch.

He ate his lunch.

He desired a lawyer of his own.

He wanted a lawyer of his own.

The sheriff implemented the court order.

The sheriff carried out the court order.

The individual has been arrested.

He has been arrested.

He likes the manner in which it was done.

He likes the way in which it was done.

As a rule, when you can choose between an easy, familiar expression and one that seems more “dignified,” the easier word is the better choice if it means exactly the same thing. You may of course use the more formal word without any adverse effect. But you need to guard against the temptation of trying to sound dignified. Your writing will have natural dignity if it is serious and thoughtful. It is when you try to doctor it up with high-flown, stately-sounding, polysyllabic substitutes for direct and simple words that you begin to sound pompous.

Cheap Words But this does not mean that you should always use short or familiar words. Some words are so familiar that they have become the equivalent of a large number of other words. They have ceased to have any specific meaning. Examples of these are descriptive words like good, nice, pretty, ugly, bad, awful, big, little, fast, slow, funny, crazy, great, and fine. They are used everyday to describe anything that sounds positive or negative. This steak is good (tasty, tender, fresh, etc.). The movie is good (entertaining, amusing, well priced, ably

directed, etc.) Check the thesaurus until you find a more precise meaning for your particular purpose. For example, the word “crazy” has different shades: insane, mad, lunatic, unbalanced, psychopathic, cracked, non compos mentis, touched, bereft of reason, moonstruck, scatterbrained, maniacal, delirious, irrational, lightheaded, incoherent, rambling, doting, wandering, amuck, frantic, raving, pixilated, eccentric, demented, deranged, schizophrenic. Do not dwell in the slum of cheap language when the thesaurus offers you riches that you can use.

Self-praise Many judges and lawyers tend to add remarks in their decisions or pleadings about how diligently they have worked on their cases. These remarks are common and often well intended but, to non-lawyers, they sound like self-praise. In these modern days, judges and lawyers might want to consider editing out such remarks since they divert attention from the main message of the sentence. For example: A meticulous scrutiny of the evidence of record [it is like saying, “take note that I am meticulous in my work”] shows that defendant offered convincing proof of his claim.

The record shows that defendant offered convincing proof of his claim. (11 as against 17 words)

In our considered opinion [“you must know that we carefully weighed everything before forming this

The defendant acted in bad

opinion”], the defendant acted in bad faith.

faith. (6 against 10)

After we have thoroughly and conscientiously gone over the record of the case (“yes, we want you to know that we worked very, very hard on this one”), we are sufficiently satisfied (but if one is satisfied, it cannot be less than sufficiently) that the observations and conclusions contained in the foregoing memoranda are fully substantiated and supported (the point is somewhat overstated) by the evidence on record.

The record satisfactorily shows that the evidence substantiates the observations and conclusions in the memoranda. (17 against 37)

A careful scrutiny (“yes, we carefully scrutinize everything in the case”) of the testimonies coming from the complainant and the accused fails to yield to the conclusion that a finding of his guilt is warranted.

The testimonies of Ruby and Ignacio do not show the latter’s guilt. (12 against 27)

The Court had thoroughly delved into the records of the instant case and painstakingly assayed the evidence adduced by the parties. We find the evidence of the prosecution grossly insufficient to sustain a conviction.

No amount of examination of the prosecution’s evidence could justify

a finding of guilt of the accused. (17 against 34)

Sentence-length Variety Try to listen to people speak and you will observe that their sentences vary in length. Even before you learned how to write, you knew language as you hear it spoken by others. And, though you could read and write sentences later in years, your everyday conversations have remained largely verbal. In other words, your inner ear is tuned to verbal sentences of various lengths. Take for example these words from a father whose son wanted to go out with his friend on a Friday evening: I’ll let you go out but be here by twelve o’clock midnight at the latest. And when I say twelve o’clock midnight, I don’t mean that you can come home at twelve-thirty in the morning or twelve-fifteen or twelvefive. I mean twelve midnight. Believe me because I warn you that you will not be able to go out with your friends again if you come home any later than twelve. Mark my word. Do you see how the lengths of the sentences vary from medium to long, to short, to long, and to short? I’ll let you go out but be here by twelve o’clock

midnight at the latest. (16 words) And when I say twelve o’clock midnight, I don’t mean that you can come home at twelve-thirty in the morning or twelve-fifteen or twelve-five. (25) I mean twelve midnight. (4) Believe me because I warn you that you will not be able to go out with your friends again if you come home any later than twelve. (27) Mark my word. (3) Writing is, in the final analysis, a form of talk––preserved talk. Consequently, when you write sentences at more or less uniform lengths, you strain the inner ear. You write unnaturally. When you find pleadings of lawyers or decisions of courts boring or strenuous reading, it is your inner ear refusing to take what you read. For example, the oppositor of a petition for the appointment of a guardian for three minors offered the following arguments to defeat the petition: Romina is not qualified to be appointed guardian of the orphaned minors and administrator of their cash savings and properties. She treated the large amounts of cash that she received on behalf of the minors like they were her own. Although she is an accounting major graduate, she did not segregate the cash she got by depositing these in a bank in trust for them, something that parents do for their children’s savings. Had she done this, she would have an unquestionable record of the money she received on their behalf and the money she withdrew for expenses. Ironically, she claims that she

has much experience in handling money for other people since she once worked for a bank. What is more, Romina was aware that the resources of the deceased parents of the kids show no potential for growth and that the cash they have in the bank could just run out. Yet, she has not presented any plan to the Court for seeing the kids through college with what resources they have left. Instead, she squandered their money on unbelievable expenses, given that in just seven months, she spent P1.2 million in household expenses for them. This means that for two kids in elementary and one in high school, she spent an average of P158,000.00 monthly for them. The above is of course faultless in grammar and clarity. Anyone who prefers to write in this way would not make any mistake. It is a correct way of writing. But to ordinary readers, the sentences are invariably long and, therefore, seem unnatural for easy storytelling. If you want your writing to be easier on the inner ear and interesting, the important principle to remember is to capture in writing the basic rhythm of speech. Vary your sentence length. Sense the change in this suggested re-writing to vary the sentence length: Romina is not qualified to be appointed administrator of the cash and other properties of the orphaned minors since she treated these as if they were her own. For one thing, she is an accounting major. Yet, she did not segregate the amounts she received by depositing these in a bank in trust for the minors, something that parents do all the time for their children’s savings. Clearly, she is irresponsible. Had she opened those accounts for them, she would have an unquestionable record of the money

she received on their behalf and the money she withdrew for expenses. Ironically, she used to work for a bank. The experience apparently did not profit her, given the manner she treated the money belonging to the minors. What is more, Romina knew that the resources of the deceased parents of the kids show no potential for future growth. The cash in the bank is exhaustible. Yet, she has not presented any plan to the Court for seeing the kids through college with what resources they have left. In truth, she squandered their money. They were just two kids in elementary school and one in high school but in just seven months, she spent P1.2 million for them in household expenses, an average of P158,000.00 monthly. Would you believe it?

Writing Exercises The following has been lifted from a Supreme Court decision but the names of the persons and places involved have been changed to protect the real parties. Some portions have been deleted to shorten it for this editing exercise. The decision, as written, is logical and grammatically correct. It follows a certain style, however, that would be difficult, except for the most discerning, to understand on first reading. The author favors long, complex periodic sentences where the main noun meets its verb after a number of intervening digressions. And he does not treat the events in the ordinary sequence. The challenge is to rewrite it, using the editing techniques you have learned above, and make it clear and appealing to the ordinary reader. Fate apparently dealt a low blow to the Romero family when on the evening of November 30, 1970, the daughter,

Rita, not even fifteen then, alone in the rented room in a house at Aliw Beach, Zamboanga City, where she was living with her mother, who was then away for the night, was, according to her complaint for rape, compelled to submit twice because of force to the sexual advances of the accused Hector Galos, also a boarder in the same house. There was no denial of the acts of intercourse having taken place, but the accused would insist that complainant did so willingly, the explanation, according to him, being that she was his sweetheart. He would stress likewise his continued presence in the room until the dawn of the next day and the absence of any outcry on her part, which could have been heard by those staying in the adjoining rooms. His testimony as to the absence of force being employed was corroborated by another boarder, who occupied the adjacent room, and the owner of the house itself. The lower court preferred to believe the girl’s version and sentenced him to reclusion perpetua. The severity of the penalty inflicted under the circumstances where, as is not unusual in rape cases, there is a conflict of testimony as to what actually did transpire, led us to peruse with greater care the records of the proceeding. x x x As will be more fully explained, a careful scrutiny of testimony coming from the complainant and the accused fails to yield the conclusion that a finding of guilt is warranted. We have to reverse. The disparity in the versions offered by the contending parties cannot obscure certain indubitable facts. The accused did not by the use of force or deceit gain entrance into the rented room where the sordid incident took place. There was no denial of the version by him and his two witnesses that earlier in the evening the

complainant was with a group, included in which was the accused, engaged in drinking and light banter. It could very well be that the euphoric feeling induced by this young girl’s imbibing the tuba wine led to the relaxation of what could be inhibiting factors. Once inside the room, and with the accused apparently being a suitor whose advances had not been spurned, to put it at its mildest, it was not expected that sexual intimacies would take place. It could very well be that the young lady did not initially agree to indulge in an act of intercourse. Under the circumstances, however, with coaxing and cajoling on the part of the accused, there was nothing unlikely in the stage of sexual congress being reached. What is more, it happened twice. There could have been a third time, except that it was foiled because the chair on which it was attempted gave way due to the combined weight of the participants. The man had no weapon with which to intimidate the complainant. There were no intimations that there was opposition on her part. She did not yell or scream. The two witnesses on either side of the room, separated only by a thin plywood partition, certainly would have been aware of any breathing. That certainly was not indicative of rape. Moreover, to repeat, the accused stayed until dawn. Even early the next morning, they were seen together. x x x Hence acquittal ought to have been the proper verdict. 1. The accused has in his favor the presumption of innocence. That is a mandate of the fundamental law. It may be noted that even when the previous Organic Act did not so provide, a defendant according to the early case of U.S. v. Asiao, decided in 1902, with Justice Torres as ponente, “must be presumed to be innocent until [his]

guilt is proven by satisfactory testimony. … The burden of proof is thus on the prosecution to demonstrate guilt. Every vestige of doubt having a rational basis must be removed. More specifically, where the offense charged is rape through force, there must be a showing of compulsion being resorted to and coercion being employed. The element of voluntariness must be lacking. x x x 2. The opinion of the Court is not to be misinterpreted. It goes no further than to acknowledge that the proof submitted on behalf of complainant did not measure up to the exacting standard required in cases of this nature. In the light of the applicable constitutional provision and the authoritative precedents requiring full respect for the constitutional rights of an accused, a reversal is called for. x x x WHEREFORE, the decision of the lower court is set aside and the accused is acquitted of rape.

13. Writing Legal Opinions Every so often, a client would seek your legal opinion on some matter of concern to him. Before rushing into an opinion, however, you would do well to keep the following in mind: One. Ascertain the purpose for which your client seeks your opinion. Does he merely want to know his rights? Does he need to show your opinion to others? Does he have to make an important decision that could have deep repercussions for him and others? Is he facing a potential lawsuit? Your client is not a lawyer and, unless you go deep into his reason for seeking your opinion or try to understand his real problem, he could be posing the wrong questions to you. And, consequently, you could be giving him the wrong answers. In a case, a client asked her lawyer his opinion regarding what constituted psychological incapacity for marriage. After her lawyer told her, she preoccupied herself with establishing evidence that her husband was psychologically incapacitated for marriage to the point that she strained to fit the facts of her case into what the law required. She gave this evidence to his lawyer. But the Court was unconvinced and did not grant annulment. Yet, as it turned out, the couple was in the first place married without a proper marriage license. Not being at fault, she was entitled to annulment on this ground but she had to go through so much expense and hardships in establishing a weak case based on another ground because, before responding to her query, her lawyer did not bother to find out what she needed his opinion for.

Do not settle, therefore, for a hypothetical question. Try to get your client’s trust. If you cannot, it might be preferable that you refrain from giving her an opinion or that you make it doubly clear to her that the opinion you give might be the wrong one for her. In this way, you avoid taking the blame for any mishap. Second. Do pre-work. Get all the facts you need for forming a competent opinion. A wrong factual premise will naturally produce a wrong legal diagnosis. Go over the materials you got from your client, ascertain the legal dispute involved, and put down in writing the principal issue that it produces. Next, make a summary of the relevant facts of the case and put them in correct sequence. Identify the issues that have to be resolved and rough out the arguments that support your thesis. Third. After pre-work, do the write-up, following what you learned earlier in this book. Introduce the issues by providing the background facts that are needed to understand those issues. You prevent a misunderstanding with your client when you summarize for him the facts on which you rely in rendering your opinion.

Illustrative Case: Chan v. Century Bank Below is a sample legal opinion. Like similar examples in this book, do not consider it a prescribed form. Forms are hardly important. It is substance that matters although, in legal writing, substance must meet certain minimum requirements of content. These are: a) background facts that adequately introduce the issues in the case, b) a statement of what those issues are, c) the position you take on those issues, d) the arguments that may be made against you, e) the arguments in your favor, and f) what you want your reader to do under the circumstances. Format and style are up to you. September 14, 2013

Mr. Rogelio G. Chan Milan Furniture Co., Inc. 245 Juan Luna Street Binondo, Manila Dear Mr. Chan: Here is the opinion that you requested. The facts, as I gather from you and your documents, are as follows: On May 12, 2012 you applied with the Century Bank in Binondo, Manila, on behalf of Milan Furniture Co., Inc., for a letter of credit, Annex A, covering its importation of hardwood from Vietnam. On arrival of the goods, the bank agreed to advance the payment of their price to your supplier. In turn, you executed a promissory note in the name of Milan Furniture, Annex B, undertaking to pay back the bank’s advance within three months of the date of the note. You also signed a trust receipt, Annex C, covering receipt of the goods. The trust receipt provided that, in case of the sale of the imported hardwood, Milan Furniture would turn over the proceeds of that sale to the bank to apply to your loan. Because Milan Furniture had been unable to pay its promissory note to the bank when it fell due, on October 17, 2012 the lawyers of the bank sent you a demand letter, Annex D, requesting full payment of the debt or return of the goods. I understand that, on receipt of the letter, you tried to negotiate with the manager of the bank, offering to return the imported hardwood that you were yet unable to sell or use. But the bank manager rejected your offer, stating that the bank did not accept goods in payment of

debts owed it. Since further negotiations also failed, the bank sent you a final demand for payment on December 4 under a threat of filing a criminal complaint for estafa involving the trust receipt that you executed in its favor. The question you pose is whether or not, under the above facts, you may be held liable for estafa under PD 115, the Trust Receipt Law, in relation to Section 1(b) of Article 315 of the Revised Penal Code. In my opinion, since the bank opted not to accept the goods even when you offered to return them on behalf of Milan Furniture, it should be deemed to have withdrawn its earlier demand from you to pay or “return the goods covered by said Trust Receipt.” Effectively, the bank chose to consider Milan Furniture to have already bought those goods, altogether removing the transaction from the coverage of Section 13 of the Trust Receipt Law. I base my opinion on the following: The relevant provision of the Trust Receipt Law or PD 115 provides: SEC. 13. Penalty Clause. — The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three Hundred and Fifteen, Paragraph One (b), of Act

Numbered Three Thousand Eight Hundred and Fifteen, as amended, otherwise known as the Revised Penal Code. x x x The related provisions of Section 1(b), Article 315 of the Revised Penal Code, under which the violation is made to fall, states: ART. 315. Swindling (estafa). –– Any person who shall defraud another by any of the means mentioned herein below x x x: 1. With unfaithfulness or abuse of confidence, namely: x x x

x x x

x x x

b. By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.” From the above, the following are the elements of estafa involving a trust receipt: 1. The entrustee received the goods under a trust receipt from the entruster under an obligation to turn over the proceeds of the sale of the goods or to return said goods;

2. The entrustee misappropriated or converted the goods by failing to turn over the proceeds of their sale or to return said goods to the entruster; 3. The misappropriation or conversion is to the prejudice of the entruster; and 4. The entruster made a demand on the entrustee. One of the elements of estafa involving a trust receipt is that the entrustee [in this case, you or Milan Furniture] received the goods under a trust receipt from the entruster [in this case, Century Bank] under an obligation to turn over the proceeds of the sale of the goods or to return said goods. The Trust Receipt Law, PD 115, provides in Section 11 that the liability for estafa under paragraph 1(b) of Article 315 of the Penal Code arises in case of “the failure of an entrustee to turn over the proceeds of the sale of the goods … or to return said goods.” The trust receipt in this case, Annex A, echoes the above provisions of the Trust Receipt Law. Under it, Milan Furniture or you as its signatory, undertook “to turn over to the BANK the proceeds” of the sale of the goods1 or, “in case of non-sale,” to “return the goods covered by this Trust Receipt to the BANK upon its demand.”2 But the terms of the trust receipt does not end there. The trust receipt, Annex A, gives Century Bank an option not “to accept the return of the goods.” In effect, Century Bank could chose to regard such goods already sold to Milan Furniture even though the latter could and wanted to return them. The seventh paragraph of the

Trust Receipt, Annex A, thus reads: We agree that the BANK is not obliged to accept any return of the goods under this Trust Receipt by us or to consider any return thereof if accepted or demanded by the BANK, as satisfaction of our indebtedness to the BANK. Century Bank in fact availed itself of the above option. It opted not to accept the goods even when you offered to return them. Consequently, Century Bank should be deemed to have withdrawn its earlier demand that you or Milan Furniture pay or “return the goods covered by said Trust Receipt immediately.” Effectively, Century Bank chose by its action to consider the subject goods sold to Milan Furniture, altogether removing the transaction from the coverage of Section 13 of the Trust Receipt Law. The essence of the crime of conversion or misappropriation is that the offender to whom money or goods has been entrusted has unfaithfully or with abuse of confidence failed to return what was merely entrusted to him and appropriated it for his own. Here, neither Milan Furniture nor you could be considered as having unfaithfully or with abuse of confidence misappropriated and converted the goods subject of the trust receipt. Century Bank did not want those goods back. It had regarded them sold outright to Milan Furniture. The latter’s liability for the goods should, therefore, be considered purely civil. Moreover, Section 13 of the Trust Receipt Law provides that the “failure of an entrustee to turn over the proceeds of the sale of the goods … or to return said

goods … if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa.” The essence of the penal provision of the law, therefore, is that the entruster [here, Century Bank] has entrusted the good to the entrustee [Milan Furniture or you] for him to sell. Once sold, the entrustee was to turn over the proceeds of the sale to the entruster. Section 13 does not embrace instances where the goods are turned over by the entrustor to the entrustee for the latter’s use in his own business. This is clear from the ruling of the Supreme Court in Colinares v. Court of Appeals3 that reads: Also noteworthy is the fact that Petitioners are not importers acquiring the goods for re-sale, contrary to the express provision embodied in the trust receipt. They are contractors who obtained the fungible goods for their construction project. At no time did title over the construction materials pass to the bank, but directly to the Petitioners from CM Builders Centre. This impresses upon the trust receipt in question vagueness and ambiguity, which should not be the basis for criminal prosecution in the event of violation of its provisions.4 In this case, on May 12, 2012 Century Bank agreed with Milan Furniture to open a letter of credit (LC) on the latter’s behalf to cover a shipment of hardwood from Vietnam for use in its manufacture of furniture. Notwithstanding that Milan Furniture imported the hardwood in question so it could use them in

manufacturing furniture, Century Bank made you, a representative of your company, sign a trust receipt that made it appear as if Century Bank had turned over the hardwood to Milan Furniture for it to sell to others and to turn over to the bank the proceeds of the sale. The Supreme Court has long condemned such practice. Thus, it said in the Colinares case: The practice of banks of making borrowers sign trust receipts to facilitate collection of loans and place them under the threats of criminal prosecution should they be unable to pay it may be unjust and inequitable, if not reprehensible. Such agreements are contracts of adhesion which borrowers have no option but to sign lest their loan be disapproved. The resort to this scheme leaves poor and hapless borrowers at the mercy of banks, and is prone to misinterpretation, as had happened in this case. Eventually, PBC showed its true colors and admitted that it was only after collection of the money, as manifested by its Affidavit of Desistance.5 That the transaction was a loan is made clear from paragraph 1 of the agreement for the opening of a letter of credit between Century Bank and MHTI, Annex A. It provides that, in consideration of the opening of the letter of credit on behalf of Milan Furniture in the amount of US$39,060, the latter undertook to pay the bank on demand for all drafts drawn against such letter of credit, with interest at 13% per annum. The title to the goods never really passed to the bank. Century Bank did not import them from Vietnam; it merely opened a

letter of credit for the benefit of Milan Furniture. The supplier shipped the hardwood to Milan Furniture under the cover of that letter of credit. In short, Century Bank merely provided the loan that financed the shipment. Since the transaction was a loan, Milan Furniture’s liability to Century Bank should only be regarded as civil. The criminal action against you must fail. It is but fair and the investigating prosecutor or the court should see the point. A word of reservation: I base my opinion on the language of the laws involved as well as on settled judicial precedents. But, in the event the bank files a criminal complaint against you, there is the chance, however small, that the public prosecutor may just decide to file it in court, subjecting you to the hassle, expense, and risk that criminal trials entail. But I am confident that, ultimately, you will be absolved. Please let me know if I can be of further service to you in this matter. Very truly yours, ANNA ELIZABETH A. DE DIOS There is one last point. Legal opinions have their limitations. You have to realize that not all legal disputes are best resolved through judicial remedies. Litigations are best avoided, if the economics do not make sense, as when your client’s debtor is practically bankrupt. In such a case, your client would merely be throwing away good money,

by incurring expenses for docket fees and attorney’s fees with no hope of recovering anything. Further, a legal confrontation could irreparably damage relationships that may be far more valuable than the benefits derived from a judicial resolution of the dispute. Law is based on wisdom but law is not wisdom.

1Third paragraph, Trust Receipt, Annex B. 2Id., fifth paragraph. 3339 SCRA 609 (2000). 4At p. 623. 5Supra, at pp. 623-624.

14. Writing Trial Memoranda In trials by jury in the United States and other countries that have adopted that system of hearing and deciding cases, trial is usually followed by oral arguments from both sides. Counsel stands before a jury of ordinary men and women, orally sums up his case and tries to persuade them with evidence and arguments to accept his client’s point of view. In the Philippines, only one person—the judge who is trained and experienced in the law—sits to hear the case in its entirety and passes judgment on the dispute. Because cases are tried in installments over a period of time, usually a year or two, counsels often need to argue their cases at the end of trial. They do this by written memoranda. As we said earlier, pre-work is indispensable to a substantial and convincing trial memorandum. It will do well for you, therefore, to go over the pleadings, the transcript of the testimonies of the witnesses, and the documentary exhibits. Working on these materials, identify the legal dispute involved and, based on it, draw up the principal issue in the case. From there, proceed to make an outline of the relevant facts that the opposing parties claim and pinpoint the issues that you need to address. After pre-work, write up your client’s memorandum in the case. Make sure that your memorandum embodies the following indispensable parts: 1. A summary of the nature of the action and the court proceedings

so far had in it; 2. A summary of the facts of the case—the transaction or event that brought about the legal dispute and the lawsuit—as seen from the opposing points of view of the parties; 3. A statement of the relevant issues that the parties present for resolution; and 4. An orderly presentation of the arguments that support your client’s position.

Illustrative Case: Maranan v. Gonzalo Realty In a case, the president of a corporation, acting in his own name, leased one of the properties of his company to a third person at a fixed rent for 25 years. After the president left, the tenant brought a lawsuit to enforce the contract against his company. Following the trial, defendant company filed a memorandum in the case, reproduced below. It shows a species of such pleading. Certain details have been altered to preserve the privacy of the parties involved. Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region Mandaluyong City, Branch 156 RAMON C. MARANAN, Plaintiff, -versus-

SCA No. CV 0341

GONZALO REALTY CORP., Defendant. x--------------------------------------x

DEFENDANT’S MEMORANDUM Defendant, by counsel, respectfully submits its memorandum in the case: The Case Plaintiff Ramon C. Maranan filed this action for declaratory relief and damages against defendant Gonzalo Realty Corporation, claiming that the Court needed to ascertain the rights of the parties under a contract of lease between them before its terms were violated. In its answer, Gonzalo Realty claimed that it did not authorize the contract of lease and that the action was improper for declaratory relief. The parties claimed moral damages and attorney’s fees against each other. The Facts At the trial, Maranan gave his version of the events.

He had been renting the land in question from Gonzalo Realty from April 2002 under a Contract of Lease, Exhibit A (Transcript of Stenographic Notes, August 27, 2012, p. 5). Ted Gonzalo, its president and director, represented Gonzalo Realty in that contract (id., p. 6). The contract was for twenty-five years at P3,000.00 rent per month, which he had always paid. At the beginning Ted or Celia, his secretary, gave Maranan unofficial receipts for the rents but from August 2010 Gonzalo Realty began to give him official receipts (id., p. 13). From September 2011, however, Gonzalo Realty refused to take his monthly rents, insisting that he should increase this to P8,000.00 (id., p. 14). Maranan went to Gonzalo Realty’s office and asked Edmund Gonzalo, its new president, to honor the contract signed by the former president, Ted Gonzalo. But Edmund and her sister, Judith Gonzalo, told him that the contract was void. Maranan had not since seen Ted Gonzalo. These events prompted him to file the present action. A second witness, Fred Simon testified that he had been paying Maranan’s rents to Susan, the secretary of Gonzalo Realty at its office and that, although Edmund knew of such payments, he did not object to them (Exh. H). Judith Gonzalo, a stockholder, a member of the board of directors, and the corporate secretary of Gonzalo Realty (TSN January 30, 2009, pp. 5-6), presented her company’s version. She served as company president from August 2010 to December 2011, succeeding her brother Ted (id., p. 7) who served from 2004 to July 2010. Later, her other brother Edmund took over as president. Gonzalo Realty had been leasing lots and a

building in San Dionisio, Baclaran and Tambo in Parañaque (id., p. 8), including the two small lots subject of this case (id., p. 9). Judith first learned of the lease of the two small lots to Maranan in 2010 when, on becoming Gonzalo Realty’s president, she asked their secretary to instruct all the tenants to pay their rents directly to Gonzalo Realty and no longer to Ted. Beginning in August 2006 Maranan paid his rents to Gonzalo Realty, which issued him official receipts (id., p. 10; Exh. B to B-19). The company did not issue the other receipts that Maranan presented in court (Exh. D to D-34), some of which included official receipts issued by his brother Ted’s company, the TRG Enterprises (id., p. 11). TRG stood for Ted R. Gonzalo. Gonzalo Realty did not authorize Ted to enter into the lease contract, Exh. A, with Maranan (id., p. 12). Judith first saw it only in August or September 2011 while she was making her rounds of their properties. When Judith asked Maranan if they could already increase his rents, the latter produced a lease contract with Ted Gonzalo for twenty-five years at P2,000.00 rent per month with no escalation (id., p. 13). As soon as she saw the contract, Judith wrote Maranan, informing him of its invalidity and demanded an increase in his rent to P8,000.00 per month, subject to a 10% yearly increase (id., p. 14). According to Gonzalo Realty’s by-laws, its president’s powers were purely managerial or administrative (id., p. 14; see Sections 4 and 5). This allowed him to lease corporate properties for not more than one year; for leases over one year, the contracts had to pass Judith and be approved by the board of directors of the company (id., p. 15). In this case, the board learned of Maranan’s

contract with Ted only in August 2011. It neither authorized nor ratified that contract (id., p. 17). To defend itself against the suit, Gonzalo Realty had to hire the services of counsel for P100,000.00 and P3,000.00 for every hearing he attended (id., pp. 17-18). The Issues The Court defined the issues in this case in its pre-trial order as follows: 1. Whether or not the Contract of Lease executed by and between Ted Gonzalo and Ramon Maranan binds Gonzalo Realty; and 2. Whether or not either party is entitled to damages and attorney’s fees. Arguments I. TED GONZALO DID NOT HAVE AUTHORITY TO BIND GONZALO REALTY TO THE LONG-TERM LEASE AGREEMENT THAT HE SIGNED WITH MARANAN Maranan claims that Gonzalo Realty is bound by the contract that he entered into with Ted Gonzalo since, as president of Gonzalo Realty, the latter had the necessary authority to act for it. But the fact that Ted was Gonzalo Realty’s president in 2002 did not mean that all his acts were the acts of the corporation. Consider the following: First. Ted did not enter into the subject contract of

lease on behalf of Gonzalo Realty, either as its president or as its agent. The portion of the contract, Exhibit A, which identified who the parties were to that agreement, shows that Maranan contracted only with Ted in his personal capacity. Thus–– This Contract is made and entered into by and between: TED R. GONZALO, of legal age, Filipino, married, with residence and postal address at 336 J.P. Rizal St., Mandaluyong City, hereinafter referred to as the LESSOR; -andRAMON C. MARANAN, of legal age, Filipino with residence and postal address at 478 Tangco St., Mandaluyong City, hereinafter referred to as the LESSEE. Since the above contract specified Ted Gonzalo as the “lessor” of the property, Maranan cannot pretend that he entered into that contract with Gonzalo Realty itself. The latter’s name does not appear on the face of the contract at all. As a businessman, Maranan is intelligent and his eyes were open. He should be held bound by the representations in that contract that he had dealt only with Ted in his personal capacity. Second. The contract falsely claimed that Ted owned the subject lots. The “whereases” clause unmistakably states: WITNESSETH: WHEREAS, the LESSOR [Ted Gonzalo] is the registered owner of two parcel of land, covered

and embraced by Lot 25, containing an area of 102 square meters and Lot 26 with an area of 15 square meters, both situated at Banaba Subdivision, Poblacion, Mandaluyong City; WHEREAS, the LESSEE desires to lease the above mentioned two Lots and the Lessor is willing to lease the same unto said Lessee, under the following terms and conditions, to wit: x x x

x x x

x x x

Maranan testified that he knew that the two Lots belonged to Gonzalo Realty even before he leased them (TSN, August 27, 2002, p. 29). He, therefore, acted with malice and bad faith when he nonetheless agreed to lease them from Ted under an understanding, which was a false one as Maranan very well knew, that Ted owned the property. A party who had acted in this way could not avail himself of any equitable relief from the consequences of his improper conduct. Third. It does not help Maranan’s case that he admitted in the course of re-cross that before he leased the property from Ted, he had seen the deed of exchange, Exhibit G, which Gonzalo Realty entered into with Acme Realty Corp. for a swap of the lots between them. Since that document was a sample of how Gonzalo Realty, a corporation, contracted with third persons, Maranan was familiar with the form used. Indeed, he admitted that he read the front portion of the deed of exchange and saw that, although the contracting party was Gonzalo Realty, the document declared that Ted, its

president, represented it in the transaction. Still, when it came to the two Lots that Maranan allegedly leased from Gonzalo Realty, he went along with the idea that Ted would act on his own, in a personal capacity, rather than as Gonzalo Realty’s representative. Maranan could not, therefore, claim ignorance of what it took to bind a corporation to a contract. He knew that the lease contract did not bind Gonzalo Realty. Fourth. Even if Maranan and Ted had wanted the latter to bind Gonzalo Realty into that contract, still Ted could not do so. Section 23 of the Corporation Code vests in the board of directors the corporate powers of a corporation, including the power of control over all its properties. Sec. 23. The board of directors or trustees. –– Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporation controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year and until their successors are elected and qualified. As president, Ted only had powers of general administration under the corporation’s by-laws (TSN, January 30, 2011, p. 14). Article 1877 of the Civil Code governs the scope of his authority. Thus: Art. 1877. An agency couched in general terms comprises only acts of administration, even if the

principal should state that he withholds no power or that the agent may execute such acts as he may consider appropriate, or even though the agency should authorize a general and unlimited management. Consequently, with his limited powers, Ted could not encumber the properties of the corporation for a twentyfive-year lease with no adjustments in rent. Such is not an act of general administration. Indeed, Article 1878(8) of the Civil Code provides that a person acting for his principal, like Ted acting for Gonzalo Realty, needs a special power of attorney “to lease any real property to another for more than one year.” Thus: Art. 1878. Special powers of attorney are necessary in the following cases: xxx

xxx

xxx

(8) To lease any real property to another person for more than one year; xxx

xxx

xxx

Here, neither the complaint nor the contract of lease states that Ted had been empowered with a special power of attorney approved by the Board of Directors of Gonzalo Realty to lease its two Lots to Maranan for twenty-five years with no change in rental. Fifth. Assuming that Ted had the authority to enter

into long-term lease contracts on behalf of Gonzalo Realty even without a special power of attorney from its board of directors (a point that is not conceded), still he could not have bound Gonzalo Realty to the particular contract subject of this case. Article 1883 of the Civil Code provides that, if an agent “acts in his own name, the principal has no right of action against the persons with whom the agent has contracted; neither have such persons against the principal.” Here, clearly, Ted acted in his own name. Consequently, Maranan had no right of action against Gonzalo Realty. II. GONZALO REALTY HAS NOT RATIFIED THE CONTRACT OF LEASE BETWEEN TED GONZALO AND MARANAN Maranan next claims that Gonzalo Realty should be considered as having ratified the contract in question considering how it had received monthly rents from him as evidenced by the receipts that it issued. But Gonzalo Realty could not ratify a contract that it did not know existed. Judith Gonzalo testified that they learned of the contract of lease between Ted and Maranan only in August 2010 and Gonzalo Realty lost no time to assail it. Indeed, neither Maranan nor his warehouseman, Fred Simon, testified to having previously discussed with Judith or Edmund Gonzalo, whom they knew were directors and later presidents of the company, the matter of the twenty-five-year contract

of lease. Nor could Maranan capitalize on the fact that he had faithfully paid monthly rentals of P2,000.00 for the property from 2007 to August 2011. Consider the following: 1. As Judith Gonzalo testified, when she took over from Ted as president of Gonzalo Realty in August 2010, she simply continued to have the rentals collected from the known existing tenants on their properties. She had assumed, in the absence of any written contract in the files of the corporation, that these tenants were, consistent with Guillermo’s limited authority, on a month-to-month lease only since they were paying rents on a monthly basis. Consequently, Maranan cannot infer from the fact of Gonzalo Realty’s receipt of rentals from him beginning in August 2010 that it had knowledge and approved of his 2007 contract of lease. Only when Maranan invoked his alleged twenty-five-year contract with Ted and sent a copy of it to Gonzalo Realty around August 2011 did the latter learn of its existence. And Gonzalo Realty promptly informed Maranan that the contract was void. 2. The receipts that Maranan got for the rents he paid are consistent with Gonzalo Realty’s lack of knowledge of the contract and his occupation of the property in 2007. The paper trail of receipts he offered is interesting and proves this point. Consider the following: First. The lease evidently ran for over two years from April 2007 to July 2010 as a secret, illicit agreement solely between Maranan and Ted. The receipts corresponding to this period were mostly unofficial,

written on scratch papers of various sizes (Exh. D to D34). In some cases, official receipts had been issued but these were in the name of TRG Enterprises, a business that belonged to Ted. TRG stood for Ted R. Gonzalo. For five years, therefore, Maranan and Ted actually cheated Gonzalo Realty of earnings from its property. Second. Official receipts from Gonzalo Realty appeared only from August 2010, consistent with Judith Gonzalo’s testimony that only from that month did their company begin to collect rents from Maranan (Exh. B to B-19). She testified that they assumed that Maranan had been leasing the property on a month-to-month basis and they collected rents from him in good faith on the basis of that belief. III. GONZALO REALTY IS ENTITLED TO DAMAGES For having instituted this baseless and malicious suit, Maranan should be held liable to Gonzalo Realty for moral damages and attorney’s fees. WHEREFORE, defendant Gonzalo Realty Corporation respectfully prays the Court to render judgment: 1. Dismissing the petition for lack of merit; and 2. Ordering plaintiff Ramon C. Maranan to pay defendant moral damages of P1 million and attorney’s fees of P100,000.00 plus appearance fee for counsel at P3,000.00 per hearing. [Explanation: A copy of this memorandum has been

served on the adverse party by registered mail in view of the distance and the absence of a messenger who could make a personal service.] Manila for Muntinlupa City, May 12, 2009. ISABELA H. FONTILA Counsel for Gonzalo Realty Corp. 2nd Flr. Olympia Bldg. 445 Buendia Avenue Makati City Atty. Roll No. 23456 IBP 544498 12-21-09 PTR 8723254 01-02-09 MCLE Compliance III-295 Email: [email protected] Copy furnished: Atty. Shaira A. Cruz 346 President Avenue Parañaque City

Writing Exercises You will find in Appendix A of this book the important portions of the record of an actual carnapping case. The names of persons and places involved have been changed to protect the privacy of those involved. And, although the materials have been edited, the purpose is only to eliminate collateral discussions and control length. What remains are faithful to their substance.

Assume that the case has been submitted for decision and the court has required you to file a memorandum in support of your client’s case, whether you choose to be lawyer for the prosecution or for the accused. Use what you have learned and go through the process suggested in this book. 1. Read the materials closely and determine the legal dispute by ascertaining what right of a party the other has violated. 2. Make an outline of the relevant facts of the case, arranging them in the order of time. 3. Afterwards, study the laws and rules involved in such a dispute. 4. List down all the issues involved and identify the controlling issue or issues that, when resolved, will end the legal dispute. 5. Rough out your argument on a paper, using the balance sheet format. At the bottom of the balance sheet, write your closing statement, usually an appeal to the good sense of the reader. 6. Write up your memorandum, introducing the issue or issues, fleshing out your arguments, and making a closing statement. Finally, edit your work to rid it of needless words and improve its clarity. You cannot learn legal writing by just knowing its theories and techniques. You sharpen an ax only by passing it through a grinding stone. And this practice case is such a grinding stone.

15. Writing Petitions for Review When you lose a case in the Court of Appeals, your last recourse is an appeal by certiorari from that court’s decision to the Supreme Court. This appeal is also available from the decision of the Sandiganbayan or the Regional Trial Court on pure questions of law. Although appeal by certiorari is essentially an appeal, it is initiated by filing a petition for review that has the features of an original complaint or petition. Thus, apart from making a concise statement of the matters involved as well as the arguments you rely on in support of your petition, you need to incorporate in it the formal parts of an initiatory pleading like the parties’ identities, verification, and a certificate of non-forum shopping. Additionally, you have to show the timeliness of your action. The Supreme Court is not bound to entertain every petition for review of a decision of the Regional Trial Court, the Sandiganbayan, or the Court of Appeals. In fact, the Supreme Court gives due course to only a very small number of the hundreds of petitions for review filed with it monthly. This is dictated by necessity. The High Court has very limited capacity for fully reviewing every decision rendered by those courts. So how do you get the Supreme Court to give due course to your particular petition for review? The main thing, of course, is that you must present a meritorious case. But even if your case were really meritorious, it will not do if the Supreme Court is unable to see and

appreciate its merit. To succeed, your petition must be: 1. Clear—You need to be understood. If you present a hazy picture of your case, it would be doomed from the start. Take pains to rewrite your draft over and over until it is so clear that your reader can understand what the case is about in one reading. That is probably all the chance you would get in the first place to earn a due course—one reading. Some of the techniques for writing clearly have been discussed earlier. Use them. 2. Brief—You need to be understood fast. You can be sure that all petitions for review are read, if not by a justice himself, at least by some competent lawyer-assistant who do initial screening or summarizing of sort. If you make a lengthy presentation because you use more words and sentences than you need to, your reader will lose interest in your case, his mind will wander away, and you will lose him. Result: No due course. You need, therefore, to tighten your work and make it terse to fit into the time that your reader mentally allots to you. 3. Interesting—You need, above all, to create in the Supreme Court’s mind an interest in your case. And you can do this only if you can convince it that the court below has committed a grievous wrong that compels the High Court to intervene. Small wrongs have small chances. Quite often, a strong and compelling yet respectful language would do it since you need to communicate a sense of controlled anger over the injustice done your case. A timid and equivocal voice is seldom heard. It will also help if, in the Court’s mind, deciding your case will contribute to the development of jurisprudence. Cases that present novel issues tend to get into first base because the Supreme Court is also a teaching court. Final point. A large number of petitions, some probably meritorious, get thrown out every year on account of incompleteness. The rules require you to include the following in your client’s petition:

a) The full names of the petitioner (appellant) and the respondent (the adverse party); b) An indication of the material dates showing when your client, the petitioner, received notice of the judgment or final order or resolution subject of the petition, when he filed a motion for new trial or reconsideration, if he did, and when he received notice of its denial; c) A concise statement of the matters involved in the petition [the facts of the case, the issues petitioner presents in relation to the appealed decision, and the position he takes on those issues]; d) The reasons or arguments he relies on for the allowance of the petition; e) His verification of the facts stated in the petition; and f) A sworn certification that petitioner has not indulged in the evil of forum shopping signed by the petitioner himself. In addition to the above, your client is required to: a) Pay the docket and other fees; b) Attach to his petition a clearly legible duplicate original, or a certified true copy of the judgment, final order, or resolution subject of review and its requisite number of plain copies; c) Attach, too, such material portions of the record below as would support the petition; d) File the required number of plain copies of the petition; e) Submit an affidavit of service of copies of the petition on the adverse party and the court below by personal service or by registered mail with registry receipts attached and with an explanation why personal service was not done; f) See to it that the affidavit of service, the verification, and the certification of non-forum shopping indicate competent evidence of the identities of the persons who swore to such documents; and g) If petitioner is represented by counsel, indicate in the petition

counsel’s IBP official receipt, PTR, Roll of Attorney, and MCLE Compliance or exemption numbers as well as counsel’s email address and phone numbers. The rules provide that the failure of the petitioner to comply with any of the above requirements “shall be sufficient ground for the dismissal thereof.” Both the Supreme Court and the Court of Appeals have rigidly, some says arbitrarily, dismissed cases for non-compliance and refused to reconsider the dismissal even when the parties seek to rectify unintended omissions.

Illustrative Case: Excal Corp. v. Jimenez Here is a sample petition for review. Some details have been altered to protect the privacies of the persons involved. Republic of the Philippines SUPREME COURT Manila EXCAL CORPORATION, Petitioner, - versus Spouses CARLO and EDNA JIMENEZ, Spouses LUIS and BELLA GOZON, and Spouses ROGER and LORNA LIM, Respondents. x--------------------------------------x

G.R. No. __________ (CA-GR. CV 70743)

PETITION FOR REVIEW Petitioner, by counsel, respectfully states: The Parties 1. Petitioner Excal Corporation (Excal) is a domestic corporation engaged in the importation and distribution of gasoline and other petroleum products. It holds offices at the Excal Building, Makati Avenue, Makati City. 2. Respondent spouses Carlos and Edna Jimenez (the Jimenezes), spouses Luis and Bella Gozon (the Gozons), and spouses Roger and Lorna Lim (the Lims) are Filipinos, of legal ages and residents of Bacolod City. They can be served with the processes of the Court thru their counsel of record, Atty. Ramon L. Samson at 4th Floor, Hermanos Building, Garcia Road, Bacolod City. Material Dates 3. On December 18, 2012 Excal received a copy of the adverse decision of the Court of Appeals in CA-G.R. CV 70743 dated December 12, 2012, a certified true copy of which is attached to the original of this petition as Annex A. Consequently, Excal had until January 2, 2004 within which to file a petition for review of that decision. 4. On January 2, 2013 Excal filed with this Court a motion for extension of thirty days from that date or until February 1, 2013 within which to file its petition for review of the Court of Appeals’ decision. Excal is filing

this petition within the period it asked for. Statement of the Matters Involved 5. For an unknown reason, in the course of the discharge of gasoline from a truck to the underground storage tank of a gas station, the fuel being discharged caught fire. When the truck driver who had left his truck unattended returned and saw the fire, he immediately drove his truck away from the gas station but dragged along a hose that spewed flames. These set the nearby buildings on fire. 6. In ruling that liability for the accident belonged to Excal, which happened to have sold the fuel to the independent gas station dealer involved in the case, the Court of Appeals made the following rulings: One. Since Excal and the gas station dealer continued transacting business without renewing or extending their dealership contract in writing after it had expired, Excal should be considered as having replaced its dealer and directly become the operator of the gas station; Two. Also because of its failure to extend or renew such dealership contract in writing, the damage caused by the gas station fire should be borne by Excal. Three. Excal is liable notwithstanding that the truck belonged to an independent hauler and the gas station belonged to an independent petroleum dealer.

Four. Suppliers of fuel like Excal continue to be liable for the neglect of others in distributing and storing the fuel they have sold. 7. Excal implores the Court to rectify the above rulings for not only do they contravene the law, they are also irrational and unjust. The Facts and the Case 8. The facts of the case are not in dispute. Excal supplied gasoline and other petroleum products to two classes of gasoline stations: those that it owned and those that belonged to independent dealers. In the latter case, the dealers owned the building and other structures in their gas stations except gas-pumping and related equipment. Neither the dealers nor their employees worked for Excal.1 9. In this case, Excal had a Retail Dealer Contract2 with James Ursal who owned and operated a gas station in Burgos Avenue, Bacolod City. Although this contract expired in May 2008, they continued to transact business with each other in the usual way.3 10. To facilitate delivery of its products to its dealers, Excal engaged the services of independent haulers who were equipped with their own tank trucks and hired their own truck drivers. In this case, Excal had a contract of haulage with Vicente Rama4 who did business under the name Rama Freight Services.5 Under the contract, Rama assumed exclusive liability for any

damage arising from the neglect of his employees. Section 3.2 of that contract provides: 3.2 “Any and all drivers, mechanics and other personnel, of the CONTRACTOR (Rama) are not, and under no circumstances shall be deemed, personnel and employees of EXCAL and for this reason the CONTRACTOR alone shall be answerable for the payment of their wages and salaries and the safeguarding of their health and safety and the performance of the other obligations in accordance with existing laws and regulations, it being further understood as a consequence that the CONTRACTOR alone shall be responsible for any and all accidents, injuries and death involving said personnel, agents, and/or employees.” 11. At about 10 o’clock on the morning of January 3, 2010, James Ursal bought a tank-truck of gasoline from Excal. After issuing the invoice and the receipt covering payment, Excal loaded the gasoline into the tank truck of Rama, then driven by his truck driver, Jose Noble. The tank truck left the oil depot and proceeded to the gas station in Burgos Avenue.6 12. While gasoline was being discharged from the tank truck into the fill pipe that led to the gas station’s underground tank, Noble left his truck unattended to buy dried fish from the nearby marketplace. On returning to the station, he saw that fire had broken out from the underground fuel tank. But rather than detach the rubber hose from the flaming fill pipe, he drove his truck in reverse, dragging along a flaming fuel hose. Flames from the hose set the buildings owned by the

Jimenezes, the Gozons, and the Lims on fire.7 The authorities were never able to establish what started the fire in the underground tank. 13. As a result of the fire, the Jimenezes, the Gozons, and the Lims filed separate actions for damages against Excal, Ursal (the gas station operator), and Rama (the truck owner) in Civil Cases 123567, 123569, and 123572 of the Regional Trial Court of Bacolod City. These were consolidated in Branch 28 of the court. After trial, the trial court rendered a decision, an authentic copy of which is here attached as Annex B, a) holding Excal, Rama, and Ursal solidarily liable for negligence that led to the conflagration; and b) ordering them to pay the Jimenezes P1.5 million, the Gozons P1.2 million, and the Lims P1.7 million in actual damages and P100,000.00 each in attorney’s fees and expenses of litigation. 14. Excal, Ursal, and Rama appealed the decision to the Court of Appeals in CA-G.R. CV 70743. Excal filed its appellant’s brief, copy here attached as Annex C. In response, the Jimenezes, the Gozons, and the Lims filed a consolidated appellees’ brief, copy here attached as Annex D. 15. On December 12, 2012 the Court of Appeals affirmed the decision of the trial court, hence, this petition. Questions of Law Presented Petitioner Excal presents the following questions of law: 1. Whether or not Excal may be considered at fault for continuing to do business with James Ursal, an

independent petroleum dealer, without renewing or extending their expired dealership agreement; 2. Whether or not a causal connection exists between Excal’s failure to renew or extend its dealership contract with Ursal and the fire that inflicted damages on the buildings surrounding the latter’s gas station; 3. Whether or not Excal is liable for the fire that occurred during the unloading by an independent hauler of the fuel it sold to an equally independent dealer at the latter’s gas station; and 4. Whether or not a supplier of fuel can be held liable for the neglect of others in distributing and storing such fuel. Reasons for Allowing the Petition I. A RULING THAT PARTIES ARE AT FAULT FOR CONTINUING THEIR BUSINESS WITHOUT RENEWING THEIR CONTRACT CONTRAVENES THE LAW. The Court of Appeals blames Excal for the gas station fire. It ruled that, since James Ursal operated that gas station under an expired dealership contract, Excal should be deemed to operate it directly and assume liability for the fire. Said the Court of Appeals: Excal was negligent for having allowed the continued operation of the gasoline station in selling and storing its products for over one year, from May 2008 until the fire incident in January 2010, without an existing dealership contract. It bears to note that Excal’s five (5) year dealership

contract with appellant James Ursal had long expired as of May 2008. Notwithstanding, Excal continued to deliver gas and petroleum products to the gasoline station upon the request of one Rolando Arnaiz. Clearly, there was no dealer to speak of in respect of the subject gasoline station in the absence of a dealership contract, with the result that the said gasoline station should be considered as being run by Excal itself, thereby making the station a company-operated one. Consequently, Excal cannot disown the petroleum products that it delivered at the time of the fire incident. Responsibility cannot therefore be transferred by appellant to a particular dealer in the absence of a contract to that effect. If at all, the persons running the gasoline station are merely its agents in the business. As held in Pleasantville Development Corporation v. Court of Appeals, “the rule is that the principal is responsible for the acts of the agent, done within the scope of his authority, and should bear the damage caused to third persons.” Conceding arguendo that the dealership contract was impliedly renewed, with whom did Excal renew its contract, when at the time of the conflagration it was the spouses Rico and Sonia Ursal who operated the gasoline station? This question was not squarely answered by Excal. James Ursal executed a Special Power of Attorney in favor of Rico Ursal and such Special Power of Attorney expired with the expiration of James Ursal’s contract with Excal in 2008. Excal

did not enter into another contract with Rico Ursal. All told, no dealership agreement existed at the time of the incident in January 3, 2010, hence, Excal is not relieved of any liability as result of the conflagration. (At pp. 8 and 9) But, with due respect to the Court of Appeals, although Excal’s contract with James Ursal expired in May 2008, they continued to do business with each other observing the same terms and conditions provided in that contract. By their acts, therefore, they impliedly extended or renewed their dealership contract. This principle of implied extension or renewal is quite fundamental. All sorts of everyday contracts rest on it, including leases on buildings and hires of services. The world of business cannot grind to a halt just because parties are too busy to renew or extend their contracts. Implied renewals or extensions of contracts are not outlawed in this country. Just as bizarre is the Court of Appeals’ ruling that since Excal and James Ursal did not renew their dealership contract in “writing,” Excal should be regarded as the direct operator of the gas station, with James Ursal acting merely as its agent. Again, no law or jurisprudence supports this ruling. There is nothing in the law on ownership of property or business that says that a supplier automatically becomes the owner and operator of his dealer’s business once they fail to renew their dealership agreement in writing. The Court of Appeals’ ruling would give rise to many absurd and ridiculous situations. For instance, in contracts of lease of apartments, the failure of the apartment owner and his tenant to renew their expired

lease contract would, following the Court of Appeals’ ruling, make the apartment owner liable if his tenant brings in obnoxious materials into that apartment to the prejudice of the neighbors. Because of the non-renewal of the lease contract the tenant becomes the owner’s agent, making the owner of the apartment liable for his tenant’s acts. No law supports this proposition. II. THE ALLEGED NEGLECT OF EXCAL TO RENEW ITS DEALERSHIP CONTRACT WITH URSAL DID NOT CAUSE THE GAS STATION FIRE AND SO IT CANNOT BE THE SOURCE OF EXCAL’S LIABILITY But, assuming that Excal was negligent in failing to renew its dealership contract with James Ursal, still it cannot be held liable for the damages brought about by the fire. Basic is the rule in quasi-delicts that, in order to recover damages, a causal connection between the fault or negligence and the damage must exist. Negligence as giving rise to a cause of action for damages for personal injuries requires not only proof of damage to the plaintiff and negligence on the part of the defendant but also the connection of cause and effect between such negligence and the damage.8 This Court has consistently ruled that, for liability to attach, it must be shown that the damage to the plaintiff was the natural and probable, or direct and immediate, consequences of the defendant’s culpable act or

omission.9 In other words, the fault or negligence must be the proximate cause of the damage. Proximate cause has been defined as that cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.10 Here, however, no rational link exists between Excal’s alleged neglect in failing to renew its supply agreement with James Ursal and the act that set the buildings around the gas station on fire. Consequently, the nonrenewal of the agreement creates no liability on Excal’s part. III. THE SUPPLIER OF FUEL TO AN INDEPENDENT DEALER CAN BE HELD LIABLE FOR THE FIRE THAT OCCURRED DURING THE UNLOADING OF THAT FUEL BY AN EQUALLY INDEPENDENT HAULER The Court of Appeals held that Excal should nonetheless be held responsible for the damages caused by the fire since it had not yet completed delivering the gasoline to James Ursal when the fire broke out. It said: Assuming further, that there was an existing dealership contract between Excal and James Ursal at the time of the fire incident, still Excal cannot avoid liability by contending that the ownership of the petroleum products had already been transferred to James Ursal upon payment of the price and delivery of the products. It bears to stress that at the time the

fire broke out, there was as yet no complete delivery of the petroleum products since the tank truck was still in the process of discharging gasoline. But the unrefuted evidence on record shows that Excal sold and transferred possession and control of the gasoline involved in this case to its dealer, James Ursal, when the latter’s representative Rolando Arnaiz went to the oil depot, bought the gasoline, paid for them, and had Rama’s tank truck receive them for delivery to Ursal’s gas station.11 Under a contract of sale, Excal ceased to be the owner of the petroleum products from its receipt and turnover at Excal’s depot. James Ursal acquired ownership of them while they were on transit and while being unloaded at his gasoline station. The New Civil Code provides: Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. What is more, the tank truck and its supply of gasoline safely arrived at James Ursal’s gas station. As an independent hauler of petroleum products, Rama assumed the responsibility for delivering them safely to Ursal’s gas station. As an independent dealer, Ursal assumed responsibility for receiving the products, opening the right fill pipe, allowing gasoline to be discharged into it, and supervising the proper use of its facilities. Surely, it would be unreasonable to suggest that Excal, the company from which depot the fuel came, should monitor and supervise the use of its products

wherever they may be found. Although petroleum products, like gasoline and liquefied petroleum gas or LPG, are flammable materials, they are widely and commonly used even in households. Those who buy these materials may be assumed to know how to use them safely. Still accidents do happen. But must the supplier of these products be liable for all such accidents? In this case, as the trial court and the Court of Appeals found, while gasoline from the tank truck was being discharged into the gas station’s underground tank, the truck driver left it unattended to buy something from the nearby market. For an unknown cause, the underground tank caught fire. On his return, the truck driver maneuvered the truck in reverse without detaching the rubber hose from the flaming fill pipe of the underground tank. Consequently, he dragged along the flaming fuel hose that set the surrounding buildings of the Jimenezes, the Gozons, and the Lims on fire. The Court of Appeals has no valid reason for holding Excal solidarily liable with Rama. Neither Noble (the truck driver who worked for Rama) nor Rama himself worked for Excal. Excal contracted with Rama, an independent hauler, to haul and deliver petroleum products from its oil depot to its customers. And under the Hauling Contract that governed their relation, Rama took it upon himself to assume exclusive liability for any damage that his employees may cause. Its Section 3.2 provides: 3.2 “Any and all drivers, mechanics and other

personnel, of the CONTRACTOR (Jose Villaruz) are not, and under no circumstances shall be deemed, personnel and employees of EXCAL, and for this reason the CONTRACTOR alone shall be answerable for the payment of their wages and salaries and the safeguarding of their health and safety and the performance of the other obligations in accordance with existing laws and regulations, it being further understood as a consequence that the CONTRACTOR alone shall be responsible for any and all accidents, injuries and death involving said personnel, agents, and/or employees.” (underscoring supplied.) Of course, the Court of Appeals held that Excal was negligent in allowing the particular tank truck enter its depot and load the gasoline intended for James Ursal’s gas station although it was not among the several tank trucks listed in the Hauling Contract. Said the Court of Appeals: Likewise, Excal was negligent in allowing through its employee, Cesar Ruiz, appellant-hauler’s truck with plate No. NVC-245 to enter its depot and load Excal’s products despite the fact that same was not among those listed in the hauler’s contract. In this regard, Section 4.2 of the hauler’s contract provides: “4.2 In order to faithfully comply with its commitments to EXCAL as herein stipulated, the CONTRACTOR binds and obligates himself to assign three units tank trucks for the exclusive use of hauling requirement of EXCAL and such units herein and hereby assigned are particularly identified and described

as follows: Plate No. NVC 248 NVC 482 TH-FVG 484

Capacity 10 10 10

But the undisputed evidence on record shows that Excal took the extra precaution of ensuring that the particular tank truck of Rama had all the requirements needed to make a safe delivery of its petroleum products.12 Besides, although the truck involved was not in the list mentioned, the contract did not prohibit Rama from using other trucks that also met what it required. What was controlling in the agreement was Rama’s obligation to provide tank trucks that are properly equipped to carry Excal’s products to its customers. And Rama complied with it. More importantly, the fire in this case did not originate from the tank truck nor did it occur as a result of any defect in that truck.13 Consequently, the Court of Appeals had no basis for exploiting the use of the unlisted truck in the delivery of the gasoline to James Ursal’s gas station. Nor did an employer-employee relationship exist between Excal and James Ursal or Rico Ursal, the independent dealer and his manager. They did not work for Excal. The Retail Dealer Contract between Excal and James Ursal specifically relieved Excal of any liability for damages arising from fault in the storage and handling of its petroleum products at the gas station.

Paragraph 14 of their contract provides: “INDEPENDENT BUSINESSMAN. BUYER (James Ursal) discloses that he is an independent businessman/business and as such it guarantees that SELLER (Excal) will be free and harmless from any claims or suits of whatsoever nature arising from BUYER’s operation of the business. Excal did not at all exercise control over the operation of the gutted gasoline station. IV. A RULING THAT SUPPLIERS OF FUEL ARE LIABLE FOR THE NEGLECT OF OTHERS IN DISTRIBUTING AND STORING SUCH FUEL CONTRAVENES THE LAW The Court of Appeals ruled that Excal was accountable for the fire that occurred at James Ursal’s gas station because it was remiss in providing adequate measures for the safe distribution and storage of the fuel that Ursal bought from it. It held that: Moreover, Excal was remiss in its obligation of providing adequate measures for the safe distribution of its petroleum products. One who has in its possession or its control articles or products which are highly inflammable, like gasoline, is duty-bound to take exceptional vigilance, care and precaution in the handling thereof to prevent any injury or damage to others. Such degree of care and vigilance which

the circumstances justly demand to prevent and undue risk of harm to others, appellant Excal failed to exercise. Consequently, its contention that it is no longer responsible once the prepaid product left its depot is erroneous since it is obliged to ensure not only the safe delivery but the safe storage as well of its products. But, in the first place, there is no evidence that the fire at James Ursal’s gas station could be traced to an inadequate distribution or storage safety measure that was the responsibility of Excal. The immediate cause of the conflagration in the neighborhood of the gas station was the truck driver’s neglect in leaving his truck unattended while discharging gasoline and in backing it out of the gas station with its hose spewing out fire. Surely, there was nothing that Excal could reasonably do to prevent what happened since it did not supervise or control the work of Rama’s driver. As independent businesses, both the hauler of fuel products and the operator of the gas station have to answer for their own actions and the doings of their employees. These haulers and gas station operators do apply, like any other business, for government permits and licenses appropriate to the nature of their activities and requiring compliance with the standards of safety prescribed for their particular businesses. It would be unreasonable and unjust to impose on manufacturers and suppliers an unending liability for the mishandling and misuse of their products by any person wherever these may be found. Prayer

WHEREFORE, petitioner Excal Corporation respectfully prays the Court to render judgment modifying the decision of the Court of Appeals by absolving Excal from any liability in the case. Petitioner prays for such other reliefs as are just and equitable under the circumstances. [Explanation: Copies of this petition have been served on the adverse parties by registered mail in view of the distance involved and lack of messenger who could undertake personal service.] Makati City for Manila, January 31, 2013. SHAIRA A. CRUZ Counsel for Petitioner Excal Corp. 5th Floor, Homer Building 245 Bataan Street, Palanan, Makati City Atty. Roll 22345 IBP No. 545698 12-21-12 PTR No. 6453254 01-02-2013 MCLE Compliance III-297 Email: [email protected] Tel. and Fax 8765432 Verification and Certification I, Atty. Amy V. Villalon, of legal age and with office address at the Excal Building, Makati Avenue, Makati City, after having sworn in accordance with law, depose

and state that: 1. I am the General Counsel and Corporate Secretary of Excal Corporation, duly empowered to cause the filing of this petition on its behalf under a board resolution, copy here attached; 2. I have read the foregoing petition and the facts stated in it are true based on the authentic record of the case; 3. I have not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency; 4. To the best of my knowledge, no such action or claim is pending therein; and 5. If I should thereafter learn that the same or a similar action or claim has been filed or pending, I shall report that fact within five (5) days therefrom to this Court. AMY V. VILLALON SUBSCRIBED AND SWORN to before me this 31st day of January 2009 in Makati City. Affiant exhibited to me his LTO Driver’s License No. N10-68262687, expiring on May 24, 2012. BEN I. MADRID Notary Public Attorney’s Roll 45678 Appointment No. 678 Until December 31, 2013

PTR # 56789 1-12-13 Manila IBP # 24680 1-12-13 MCLE Compliance III-3456 1234 Quezon Avenue, Q.C. [email protected] Doc. No. 218; Page No. 27; Book No. I; Series of 2013. Copy furnished: The Court of Appeals Ma. Orosa St., Ermita, Manila Atty. Noel C. Javier Javier Santos Reyes & Garcia 2nd Floor, Standard Bldg. Magsaysay Drive, Bacolod City Atty. Roy B. Cancio Empress Bldg. Damaso St., Bacolod City Atty. Liberador Guadiz Hanson Bldg., Iresare St. Bacolod City

Writing Exercises

An actor and his talent manager sued a film producer for rescission of the actor’s movie contract and damages. Before filing an answer, the producer entered into a compromise agreement with the talent manager maintaining the contract but providing for payment of a substantial sum to the actor. The latter told the court, however, that he did not authorize the agreement for what he wanted was for the producer to release him from the contract. Meantime, as the case dragged on, the actor got involved in a film festival scandal that diminished his image. When the producer offered to release him from his contract, he suddenly had a change of heart. He told the court that he would now accept the compromise agreement signed by his talent manager and sought a judgment based on that agreement. Over the producer’s objections, the trial court rendered judgment approving the compromise agreement and directing the producer to pay the amount mentioned in it. On appeal, the Court of Appeals affirmed that judgment. For exercise, write a petition for review on behalf of the film producer, appealing the decision of the Court of Appeals to the Supreme Court. The materials you need consist in the copies of the Court of Appeals’ decision, the film producer’s appellant’s brief, and the actor’s appellee’s brief. These are found in Appendix B of this book. Certain details about the parties and the events have been changed to protect the privacy of those involved. The challenge is for you to seek a reversal of the Court of Appeals’ decision.

1TSN, July 28, 2010, pp. 29-34. 2Exhibit 5 for Petron. 3TSN, February 7, 2010, pp. 4-7. 4Exhibit 1 for Petron. 5TSN, December 5, 2006, pp. 3-15; TSN, July 28, 2006, pp. 22-35.

6TSN, June 29, 2010, pp. 6-13. 7TSN, December 5, 2010, pp. 4-7; TSN, December 15, 2010, pp. 27-31; TSN, December 16, 2010, pp. 14-15. 8De Gregorio v. Go Chong Bing, L-7663, December 2, 1957. 9Algarra v. Sandejas, 22 Phil. 293; Taylor v. Meralco, 16 Phil. 8; De Gregorio v. Go Chong Bing, 102 Phil. 556. 10Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186. 11TSN, June 29, 2010, pp. 6-13. 12TSN, July 28, 2010, pp. 27-29. 13TSN, December 16, 2010, p. 15.

16. Writing a Decision In a decision, the judge makes a choice of which opposing claims he accepts as true or correct. But, since due process entitles every litigant to know the reason or reasons for the decision in his case, it is incumbent for the judge to make a clear, logical, and convincing presentation of that decision. As a rule this requires that he lays down: (a) the conflicting claims of the parties, (b) the issues that separate them, (c) the resolution of those issues, and (d) an adjudication of the respective rights and liabilities of the parties. Some judges tend to write excessively lengthy decisions, believing that they are expected to summarize the pleadings of the parties and the testimonies of all the witnesses in the case before addressing the issues that the case presents. But, this is unnecessary. As already stated in Chapter 7, what is required is only such amount of background facts as would be sufficient to enable the reader to understand the issues that the parties raise. A few judges believe that making findings of fact means that they can simply make a summary of the facts as they found these to be without need of resolving the conflicting factual versions of the parties. At times, they precede this summary with the court introduction: “The facts of this case as found by the Court are as follows.” This is wrong because a party is entitled to know the reason why the judge rejects his version in favor of that of his opponent. The best and simplest approach in dealing with conflicting factual

versions is to briefly summarize both versions, identify the relevant issues of fact and resolve such issues, stating the reason for accepting one version and not the other. In a maritime case, a commercial vessel, temporarily under the command of a government-license harbor pilot, bumped into a power barge that had been lashed to the wharf and supplied electricity to the city. The power barge owner filed a lawsuit against the vessel for the damage suffered by its barge. For its defense, the vessel placed the blame on the harbor pilot and insisted that the barge did not suffer any compensable damage.

Illustrative Case: Hudson Power Corp. v. Nemo Shipping The sample decision below sets a correct pattern for adjudicating the issues raised in the case. Republic of the Philippines REGIONAL TRIAL COURT Branch 115, Manila HUDSON POWER CORP., Plaintiff, Civil Case No. 16295

- versus NEMO SHIPPING CORP., Defendant. x----------------------------------x

DECISION

Plaintiff Hudson Power Corporation (HPC) filed this action against Nemo Shipping Corporation for the alleged fault of its vessel’s captain that resulted in damage to its power barge at the Layag Wharf in Cagayan de Oro City. Nemo Shipping resisted the action, claiming that the fault lay, not with its vessel, but with either the harbor pilot who commanded her during docking or with HPC itself. Stipulated Facts At the pre-trial hearing, the parties stipulated on the following facts: 1. Nemo Shipping’s vessel, the MV Iligan, and HPC’s power barge 102 were at the Layag wharf, Cagayan de Oro City on March 20, 2005; 2. Power barge 102 was a non-propelled vessel; 3. Capt. Henry Suntay was the master or captain of MV Iligan; 4. While maneuvering at the Layag wharf, MV Iligan hit HPC’s power barge 102; 5. Nestor J. Canto, the manager of power barge 102, filed a marine protest; and 6. The Board of Marine Inquiry (BMI) acquired jurisdiction over the separate marine protests filed by Mr. Canto and Capt. Suntay. The Evidence of the Parties

At the trial, HPC presented Atty. Renato Collar, the BMI presiding officer who testified that the BMI heard the marine protests of Mr. Canto1 and Capt. Suntay.2 After

the

Board

submitted

its

findings

and 3 recommendations to the Philippine Coast Guard. The latter rendered a decision on November 23, 2011, finding Nemo Shipping liable for ramming HPC’s power barge 102.4 Ms. Elena Lazaro, a BMI stenographer, identified the transcript of stenographic notes5 taken during the hearing. HSC’s only other witness was Mr. Nestor Canto, the plant manager of power barge 102 that supplied electricity to the Mindanao power grid. Based on his testimony, he immediately went to the wharf soon after learning of the ramming incident. He noted sludge oil leaking from a crack on the power barge’s hull. To stop the oil leak, he applied water epoxy on the barge’s clutch. In his report, a certain Mr. Neri estimated the damage to the barge at P1 million. Mr. Canto used this report as basis for his marine protest. Despite the ramming, the power barge soon resumed generating power. Months later, HPC dry-docked it with the National Shipyard Corporation or Nasco for repair.6 HPC paid Nasco P6,775,000.007 for the works. Further, HPC suffered P500,000.00 in moral damages and spent P18,000.00 for its marine protest and the case. Nemo Shipping, on the other hand, presented as witness the Chief Mate of MV Iligan, Senen Torres. Based on Torres’ testimony, at the time of the incident,

Capt. James Yabut, a harbor pilot, commanded MV Iligan. The Philippine Ports Authority or PPA assigned harbor pilots to assume mandatory control of vessels docking at the Layag Wharf. Capt. Yabut did not work for Nemo Shipping of MV Iligan at the time of the docking, Chief Mate Torres stood beside Capt. Yabut and relayed his commands to the crew. Capt. Yabut gave his first command, “Slow ahead engine.” This meant that those in control of the engine room below were to move the vessel slowly forward. The command came when the vessel was about 200 meters from the wharf and was traveling at a speed of 15 kilometers per hour. Responding, the vessel slowed down. When she came to about 100 meters from the wharf, Capt. Yabut gave his next command, “Dead slow ahead.” The vessel moved even slower. When she came to some 25 meters from the wharf or 50 meters from the power barge, Capt. Yabut gave the command, “Engine stop.” The vessel was then moving westward parallel to the wharf and towards the barge. He gave his next command, “drop anchor,” just when MV Iligan was just 15 to 20 meters from the power barge. The vessel slowed down but her bow managed to bump the hull of HPC’s power barge berthed at the wharf. The impact of the bump on the power barge was slight and did not cut her ropes. Although it tripped off the power lines, it caused no hull damage either to MV Ilagan or to HPC’s power barge 102. The barge had two rubber tires serving as fenders to protect its steel hull from vessels maneuvering around the wharf. Unfortunately, MV Ilagan hit the part of the hull that had no rubber tire protection.

Chief Mate Torres, himself an expert mariner, found fault in the way the harbor pilot maneuvered MV Iligan. Diligence required Capt. Yabut to first test the capability of the vessel’s twin engines before maneuvering her. He did not. What is more, he failed to order the dropping of the anchor before giving the command, “engine stop,” to halt the vessel’s momentum. He miscalculated her distance and speed. Mr. Jerry Roces, legal assistant of Nemo Shipping, testified that as a consequence of the filing of the complaint, his company suffered moral damages and incurred expenses for attorney’s fees. The Issues The case presents the following issues: First, whether or not Nemo Shipping is liable to HPC for what damages its power barge 102 may have suffered on the occasion of its ramming by MV Iligan; and Second, whether or not the parties are entitled to damages and attorney’s fees. Discussion 1. No one disputes the fact that, at the time of the ramming of power barge 104, Capt. Yabut, a harbor pilot commanded MV Iligan as it maneuvered to berth alongside the Layag wharf in Cagayan de Oro City as required by maritime rules. Sections 8, Article III of PPA Administrative Order 03-85 provides:

SEC. 8. Compulsory Pilotage Service. –– For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. x x x Since Nemo Shipping had no choice but to yield the navigational control of its vessel to compulsory pilotage by Capt. Yabut, the latter and the Harbor Pilot’s Association with their bondsmen should be the ones to assume liability for any accident that resulted from the docking procedure. This is but fair especially since HPC did not care to present any witness to show that Nemo Shipping, through its captain and crew, was at fault in responding to Capt. Yabut’s command. The fact is that Nemo Shipping’s chief mate, a licensed mariner, testified without contradiction that Capt. Yabut was at fault in calculating the vessel’s speed and distance and in giving improper commands during the maneuver. Consequently, he alone or the Harbor Pilot’s Association should answer for the consequences of such fault. 2. HPC of course puts the blame on Nemo Shipping, alleging that the latter’s vessel failed to respond adequately to the astern maneuvers directed by the harbor pilot. To support this claim, HPC relied heavily on the findings of the BMI8 and the decision of the Philippine Coast Guard9 in BMI Case 567-01 as well as in the transcript of stenographic notes10 of the

testimonies of Capt. Suntay and Capt. Yabut before the Board. But the record will show that when HPC filed its complaint, it based its cause of action solely on the fact of the collision. Thus: “3. On 20 March 2010 at around 0019 Hrs. while the aforesaid Power Barge 102 is docked and stationed at Layag Wharf, Cagayan de Oro City, defendant’s vessel –– MV Iligan, piloted by a certain Captain Henry Suntay and assisted by port pilot Captain James Yabut, hit and rammed Power Barge 104”; HPC did not allege as cause of action the result of the administrative investigation conducted by the BMI. Indeed, HPC admittedly filed the present court action without awaiting the findings and decision of the BMI and the Philippine Coast Guard concerning the docking incident. In fact, HPC admits so much in its complaint: “10. During the hearing of the twin Marine Protests before the Board of Marine Inquiry (BMI), both parties failed to settle amicably and decided to proceed with the presentation of their respective evidences and witnesses. The proceedings before the BMI are administrative in nature and this quasi-judicial body has no jurisdiction to award damages. To date, said Marine Protest remains unresolved despite plaintiff’s motion for its early resolution”; Clearly, therefore, HPC chose to have the trial court directly hear and resolve the issue of negligence tendered by Nemo Shipping’s denial of the allegation in its answer.

HPC assumed, therefore, the burden of proving in court that the captain and crew of MV Iligan acted negligently during the docking maneuvers. HPC cannot discharge that burden by simply presenting a copy of the subsequent findings and decision of the BMI and the Philippine Coast Guard. Nor could HPC comfort itself that it may be deemed to have amended its complaint and modified its cause of action when it presented in evidence copies of those administrative findings and decision.11 The rule on implied amendment cannot apply because Nemo Shipping in fact formally objected to HPC’s introduction of the findings and decision of the BMI and Philippine Coast Guard.12 Parenthetically, it could very well have happened that Nemo Shipping did not appeal the decision of the BMI and the Philippine Coast Guard to the Department of Transportation and Communication thinking that it would have the opportunity to absolve itself of the charge of negligence during the hearing before this court. And the events proved it correct. The HPC cannot also make use of the transcripts of stenographic notes of the testimonies that Capt. Suntay and Capt. Yabut gave before the BMI. Nemo Shipping objected to the admission of those transcripts for being hearsay. HPC did not establish during the trial that Capt. Suntay and Capt. Yabut were deceased or unable to testify, warranting the presentation in evidence of their testimonies before the BMI.13 3. Besides, the testimony of Mr. Torres, the chief mate of MV Iligan who transmitted Capt. Yabut’s commands

to the engine room, is undisputed. These commands were inadequate to reverse the vessel’s speed and momentum as it moved towards the wharf. Thus: Q: And do you remember the commands that Harbor Pilot Yabut issued as you neared the Layag Wharf? A: Yes. After he boarded the vessel, he issued the command “slow ahead engine.” Q: What was the speed of the vessel when he gave that command? A: About one knot. Q: What is the equivalent of that in terms of kilometers? A: 15 to 29 kilometers per hour. Q: And at the time Mr. Yabut gave that command, how far was the vessel from Layag Wharf? A: She was about 200 meters from the wharf. Q: And when the command “slow ahead engine” was given, how did the vessel respond? A: The vessel slowed down. Q: What command did Capt. Yabut give after the first? A: He said, “dead slow ahead.” Q: What did that mean? A: The vessel was to go even slower. Q: How far was the vessel from the Layag

Wharf when that command “dead slow ahead” was given? A: She was approximately 100 meters from the wharf. Q: And how did the vessel respond to the command “dead slow ahead”? A: It slowed down some more. Q: After the “dead slow ahead” command, what command did Capt. Yabut next give, if any? A: He commanded, “engine stop.” Q: What did that mean? A: It meant stopping the power that moved the vessel. Q: Did that mean engine shut down? A: No. It meant stopping the vessel’s propellers. Q: After he gave that command “engine stop,” did the propellers continue to move? A: No, sir. They stopped. Q: How far was the vessel from the power barge when Capt. Yabut gave the command “engine stop”? A: About fifty meters. Q: What was the rate of travel of the vessel when Capt. Yabut gave the command “engine stop”?

A: Less than one knot. Q: You said that the vessel was moving parallel to the wharf when Capt. Yabut gave the command “stop engine.” Did he give any other command? A: He ordered, “drop anchor.” Q: How soon did he give that command after the “stop engine” command? A: About three to four seconds later. Q: When he gave the command “drop anchor,” how far was the MV Iligan from the HPC power barge? A: Approximately 15 meters to 20 meters. The vessel still had momentum. Q: What response did the vessel make after the command “drop anchor”? A: The vessel further slowed down.14 (underscoring supplied) Evidently, Capt. Yabut’s delayed commands caused MV Iligan to ram the power barge. He miscalculated during the maneuvers of the vessel its speed and distance from the Layag wharf. As Mr. Torres testified: Q: As an experienced mariner, would you have given the same orders that Harbor Pilot Yabut gave during the docking of MV Iligan on March 20, 2005? A: No, sir. Q: What would you have done under those

same circumstances? A: I would have first put to test the capacity of the vessel’s twin engine before approaching the pier of Layag Wharf. Q: After testing the engine, what would you have done? A: I would have given the standard commands. First, “slow ahead,” followed by “drop anchor,” then “engine stop.” Q: Why drop the anchor before stopping the engine? A: The vessel had a momentum; dropping the anchor would have stopped it. Q: To what do you account the accident? A: Harbor Pilot’s error. Q: Why do you blame the harbor pilot? A: He approached the wharf with too much speed. He should have reduced the vessel’s speed before approaching the dock. I think he miscalculated the distance and speed of the vessel.15 (underscoring supplied) HPC did not present evidence to controvert the chief mate’s testimony. Based on it, the harbor pilot clearly did not observe that degree of care, precaution, and vigilance that the circumstances demanded. Capt. Yabut should, therefore, be held personally liable for the damages caused to the power barge. Section 11(1), Article III of PPA Administrative Order 03-85 supports this conclusion, thus:

SEC. 11. Control of vessels and liability for damage. –– On compulsory pilotage grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize damage. Section 31, Article V of administrative order provides:

the

same

SEC. 32. Duties and responsibilities of the Pilot or Pilot’s Association. –– The duties and responsibilities of the Harbor Pilot shall be as follows: x x x

x x x

x x x

f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out his order. (underscoring supplied) In Far Eastern Shipping Company v. Court of Appeals,16 the Supreme Court ruled that a harbor pilot is personally liable for damages arising from his neglect

in maneuvering a vessel under his command. Thus: In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of a duty constitutes a maritime tort. In common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of the pilot accepted by a vessel compulsorily. The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. (underscoring supplied) 4. HPC of course argues that, even with the harbor pilot’s presence, Capt. Suntay remained in full control and command of MV Iligan, citing Section 11(2), Article III of PPA Administrative Order 03-85. Thus: The master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the harbor Pilot on board. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against the Master. Such liability of the owner or master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. (underscoring supplied)

But the overall responsibility of the master of the vessel should be reconciled with the specific responsibility of the harbor pilot for assuming control of the command of the ship for the purpose of maneuvering the vessel and berthing it at the wharf. The rules provide that the harbor pilot is liable for any damage “due to his negligence or fault”17 and “his responsibility shall cease at the moment the master neglects or refuses to carry out his order.”18 Evidently, since HPC bears the affirmative of its action, it had the burden of proving that Capt. Yabut gave the correct commands but MV Iligan’s crew failed to obey them, resulting in the accident. HPC could have also proved that, although Capt. Yabut gave patently wrong commands, the master of the vessel had the opportunity to countermand them. Here, however, HPC failed to present evidence establishing either of these propositions. All that HPC has proved in this case is that the proximate cause of the ramming of the power barge was Capt. Yabut’s negligence, he having been in command and control of the vessel, when she negotiated the waters approaching the wharf. HPC of course claims that the proximate cause of the accident was MV Iligan’s engine failure during the docking maneuver. But, again, HPC did not present evidence to establish this claim. Actually, Philippine Coast Guards’ records show that the vessel had been seaworthy before, during, and after the incident. MV Iligan, said the certificate of inspection, “has been duly inspected in accordance with existing regulations and found to have complied with the requirements regarding the condition of the hull, machinery, navigational, fire-

fighting

equipment, appliances.”19

manning

and

life-saving

5. Besides the Layag Wharf is a public berthing place, built for use by self-propelled vessels like MV Iligan. Indeed, the wharf supported substantial traffic of cargo and passengers for Cagayan de Oro City. Consequently, non-propelled vessels had no business berthing permanently at the wharf to perform some other service. Yet HPC permanently lashed its power barge 102, a nonpropelled vessel, to such busy wharf to supply electricity to the Mindanao power grid. Mr. Canto of HPC confirmed this during his testimony: Q: So this power barge was non-propelled, is that right? A: Yes, sir. Q: It was non-propelled because it was not equipped to navigate the water on its own power, right? A: Yes. Q: You had to tow that barge, using another boat, in order to move it, is that right? A: Yes. Q: Yet, knowing that your power barge was non-propelled, you moored it to the Layag Wharf, is that right? A: Yes. Q: You are familiar with Layag Wharf? A: Yes, sir.

Q: You know for a fact that Layag Wharf was being used for loading and unloading passengers and cargoes, is that right? A: That’s what I observed.20 xxx

xxx

xxx

Q: Since when had your power barge been moored at Layag Wharf? A: From way back in 2003. Q: Your purpose in berthing the power barge alongside that wharf was to supply electricity to the Mindanao Grid in the long term, is that right? A: Yes. Q: So in other words, you berthed your barge on that wharf not for the purpose of loading or unloading cargoes but to supply electricity to the area on a long-term basis, is that correct? A: Yes.21 Clearly, when HPC placed its power barge alongside the wharf, it voluntarily assumed the risk of being hit or rammed by vessels that frequently maneuvered around the wharf to get a berth. Under the doctrine of assumption of risk, HPC is barred from recovering damages. Thus: A plaintiff who voluntarily assumes a risk of harm from the negligent or reckless conduct of

the defendant cannot recover for such harm. The defense may arise where a plaintiff, by contract or otherwise, expressly agrees to accept a risk of harm arising from the defendant’s conduct, or where a plaintiff who fully understands a risk of harm caused by the defendant’s conduct, or by a condition created by the defendant, voluntarily chooses to enter or remain, or to permit his property to enter or remain, within the area of such risk, under circumstances manifesting his willingness to accept the risk.22 (underscoring supplied) What is more, although HPC lashed its power barge permanently to that busy commercial wharf, it took no steps to protect the barge from the constant maneuvering of vessels that docked in and out of the wharf. It did not secure insulating posts or adequate rubber bumpers on its vulnerable sides. Mr. Canto of HPC admitted this. Q: It was common for ordinary boats to load and unload cargoes and passengers at that wharf and then leave as soon as their businesses were done? A: Yes. Q: So when you planted your power barge alongside that wharf, with intent to stay long and practically become a part of the wharf itself, did you take the precaution of guarding your hull against those maneuvering boats? A: Actually, we planned to move the barge inward near HPC’s land-based plant in Cagayan

de Oro City but the mooring area had not yet been completed. Q: Meantime, did you take steps to protect your barge at the wharf from being rammed by incoming and outgoing boats with wooden posts lashed together to served as its fenders? A: No, sir, because the PPA did not allow us to build structures or posts to protect our power barge. Q: Yet, you maintained yourself there? A: Yes. The record shows that HPC placed only two rubber tires along the length of the vulnerable side of its power barge.23 These were clearly insufficient and were unable to fully absorb the bump caused by Capt. Yabut’s faulty maneuvers. 6. In its complaint, HPC claims more or less P1 million as actual damages. In the list of damages and incidental loss,24 NPC estimated a total of P1 million as damages, broken down as follows: MATERIAL 1. 3-INCHES ROPE 2. SLUDGE OIL IN THE TANK 3. STEEL PLATE 1”X4’X8’ 4. INNER BEAM SUPPORT 5. UNDERWATER

3 ROLL 630 LTRB

135,000.00 1,575.00

5 SHT

50,000.00

2 LGNT

25,000.00

EPOXY

3 KIT

54,000.00 P265,575.00

GENERATION LOST 1. POWER BARGE 104 2. POWER BARGE 102

112,000 KWH 6,480 KWH

240,000.00 12,960.00

3. GEN. SANTOS DIESEL 4. POWER PLANT

1,963 KWH

3,926.00 P256,886.00

ESTIMATED COST FOR THE REPAIR OF DAMAGE PORTION

P 477,539.00 SAY P 1,000,000.00

But as HPC’s complaint admits, the above consists of mere estimates of the damages and incidental losses that it suffered. As it happened, it did not present proof of its actual damages and losses. Admittedly, HPC did not bother to have the alleged damage that its power barge suffered immediately repaired. Such damage being slight, HPC operated the power barge for months and waited for the time when she was scheduled for drydocking and general repairs. Consequently, HPC never established the specific injury that the bumping incident

supposedly inflicted on its barge. The only evidence HPC presented was its contract of general repair25 with Naseco and a voucher for P6,775,000.00

showing

that it partially paid 26 P6,775,000.00 to Naseco for the dry-docking and repair of its barge. But, in the first place, HPC’s contract of repair with Naseco shows on its face that the repair had nothing to do with the supposed damage that the barge suffered from the bumping by MV Iligan. The contract shows that the damage to be repaired was caused by typhoon “Ruping” that struck Naga, Cebu on November 13, 2003. In fact, its first whereas clause states: WHEREAS, in view of the urgent need to repair Power Barge No. 104 which was damaged on November 13, 2003, when typhoon “Ruping” struck Naga, Cebu; to put the same back into commercial operation, HPC requested quotation from CONTRACTOR (Naseco) who has the only dry-docking facilities in the Philippines suited for this type of Barge due to her size, aside from the fact that it is also a government-owned and controlled corporation. (underscoring supplied) Basic is the rule that damages must not only be capable of proof, it must be actually proved with a reasonable degree of certainty.27 Damages cannot be presumed or be based on flimsy and non-substantial evidence, nor upon speculation, conjecture or guesswork.28 Here, HPC failed to prove the damages with reasonable certainty.

WHEREFORE, in view of the above, the Court renders judgment, dismissing the complaint. It also dismisses Nemo Shipping’s compulsory counterclaim for insufficiency of evidence to prove it. SO ORDERED. It used to be that decisions did not employ headings. Today, however, a number of justices and judges have begun using headings to identify sections of their decisions. This is an important development because headings serve as guideposts to readers especially in ponderous decisions. Any device that improves the level of communication from the writer to the reader is most welcome.

Writing Exercises A government-owned forwarding company shipped a cargo of powdered milk from Manila to Davao City on board the defendant shipping line’s vessel. The goods did not reach their beneficiaries, however, prompting the forwarding company to file an action for damages against the shipping line. The only issue presented in the case is whether or not defendant’s vessel delivered the cargo of milk to plaintiff’s consignee in Davao City. The trial judge wrote a decision in this maritime case, reproduced at the end of this book in Appendix C. Probably, the trial judge thought that he had to summarize in his decision all the evidentiary details that the transcript of stenographic notes grinded out. This is quite unnecessary. Applying what you learn, see if you can make the decision leaner without sacrificing the purpose of the statements of the case and the facts. The decision has been edited to protect the privacies of the persons involved and to make the material suitable for study.

1Exhibit D. 2Exhibit E. 3Exhibit H. 4Exhibit G. 5Exhibit I. 6Exhibit K. 7Exhibit L. 8Exhibit G. 9Exhibit H. 10Exhibits I and J. 11Section 5, Rule 10. 12See Defendant’s Comment on the Formal Offer of Evidence, September 16, 2004. 13Section 47, Rule 130. 14TSN, November 25, 2004, pp. 10-18. 15TSN, November 25, 2008, pp. 25-26. 16297 SCRA 30. 17Section 11(1), Article III of PPA Administrative Order 03-85. 18Section 32(f), Article V of PPA Administrative Order 03-85. 19Exhibit 7-B. 20TSN, June 30, 2008, pp. 18-19. 21TSN, June 30, 2008, pp. 19-20. 2257 Am Jur 2d, p. 663. 23TSN, November 25, 2008, p. 21. 24Exhibit B.

25Exhibit K. 26Exhibit L. 27Choa Tek Hee v. Phil. Publishing Co., 34 Phil. 447; Sanz v. Lavin Bros., 6 Phil. 299; Rubiso v. Rivera, 41 Phil. 39; Heredia v. Salinas, 10 Phil. 157; Song Fo & Co. v. Hawaiian-Philippine Co., 34 Phil. 447; Siguenza v. CA, 137 SCRA 510; Refractories Corp. v. IAC, 176 SCRA 539. 28Hua Ling Electrical Equipment v. Reyes, 145 SCRA 713; Danao v. CA, 154 SCRA 447; Perfecto v. Gonzales, 128 SCRA 635; Raagas v. Troya, 22 SCRA 839.

APPENDIX A Republic of the Philippines Regional Trial Court National Capital Judicial Region Pasig City PEOPLE OF THE PHILIPPINES, Plaintiff, – versus – ROMULO TAKAD,

Crim. Case No. 12345-H Violation of R.A. 6539 (Anti-Carnapping Act)

Accused. x----------------------------------------x

INFORMATION The prosecution, through the undersigned Public Prosecutor, charges Romulo Takad with the crime of violation of R.A. 6539 (AntiCarnapping Act), committed as follows: On or about November 21, 2007, in Pasig City and within the jurisdiction of this Honorable Court, the accused, with intent to gain and without the knowledge and consent of the owner, did, then and there willfully, unlawfully and feloniously take, steal and drive away a Kawasaki motorcycle with sidecar, colored black, bearing plate No.

TU-9952, with a value of P80,000.00, belonging to Bayan Development Corporation, represented by Zenny G. Aguirre, to the damage and prejudice of the latter. Contrary to law. Pasig City, November 22, 2007. Isidro T. De Leon Prosecutor III I certify that this information is filed pursuant to Section 7, Rule 112 of the Rules on Criminal Procedure, as amended, the accused having opted not to avail of his right to a preliminary investigation and not having executed a waiver of Article 125 of the Revised Penal Code. Ismael T. Duldulao Prosecutor III Subscribed and Sworn to before me this 22nd day of November, 2007 in Pasig City. David P. Collantes Asst. City Prosecutor By the authority of the City Prosecutor under Office Order No. 2001-021 dated June 21, 2006. Andres C. Ranjo Prosecutor III

Approving Prosecutor Witnesses: 1. Zenny G. Aguirre, 54 Helena St., Teresita Vill., Marikina City 2. Carlos P. Parlade, 84 West Road, Maybunga, Pasig City 3. Mario S. Mankas, 94 West Road, Maybunga, Pasig City Bail Recommended: One Hundred Eighty Thousand Pesos (P180,000.00)

Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region Branch 123 Pasig City PEOPLE OF THE PHILIPPINES Plaintiff, - versus -

CRIM. CASE NO. 12345H

ROMULO C. TAKAD, Accused. x----------------------------------------x TRANSCRIPT of stenographic notes taken at the hearing on January 7, 2004 before the HON. LORNA S. ACOSTA. Appearances:

Prosec. ISIDRO T. DE LEON, Public Prosecutor. Atty. PAULO A. CRUZ, Counsel for the Accused ZENNY G. AGUIRRE – Prosecution witness COURT: Call the witness. INTERPRETER: Do you solemnly swear that the evidence you will give in this trial shall be the truth, the whole truth, and nothing but the truth, so help you God. A. I do, ma’am. INTERPRETER: State your name and personal circumstances. A. ZENNY AGUIRRE, 33 years old, employee of Bayan Development Corp., and residing at 54 Helena St., Tanza Village, Marikina. PROSEC. DE LEON: The witness is being presented to testify on the loan obtained by Ma. Teresa Lacsamana, the live-in-partner of the accused, respecting the tricycle subject of this case; also on the whereabouts of the tricycle and how the accused took it while in possession of a certain Carlos Parlade, the assignee of the tricycle. May it please your honor? COURT: Proceed. PROSEC. DE LEON: (DIRECT EXAMINATION) Q. Ms. Aguirre, what is your work? A. I am an account officer of Bayan Development Corporation or BDC. Q. Since when have you been with the BDC? A. Since 1995. Q. What kind of business is BDC doing? A. It extends loans to Sakbayan members and the members of Tricycle Operators and Drivers Associations or TODA. Q. Do you remember having extended a loan to Ma. Teresa

Lacsamana? A. Yes, sir. Q. When was that? A. Sometime in May 2003. Q. How much loan did she get? A. It was a group loan of P480,000.00 but her share in it was P80,000.00. Q. Do you have evidence of that loan? A. We have the promissory note, the chattel mortgage, and the Kasunduan. Q. I am showing to you a copy of a Kasunduan, is this it? A. Yes, sir. Q. Now on the third page or this Kasunduan, there are six “borrowers,” will you kindly point to us the name of Ma. Teresa Lacsamana? A. This is her name. PROSEC. DE LEON: (Witness pointing to the document.) We request that the document be marked as Exhibit “A.” COURT: Mark them. PROSEC. DE LEON: Whose signature is this on top of the typed name Ma. Teresa Lacsamana? A. That is her signature. Q. How did you know that it is her signature? A. I was present when she signed that document. Q. Are you authorized to represent BDC before this Court? A. Yes, sir, I have a written authority. Q. What happened after you granted that loan to Ms. Lacsamana? A. We released the tricycle to her. That was the time I met the

accused Takad because he came with her to get the tricycle. Q. What was the paying period of the loan? A. Thirty months, sir. Q. Did Ms. Lacsamana comply with the paying period? A. No, sir, sometimes she failed to pay. Q. When was her last payment? A. If I am not mistaken her last payment was for the month of July 2007. Q. What action did the BDC take when Ms. Lacsamana defaulted in her loan after July 2007? A. BDC pulled out the tricycle from her on October 2, 2007. Q. What was its basis for pulling out the tricycle? A. Under the Kasunduan, if the borrower was unable to pay, the tricycle could be pulled out from him. Q. What did you do with the tricycle? A. We gave it to the treasurer of the group, Mr. Ricardo Marasigan, for him to manage. Q. By the way, Ms. Aguirre, in whose name was the Official Receipt and the Car Registration of the tricycle registered? A. In the name of Ma. Teresa Lacsamana. Q. Are these the copies of the CR and OR, previously marked as Exhibit “B” and “B-1”? A. Yes, sir. Q. For how long was the tricycle placed under the temporary management of the treasurer of the group? A. More or less 15 days. Q. After 15 days, what happened? A. I agreed with Ms. Lacsamana to give her until October 17 within

which to redeem the tricycle and, if not, we will permanently repossess the tricycle. Q. Did Ms. Lacsamana comply with her undertaking? A. No, sir. Q. What did you do with the tricycle? A. On October 18 we got the tricycle from the treasurer of their group. Q. What happened after that? A. October 18 was a Friday. On October 22, Ms. Lacsamana and Mr. Takad went to our office. They wanted to pay the outstanding balance of her loan so we could release the tricycle. Q. Did you allow them to pay her outstanding balance? A. No, sir. Q. What happened after you did not allow them to pay her outstanding balance on the loan? A. Takad said, “Huwag na huwag kong makikita ang tricycle sa Pasig.” Q. What did you do with the tricycle? A. We kept it for a while until November 20. Q. And what did you do with it after November 20? A. We gave the tricycle to Carlos Parlade, the new assignee. Q. Did you have documents to show this assignment to Mr. Parlade? A. None because, before we could draw up one, at 1:00 o’clock on the early morning of November 21, Mr. Parlade told me that the tricycle was missing. He called the office in the morning. Q. What did you do about it? A. I went to see Mr. Parlade and asked him for details regarding how the tricycle was lost.

Q. What did he tell you? ATTY. CRUZ: Asking for hearsay evidence, Your Honor. PROSEC. DE LEON: He already testified that she went to Carlos Parlade and asked him for details. My question is a follow up, Your Honor. COURT: Answer. A. He told me that he saw the tricycle being driven away by someone. Q. Did Mr. Parlade tell you who stole the tricycle? A. He described the man as small, with short hair, and with a face towel on his shoulder. Q. Do you remember having given a statement to the police? A. Yes, sir. Q. Showing to you this statement dated November 21, 2007, is this the statement that you mentioned? A. Yes, sir. Q. There is a signature on top of the word “nagsasalaysay,” do you know whose signature it is? A. My signature. PROSEC. DE LEON: We request that her statement be marked as Exhibits “C” for the prosecution. COURT: Mark them as requested. PROSEC. DE LEON: Q. Apart from that statement, do you remember having given any other with respect to this incident? A. Yes, sir. Q. I’m showing to you this statement dated November 22, previously marked as Exhibit “D,” is this the other statement you referred to?

A. Yes, sir. Q. Whose signature is that over the name Zenny Aguirre? A. My signature, sir. Q. How much was the value of the vehicle? A. P80,000.00. Q. Where is it right now? A. I do not know where the tricycle is right now. PROSEC. DE LEON: That is all. COURT: Cross. ATTY. CRUZ: (CROSS EXAMINATION) Q. The Certificate of Registration of the tricycle dated May 29, 2007 is in the name of Ma. Teresa Lacsamana and the LTO Official Receipt of the same date is also in her name. Are these the evidence of her ownership of the tricycle? A. Yes, sir. Q. I understand that your company, BDC, loaned to Ms. Lacsamana the money that she used to buy the tricycle, is that correct? A. Yes, sir. Q. She was to pay BCD in daily installments according to the Kasunduan, is that right? A. Yes, sir. Q. Did Ms. Lacsamana execute a chattel mortgage on the tricycle in favor of BDC? A. Yes, sir. Q. Is the execution of the chattel mortgage part of the Kasunduan? A. Yes, sir, that is one of the documents. Q. When she was not able to pay the installments, it was BDC that took the tricycle from Ms. Lacsamana?

A. Yes, sir, with the group. Q. I understand that at the time you took the tricycle from her, Ms. Lacsamana asked you not to take the tricycle yet but to give her a chance to pay her arrears? A. Yes, sir. Q. But you did not grant her request? A. Yes, sir. Q. Did you get a court order transferring ownership of the tricycle from Ms. Lacsamana to BCD before you took the tricycle? A. No, sir. Q. Did you get a court order authorizing you to take the tricycle from Ms. Lacsamana? A. No, sir. Q. You took it from her because she could not pay her debt, is that right? A. Yes, sir. Q. Did you make an effort to buy the tricycle from Ms. Lacsamana before it was stolen? A. No, sir. Q. It is your understanding that when she did not pay her debt, the ownership of the tricycle is automatically transferred to BDC, is that right? A. No, sir, since she had not paid her obligation, BDC still owns the tricycle. Q. Let us make it clear, you said that BDC loaned Ms. Lacsamana the money, which she used to buy the tricycle; it was not BDC that bought the tricycle, it was Ms. Lacsamana who bought the tricycle? A. Yes, sir. Q. Who is the owner of the tricycle?

A. Ma. Teresa Lacsamana is the owner of the tricycle. But the money she used in buying the tricycle was the money of BDC. Q. In other words, as you understood it, if she did not pay the loan, the BDC becomes the owner of the tricycle, correct? A. Yes, sir. Q. Because of your understanding, you did not bother to file any action in court to transfer ownership of the tricycle from Lacsamana to BDC, is that right? A. Yes, sir. Q. According to you, the tricycle was stolen from near the house of Carlos Parlade at 1:00 o’clock of November 21, 2007. Since you were not there when it happened, you merely heard about it from Mr. Parlade is that correct? A. Yes, Sir. Q. Mr. Parlade told you about it at 7:00 o’clock of that same morning, is that right? A. Yes, Sir. Q. Mr. Parlade told you that he and the driver of the tricycle, saw a man driving away with the tricycle, is that right? A. Yes, Sir. Q. He also told you that, unfortunately, he did not recognize the man because he was driving away, is that right? A. They did not know him but then he recognized him because they faced each other. Q. But Mr. Parlade told you that he did not know the accused Takad personally? A. Yes, Sir. Q. Did Mr. Parlade tell you that he was able to see the man’s appearance as well as his face?

A. Yes, Sir. Q. And when you heard from Mr. Parlade that the tricycle had been stolen, you thought right away that it was the accused Takad who did it, is that right? A. Yes, Sir. That formed in my mind. Q. You thought that the thief was accused Takad because he warned you against his seeing the tricycle in Pasig, is that right? A. Yes, Sir. Q. And you told Parlade about who you thought took the tricycle, is that right? A. Yes, Sir. Q. And, based on your description of accused Takad, Mr. Parlade agreed with you? A. Yes, Sir. Q. You said that after the BDC finally pulled out the tricycle from Mr. Marasigan on November 18, Ms. Lacsamana and accused Takad went to BDC and offered to redeem the tricycle by paying all the arrears on it, is that right? A. Yes, Sir. Q. Under what authority did you refuse Ms. Lacsamana the right to redeem her tricycle by paying all her arrears? A. I asked my boss if we would allow her to get it back. We had reports that the tricycle might be dismantled and its parts sold (kahuyin). My boss answered in the negative. The accused had a reputation for dismantling tricycles in Palatiw. Q. You said that, after you refused redemption of the tricycle, accused Takad said, “Wag na wag kong makikita ang tricycle na ‘yan sa Pasig.” And it was this remark that made you conclude that he was the one who stole the tricycle. Is that right? A. Yes, Sir.

Q. Are you sure that all he said was, “Wag na wag kong makikita ang tricycle na ‘yan sa Pasig.” That is all he said? A. Yes, Sir. Q. Did he say, in addition, “Kung makikita ko ‘yan sa Pasig, nanakawin ko ‘yang tricycle na ‘yan.” Did he say that? A. No, Sir. Q. If he did not say “kung makikita ko ‘yan sa Pasig, nanakawin ko ‘yang tricycle na ‘yan,” the idea that he meant to steal the tricycle in Pasig is only your idea. Is that right? A. Yes, Sir. Q. He could have very well meant that “kung makikita ko ‘yan sa Pasig, idedemanda ko kayo ng carnapping dahil wala kayong karapatang kunin ang tricycle sa kanya.” That is what he could have meant. Is that right? A. Maybe, Sir. ATTY. CRUZ: That is all, Your Honor. COURT: Re-direct PROSEC. DE LEON: No redirect, Your Honor. (CAPTION OF CASE OMITTED) TRANSCRIPT of stenographic notes taken at the hearing of the above entitled case on January 27, 2008. COURT: You may call your witness. PROSEC. DE LEON: May we call to the witness stand Mr. Carlos Parlade. COURT: Swear in the witness. INTERPRETER: Do you solemnly swear that the evidence you will give in this trial shall be the truth, the whole truth and nothing but the truth, so help you, God. A. I do, ma’am.

INTERPRETER: State your name and personal circumstances. A. Carlos Parlade, 50 years old, married, construction worker, presently residing at #84 West Road, Maybunga, Pasig City. PROSEC. DE LEON: His testimony is being offered to prove that BDC gave the tricycle subject of this case to Mr. Parlade; that when he went home sometime on November 21, 2007, he saw the accused steal the tricycle; he will identify his statement and the accused in this case and give other relevant statements. Q. Mr. witness, where were you on November 21, 2007 at 1:00 o’clock in the morning? A. I was in my house. Q. Where is your house located, Mr. Parlade? A. At 84 West Road, Maybunga, Pasig City. Q. On November 21, 2007 at around 1:00 o’clock in the morning, do you remember any unusual incident that happened in that place? A. Yes, sir. Q. And what was that unusual incident? A. I lost a tricycle. Q. Where did this tricycle come from? A. From BDC, sir. Q. What were you doing at that time? A. I had just entered the house then. Q. And what were you doing then? A. Since it was raining and I was wet, I changed my clothes. Q. What did you do after that? A. I went out of the house to chain the tricyle. Q. Were you able to chain the tricycle after you went out of your house?

A. No, sir. Q. Why not? A. Because I saw someone pushing the tricycle away. Q. When you said “tinutulak niya ang tricycle,” to whom are you referring to? A. The person who got the tricycle. Q. Is that person who got the tricycle in Court? A. Yes, sir, he is the one. INTERPRETER: Witness pointed to a person seated on the bench who, when asked, gave his name as Romulo Takad. PROSEC. DE LEON: After you saw the accused pushing the tricycle away, what did you do? A. I shouted at him. I said “Hoy, bat dala-dala mo iyang motor.” Q. What did the accused do, if any? A. He turned and faced me. Q. Were you able to recognize him? A. The face, I recognized him. Q. Would you please describe the place where this happened? A. A light from the post lighted the place. The tricycle was five meters from my house. Q. What kind of light was that, Mr. witness? A. It was a big streetlight. Q. You said that the tricycle was five meters from your house when you saw the accused pushing it. How far was the accused from your house? A. Also five meters, sir. Q. After you shouted at him, what did the accused do? A. He faced me, kicked start the engine, and then drove away.

Q. What did you do next, if any? A. I ran after him but since the tricycle ran so fast, I was not able to catch up with it. Q. What did you do after that, if any? A. I reported the theft of the tricycle to Ms. Zenny Aguirre and we looked for the tricycle the whole night. Q. Were you able to locate it? A. No, sir. Q. Did you execute an affidavit with regards to this case? A. Yes, sir. Q. I am showing to you a sworn statement earlier marked as Exhibit E, is this your statement? A. This is the one. Q. Whose signature is this over the name Carlos Parlade? A. That is my signature. PROSEC. DE LEON: That would be all, Your Honor. COURT: Cross. ATTY. CRUZ: Your affidavit says that you appeared before the police at 1:30 p.m. on November 21, 2007, is that right? A. Yes, sir. Q. The tricycle was stolen in the early morning of November 21, and you gave your statement to the police in the afternoon of the same day, is that right? A. Yes, sir. Q. The police investigator asked you the questions and then you gave your answers, is that right? A. Yes, sir. Q. All the answers that appear on this sworn statement were exactly

as you told the police, is that right? A. Yes, sir. Q. And did you read the sworn statement before you sign it? A. I was asked to read it. Q. You signed it because you found nothing wrong with it? A. Yes, sir. Q. You said in your sworn statement that you are a member of the Maybunga Security Force, is that right? A. Yes, sir. Q. Your work involved looking for persons who commit crimes in your barangay, is that right? A. Yes, sir. Q. Were you aware then that it was important for you, as a witness to a crime, to give a good description of the person whom you saw stole your tricycle? A. Yes, sir. Q. You said that you saw his face. Did you see it clearly? A. Yes, sir. Q. Did you note that he had fair or light complexion? A. Yes, sir. Q. You also naturally noted that he had short crop hair, is that right? A. Yes, sir. Q. You also noticed that he had pronounced jaws? A. Yes, sir. Q. But, although you noted these details of his face, you still did not tell the police when you reported the crime that he had fair or light complexion, is that right? A. Because the police did not ask me those details.

Q. But, since you knew because of your experience that those details were important to the police, when you were not asked, you did not bother to still give the police your description of the face of this person? A. I was not able to remember those. Q. Please go over your sworn statement and tell us if you gave to the police those descriptions of the accused that you mentioned? A. I said here, in answer to #14, “medyo maigsi ang buhok.” Q. But the other description that he is of light complexion and has pronounced jaws, did you put that in your statement? A. No, sir. Q. I read from your sworn statement that you arrived at your house at around 1:00 o’clock in the morning and you said that you saw no one around, is that correct? A. Yes, sir. Q. You mean that the place was empty of people? A. Yes, sir. Q. And you parked the tricycle on the sidewalk next to your house? A. Yes, sir. Q. You said that, as you went out of your house, you saw the accused pushing the tricycle away, is that right? A. Yes, sir. Q. Now, you said that when you saw the accused with the tricycle, he was five meters from you, is that right? A. Yes, sir. Q. In other words, he was somewhat near you? A. Yes, sir, “medyo malapit siya.” Q. Now, you said “medyo malapit siya,” please read what you said in your sworn statement about the distance of the accused from you at

that time. A. “Nang makita ko medyo malayo na ang tricycle na itinutulak ng isang tao.” Q. You said when you testified that he was “medyo malapit” but you said in your affidavit, “medyo malayo,” which is correct? A. I said he was a bit far because he was five meters from me. Q. You said that you shouted at the man on the tricycle and he looked back but he suddenly started the motor and drove away with the tricycle, is that right? A. Yes, sir. Q. Since the purpose of the man was to flee from you, he merely glanced back, is that right? A. Hindi po, opo, medyo matagal po. Q. Opo, hindi po, what is really your answer? A. Opo, medyo matagal po. Q. After the taking of the tricycle, you spoke to Zenny Aguirre of BDC, is that right? A. Yes, sir. Q. And she told you that in October, Takad warned her against seeing the tricycle in Pasig? A. Yes, sir. Q. But when you saw Zenny, you had not yet met the accused Takad, is that right? A. Yes, sir. Q. I understand that you went back to the police station on November 21, at 5:30 in the afternoon? A. Yes, sir. Q. The police told you that Takad had been arrested and you have to come back and identify him, is that right?

A. Yes, sir. Q. When you went to the police station, they led you into a room and the investigator pointed out Takad to you, is that right? A. Yes, sir. Q. And he asked you if he was the one who took the tricycle? A. Yes, sir. Q. In other words, you were not shown the accused Takad in a police line up with other persons of the same built so you could try to pick him out as the tricycle thief? A. No, sir. Q. When you saw him at the police station, was his appearance and physical built the same as when you saw him take the tricycle? A. Yes, sir. Q. Is his appearance and built now the same as when you saw him take the tricycle on November 21, 2007. A. It seems he changed. Q. What change did you notice? A. He became fairer, now. Q. That is the only change you noticed? A. Yes, sir. Q. I notice that your answers to the questions are in Tagalog, are you familiar with the Tagalog language? A. Yes, sir. Q. When you say in Tagalog that “ang katawan ng tao ay manipis,” does that mean that he is slim? A. Yes, sir. Q. And when you say that his body is “katamtaman ang laki,” does that mean that he is medium built?

A. Yes, sir. Q. And when you say the body is “malapad,” that means that he is somewhat big? A. Yes, sir. Q. Will you please read to us from item 14 of your affidavit the description of the built of the person whom you saw stole the tricycle? A. “Answer: Medyo malapad ng konti ang katawan at medyo maiksi ang buhok.” ATTY. CRUZ: May I request the accused Takad to stand up. Will you agree with me that the body of the accused Takad, that the body is medium built only? A. I cannot tell. ATTY. CRUZ: (Talking to the accused) How tall are you? A. “5’5 ½” Q. What is your weight? A. 120 pounds. ATTY. CRUZ: That would be all. COURT: REDIRECT. PROSEC. DE LEON: No redirect, Your Honor. (CAPTION OF CASE OMITTED) TRANSCRIPT of stenographic notes taken at the hearing of the above entitled case on February 19, 2008. COURT: Swear the witness. INTERPRETER: Do you solemnly swear that the evidence you would give in this trial shall be the truth and nothing but the truth? WITNESS: Yes, I do. INTERPRETER: State your name and personal circumstances. WITNESS: Mario S. Mankas, 19 years old, jobless, residing at 66

West Road, Maybunga, Pasig City. COURT: Your witness. PROSEC. DE LEON. Your Honor, we are offering the testimony of this witness to prove that he witnessed a carnapping incident on November 21, 2007 and other matters in relation thereto. COURT: Proceed. PROSEC. DE LEON: (DIRECT EXAMINATION) Q. Mr. Mankas, on November 21, 2007 at around 2 a.m., do you remember where you were? A. I was playing computer at a neighbor’s house. Q. Do you remember any unusual incident that happened at that time? A. Yes, sir, I saw Kuya Carlos running after a tricycle. Q. Who is this Kuya Carlos? A. His full name is Carlos Parlade. Q. What did you do then? A. I also ran after the tricycle behind Kuya Carlos. Q. Where you able to see that person driving the tricycle? A. Yes, sir. Q. If he is in the courtroom could you point to that person? INTERPRETER: Witness pointed to a man wearing a beige T-shirt and maong pants, who gave his name as Romulo Takad. PROSEC. DE LEON: Q. What was your position in relation to the tricycle when you saw this man? A. I was four steps away from him. Q. Could you describe the place, whether or not it was lighted? A. It was lighted.

Q. In relation to this incident, do you remember having executed an affidavit? A. Yes, sir. Q. I am showing to you a Sinumpaang Salaysay, is this your affidavit? A. Yes, sir, it is the one. Q. Whose signature is this on top of the name Mario Mankas? A. It is mine. PROSEC. DE LEON: May I ask that the Sinumpaang Salaysay be marked as our Exhibit “F.” I think I have no more questions, Your Honor. COURT: Cross. ATTY. CRUZ: May it please, Your Honor. COURT: Proceed. ATTY. CRUZ: (CROSS-EXAMINATION) Q. Your name is Mario? A. Yes, Sir. Q. May I call you Mario? A. Yes, Sir. Q. Mario, your sworn statement says that you appeared before the police at 4:00 o’clock in the afternoon of November 21, 2003, is that right? A. Yes, Sir. Q. The police investigator asked you the question and then you gave your answer, is that right? A. Yes, Sir. Q. So, all the answers that appear in the sworn statement were exactly as you told them to the police investigator?

A. Yes, Sir. Q. How far was your neighbor’s house, where you played computer, from the house of your Kuya Carlos? A. About 10 meters, sir. Q. This house where you played computer was along West Road. Is that right? A. Yes, Sir. Q. The way I understand it, you were playing computer at the time the tricycle of Kuya Carlos was stolen? A. I just finished playing the computer. Q. So, what were you doing at the time the tricycle was stolen? A. I was washing my hands at the gate in the front yard. Q. So, where was the faucet located? A. Near the side of the gate. Q. When you were washing your hands, were you facing the road or were you facing the house? A. I was facing the road. Q. So, as you were washing your hands, you saw the tricycle and your Kuya Carlos running after it? A. Yes, Sir. Q. Do you know how to drive a tricycle? A. No, Sir. Q. Are you familiar with the speed of tricycle passing along West Road shortly after midnight? A. Yes, Sir. Q. What is the usual speed of tricycles passing West Road after midnight? A. “Medyo mabilis.”

Q. You said in your sworn statement that this tricycle was running very fast. Would you say that it was running at least twice the usual speed of tricycles running on that road after midnight? A. Yes, sir. Q. When you saw the tricycle, was the tricycle in front of you or it has already passed you? A. It was still in front of me. Q. And it was running, according to you at twice the speed of other tricycles? A. Yes, Sir. Q. Now, you said that you saw your Kuya Carlos running after the tricycle. Is that right? Q. So, how far was he behind the tricycle? A. About 9 to 10 meters away? Q. You said that the tricycle was running at a very fast speed. If the driver of the tricycle was driving very fast, you will agree with me that you only had a brief glance of the driver. Is that right? A. Yes, sir. Q. And apart from the fact that the tricycle was running at a very fast speed, you could not have seen much of the person driving it because, as you said in paragraph 5 of the affidavit, “hindi ko gaanong namukhaan dahil nakayuko ako.” Is that right? A. Yes, Sir. Q. Now, because you only had a glance of the man and because your head was bowed down, when you were asked by the police to describe the man on the tricycle, you could only describe his built. Is that right? A. Yes, Sir. Q. As he was moving away from you, did the driver wave his arms? A. No, Sir.

Q. Did he stand on the tricycle seat? A. No, Sir. Q. Did he swing his body to the right or to the left? A. No, Sir. Q. So, he sat still on the tricycle holding the steering bars as the tricycle sped away from you. Is that right? A. Yes, Sir. Q. That was how you saw him. Is that right? A. Yes, Sir. Q. Are you sure? A. Yes, Sir. Q. You merely had a glance at him, right? A. Yes, Sir. Q. Your head was bowed down. The man did not move but he just sat still holding the steering bars of the tricycle. Yet, you said in your affidavit that you were able to identify him partly by how his body moved? A. Yes, sir. Q. Now, you said in your affidavit that you were able to identify the man on the tricycle as the accused Takad because of the shape of his body? A. Yes, Sir. Q. Was the man on the tricycle that you saw a hunchback? A. No, Sir. Q. Did his body have an abnormal shape? A. None, Sir. Q. Was there anything about the shape of the body of the man on the tricycle that is different from the body of other men of the same size as

him? A. Yes, sir. Q. What was abnormal about his body? A. Medyo maskulado, sir. ATTY. CRUZ: May ask the accused to stand up and turn his back for the Court to observe whether his is a mascular person. PROSEC. DE LEON: Your Honor, that is way back year 2003 and today is already February 2004. The built of a man changes especially when he is in jail, Your Honor. ATTY. CRUZ: Well, Carlos Parlade testified that accused Takad had the same appearance during the taking of the tricycle as when he was in Court. Q. You also said that you identified the man on the tricycle by the shape of his nape or “batok”? A. Yes, Sir. Q. Was the nape of the man on the tricycle abnormally shaped? A. No, Sir. Q. So, it looks like the “batok” of other people. Is that right? A. Not really, Sir. Q. What is the difference between the “batok” of that man on the tricycle and the “batok” of other men? A. The nape of this man was longer. ATTY. CRUZ: Will the prosecution stipulate that the length of the nape of the accused is about 2 inches from the neckline of his T-shirt? PROSEC. DE LEON: We so stipulate. ATTY. CRUZ: Who brought you to the police station to give your statement? A. It was Kuya Carlos.

Q. He told you that you were going there to look at the person who stole the tricycle? A. Yes, Sir. Q. You were brought to the police station because you were going to look at the accused so you can identify him. Is that right? A. Yes, sir. Q. Did the police place the accused Takad on a line of several men who were more or less of the same built as he was? A. No, Sir. He was just sitting. Q. And when you entered the room, someone pointed the accused Takad to you. Is that right? A. Yes, Sir. Q. So, before you gave your statement to the police, you already had a good look at Takad? A. Yes, Sir. Q. So, when you were asked to describe the physical built of the person who stole the tricycle, Takad was there in the room with you. Is that right? A. Yes, Sir. Q. Because you were looking at him there, you were able to say that he was medium built. Is that right? A. Yes, Sir. Q. In that room? A. Yes, Sir. ATTY. CRUZ: That is all, Your Honor. PROSEC. DE LEON: No re-direct, Your Honor. (CAPTION OF CASE OMITTED) TRANSCRIPT of stenographic notes taken at the hearing of the

above entitled case on March 12, 2008. COURT: Swear in the witness. INTERPRETER: (swearing the witness) Do you solemnly swear that the evidence you will give in this trial shall be truth, the whole truth and nothing but the truth, so help you God? WITNESS: Yes, I do, Ma’am. INTERPRETER: State your name and personal circumstances. WITNESS: Romulo Takad, 43 years old, married, residing at 374 Villa Street, Palatiw, Pasig City. COURT: Proceed. ATTY. CRUZ: (DIRECT EXAMINATION) We are offering the testimony of the witness to belie the claim that he stole the tricycle subject of this case. Q. Mr. witness, do you know Teresa Lacsamana? A. Yes, Sir. She is my live-in partner. Q. Are you married? A. No, sir. Q. Do you know a tricycle with Plate No. TS-9952 that the information said you stole from the possession of Carlos Parlade? A. Yes, sir. Q. Do you know who owns that tricycle? A. Yes, sir. It belongs to Ma. Teresa Lacsamana, sir. Q. How do you know that she is the owner of the tricycle? A. Because I was with her when she got the tricycle from BDC. Q. Who represented BDC when you went there? A. Ms. Zenny Aguirre, sir. Q. Why were you there when Ms. Lacsamana took the tricycle? A. She told me to accompany her so I could drive it home.

Q. Ms. Aguirre testified that Ms. Lacsamana defaulted on her installment payments, is that true? A. Yes, sir. Q. And, because of that she said that BDC pulled out the tricycle from Ms. Lacsamana and turned it over to Mr. Ricardo Marasigan, the treasurer of their group. A. No, sir. Q. What is the truth? A. The truth is that we were the once who brought the tricycle to the house of Ricardo Marasigan. Q. Why did you bring the tricycle to the house of Mr. Marasigan? A. Because Ms. Aguirre requested us to bring it there. Q. What is the reason for that? A. In the meantime, the tricycle was to be in the care and custody of the treasurer of their group. Q. According to Ms. Aguirre the tricycle was pulled out by BDC from Ms. Lacsamana on November 18, 2006, is that true? A. No, sir. Q. What is the truth? A. The truth is that she took the tricycle from the treasurer of the group on October 18, 2006. Q. Were you and Ms. Lacsamana informed about the action of BDC before they pulled out the tricycle? A. No, sir. Q. Why do you remember that they pulled out the tricycle on October 18, 2006? A. Because there was a verbal agreement between Ms. Lacsamana and Ms. Aguirre that Ms. Lacsamana could redeem the tricycle by paying her arrears on October 17. Ms. Lacsamana mortgaged her car to

raise the money. Q. And, was Ms. Lacsamana able to pay what she owed on October 17, 2006? A. No, sir, because we arrived late at the office of BDC and it was already closed. Q. And, what did you do? A. On October 18, we went to the house of the treasurer of the group to request him to accompany us to BDC but we found out that the tricycle had already been taken from him. Q. And, did you go to BDC as you said you will? A. Yes, sir. Q. And, whom did you see there? A. Ms. Aguirre, sir. Q. And, what did you tell her? A. Ms. Lacsamana and I requested Ms. Aguirre to allow us to pay what was due on the tricycle. Q. And, what did she tell you? A. Ms. Aguirre would not allow us. Q. Did she tell you why she would not allow you? A. She said that her company did not want to give us the tricycle anymore because we did not have the means to pay the balance. Q. How much did Ms. Lacsamana owe BDC on the date you went there to redeem the tricycle? A. According to Ms. Aguirre it was more than P14,000.00. Q. And, did you have enough money to pay your balance of more than P14,000.00 at the time you went there? A. Yes, sir. Q. According to Ms. Aguirre after she declined Ms. Lacsamana’s

attempt to redeem the tricycle, you warned her that you should not see the tricycle in Pasig implying that you threatened to do something if that happened, is that true? A. No, sir. Q. Why? What was it that you told her concerning the tricycle? A. I pleaded with Ms. Aguirre that I hope I will not see the tricycle in our place because it was going to hurt us if we will see it there considering that we spent a lot of time and sweat looking after the tricycle and it would pain us so much to see it there. Q. And, what did Ms. Aguirre tell you after you told her what you said? A. Ms. Aguirre said, okay. Q. Between the time you spoke to Ms. Aguirre and the time that you were taken by police officers on November 21, 2007, did you see the tricycle in Pasig? A. No, sir. Q. Did anyone tell you among your friends or relatives having seen the tricycle in Pasig between the time you talked to Ms. Aguirre and the time you were taken by the police on November 21, 2007? A. None, sir. Q. Carlos Parlade testified that he saw you take the tricycle of Ms. Lacsamana away from near his house at 374 West Road, Maybunga, Pasig City, where it was parked at 1:00 o’clock in the morning of November 21, 2007. Mario S. Mankas also testified that at 2:00 o’clock in the morning of the same day he saw you driving away the tricycle from the house of Carlos Parlade. Now you were present when they testified about this? A. I was here, sir. Q. What can you say about these testimonies of Mr. Parlade and Mr. Mankas?

A. Those were not true, sir. Q. Do you remember where you were on the early morning of November 21, 2007? A. I was at the house sleeping. Q. Who else were in your house in the morning of November 21, 2007? A. I was alone, sir. Q. Where was Ms. Lacsamana? A. She was in Singapore, sir. Q. How were you able to remember that you were at home in the morning of November 21, 2007? A. Because I was awakened by the police who took me. Q. When Mr. Parlade was asked in his Sinumpaang Salaysay in a question and answer form and I quote: “Q – Ano ba ang itsura ng taong nakita mong nagnakaw ng inyong tricycle? A. Nakasando ng kulay puti, nakapantalon ng maong, medyo malapad ng konti ang katawan at medyo maiksi ang buhok.” Please stand up, Mr. Witness, so the Court can observe whether you are slim, medium built, or wide in body. What is your height, Mr. Witness? A. 5’5 ½ inches, sir. Q. And, what is your weight now? A. 120 lbs., sir. Q. What was your weight on November 21, 2007? A. It was probable that I weighed less because “baksak ang katawan.” Q. Do you have evidence of how you looked on November 21, 2007 or about that date? A. Yes, sir. Q. Why do you say that, do you have evidence?

A. I had my picture taken at Pariancillo after the police arrested me. INTERPRETER: Witness is turning over his picture to the interpreter and to the presiding judge. ATTY. CRUZ: Q. And, when was this pictures taken? A. Before my inquest. ATTY. CRUZ: May we request that this picture be marked as Exhibits “1” for the defense. COURT: Mark it. ATTY. CRUZ: How old are you, Romulo? A. Going to 43, sir. Q. During the past 40 years, were you ever charged with the commission of any crime before the police, the barangays, the courts, or the fiscal’s offices? A. None, sir. ATTY. CRUZ: That will be all, Your Honor. COURT: Cross? PROSEC. DE LEON: Mr. Witness, you mentioned that you reside at 374 Villa Street, Palatiw, Pasig City. How far is this from West Road, Maybunga, Pasig City? A. It is quite far, sir. Q. Give us an estimate of the distance? A. From the Pasig Kapitolyo to Edsa Shrine in Ortigas. Q. Do you reckon by road distance, using the regular route? A. Yes, sir. Q. Is there available public transportation running that route on a 24hour basis? A. Yes, sir.

Q. In other words, if you want to go to Maybunga Pasig you can go there anytime? A. Yes, sir. Q. What did you feel when the tricycle was taken from Teresa Lacsamana? A. I had hurt feelings. Q. Since you were hurt, if you were given the chance to get back the tricycle, would your hurt feelings be cured? A. Some of my pains would be relieved. Q. Since that would relive your pains, you would do any means to get the tricycle? A. I will do everything to repossess the tricycle in a legal way. Q. What do you mean by doing everything to get the tricycle back in a legal way? A. What I mean in a legal way is we will pay BDC what we owe on the tricycle. Q. You mentioned a while ago that you tendered payment but Ms. Aguirre rejected it, is that right? A. Yes, sir. Q. At that instance when she rejected the payment, what came into your mind aside from the pain that you felt? A. I pleaded with Ms. Aguirre. Q. You pleaded with her, how did you plea with her? A. I pleaded with Ms. Aguirre that I hope the tricycle will not be seen in our place. Q. And, did you come to know that the tricycle was given to Mr. Parlade? A. It was only when the tricycle was stolen that I came to know that it was given to Carlos Parlade.

COURT: Redirect? ATTY. CRUZ: No redirect, Your Honor. COURT: Session resumed. Call your last witness. ATTY. CRUZ: May we call on our last witness, Maria Teresa Lacsamana, to the witness stand. COURT: Swear in the witness. INTERPRETER: (swearing the witness) Do you solemnly swear that the evidence you will give in this trial shall be the truth, the whole truth and nothing but the truth, so help you God? WITNESS: Yes, I do ma’am. INTERPRETER: Please state your name, age, and other personal circumstances. WITNESS: MARIA TERESA LACSAMANA, 33 years old, single, businesswoman, residing at No. 374 Villa Street, Palatiw, Pasig City. ATTY. CRUZ: I am offering the testimony of the witness for the purpose of belying the testimony of Ms. Aguirre concerning the circumstances under which the tricycle was taken from her. Q. Do you know the accused Romulo Takad? A. Yes, sir. Q. Why do you know him? A. He is at present my live-in partner, sir. Q. Are you married? A. No, sir. Q. Do you know this tricycle with Plate No. TS-9952 that Ms. Aguirre said you took from BDC by way of loan? A. Yes, sir. Q. Ms. Aguirre said that you defaulted in the installment payments of the tricycle, is that true?

A. I was unable to pay the installments for fifteen days. Q. When you were unable to pay those installments, what happened to the tricycle? A. Ms. Aguirre took it and we surrendered it to our treasurer, Mr. Marasigan. Q. What agreement, if any, did you have with Ms. Aguirre concerning the payment of the amount due to BDC? A. Ms. Aguirre gave me a deadline to pay the balance. Q. Do you remember the date of that deadline? A. She gave us a deadline of October 17. Q. Were you able to pay your balance on the tricycle on October 17? A. No, sir, I was not able to pay on October 17 because I was only able to get the money in the afternoon. Q. Where did you get the money you were going to use to pay for the balance of the tricycle? A. I mortgaged my car for P100,000.00. Q. Were you able to pay for your balance on that tricycle on October 17, 2006 as you agreed with Ms. Aguirre? A. I went to BDC to pay my balance but it was already closed and I returned on October 18 to pay but Ms. Aguirre did not accept my payment. Q. How much at that time did you owe BDC when you went there on October 18? A. I owed it P14,000.00 including the interest. Q. Did you have money to pay for the balance? A. Yes, sir. Q. You said that Ms. Aguirre refused to accept your payment, did she tell you the reason why she refused to accept your payment? A. She did not give any reason why she did not accept the balance

that I was paying her but she said if she gave me another chance I might not able to pay the rest. Q. Now, according to Ms. Aguirre after she refused to allow you to redeem the motorcycle, accused Romulo Takad, told her that he should not see the tricycle in Pasig City, is this true? A. Romulo Takad told Ms. Aguirre that if she will not accept the balance they were tendering if possible that he should not see the tricycle in Pasig because it was going to hurt him. Q. And, what was the reaction of Ms. Aguirre when Romulo Takad said that? A. There was no reaction from Ms. Aguirre but she only said, “Sige, pero taga-Pasig lang din ako.” Q. Where were you in the early morning of November 21, 2006? A. I was in Singapore, sir. Q. When did you leave for Singapore? A. November 16, sir. Q. And, when did you come back to the Philippines? A. December 14, sir. ATTY. CRUZ: That is all for the witness, Your Honor. COURT: Cross? PROSEC. DE LEON: When did you leave for Singapore, Madam Witness? A. November 16, sir. Q. What year, Madam Witness? A. 2007, sir. Q. In other words, on November 21, 2007 you did not have personal knowledge whatsoever of what transpired since you were in Singapore? A. Yes, sir, I did not have any knowledge of it.

PROSEC. PARAS: No more questions, Your Honor. COURT: Redirect? ATTY. CRUZ: No redirect, Your Honor. KASUNDUAN Ang kasunduang ito ay sa pagitan ng BAYAN DEVELOPMENT CORPORATION, na babanggitin dito bilang BDC at ng SCCPPTODA 2 na babanggitin dito bilang SAMAHAN. Kaming mga kasapi ng SCCPPTODA 2, sa pulong na ginanap ngayong ika-19 ng March 2007, ay nagkaisa at nagpasya sa mga sumusunod: 1. Na ang halangang nahiram sa BDC Sakbayan Program ay gagamitin lamang sang-ayon sa inaprubahang proyekto sa ilalim ng Sakbayan Program. Ito ay ang mga sumusunod: 1.1 Paunang pondo para sa GROUP GUARANTEE FUND na itatatag para sa SAMAHAN. 1.2 Pambili ng bagong motor at bagong sidecar. 2. Na ang halagang nahiram ng SAMAHAN na Four Hundred Eighty Thousand Pesos (P480,000.00) o Eighty Thousand Pesos (P80,000.00) bawat isa ay babayaran lamang sa loob ng thirty (30) months na may interest rate na thirty-six percent (36%) per annum, add-on. 3. Na ang bawat kasapi ng samahan ay maghuhulog-bayad arawaraw sa itinalagang Ingat-Yaman ng SAMAHAN sang ayon sa mga sumusunod: 3.1 Halagang P147.65 araw-araw sa loob ng thirty (30) months pagkatapos ng ibinigay na taning na bilang ng araw para sa “break-in period.” 4. Na ang araw-araw na hulog bayad ng mga kasapi ng SAMAHAN ay idedeposito lingguhan tuwing araw ng Miyerkules sa itinalagang

Ingat-Yaman sa Bangko kung saan ang SAMAHAN ay nagbukas ng isang “Checking Account” na nasa pangalan ng kanilang Lider at Ingat-Yaman; 5. Na ang halagang inutang sa BDC ng SAMAHAN as babawasan ng dalawa’t kalahating porsyento (2.5%) o halagang P12,000.00. Ang nasabing ibinawas na halaga ay magsisilbing paunang pondo na ilalagak sa GROUP GUARANTEE FUND ng SAMAHAN. 5.1 Na ang Group Guarantee Fund ng SAMAHAN ay ilalagak sa pag-iingat ng BDC sa pangalan ng SAMAHAN; 5.2 Ang bawat kasapi ng SAMAHAN ay maghuhulog ng P10.00 araw-araw bilang lagak-kontribusyon sa Group Guarantee Fund. Ito ay isasabay sa araw-araw na hulog-bayad para sa utang sa BDC na nabanggit sa Kasunduan 3.1; 5.3 Na ang Group Guarantee Fund ng SAMAHAN ay kikita ng interes na nagkakahalaga ng 5% kada taon. 5.4 Ang Group Guarantee Fund ng SAMAHAN ay hindi maaaring galawin/gamitin ng sinuman sa SAMAHAN sa anumang oras o pagkakataon. Ito ay lubusang ibibigay sa SAMAHAN kapag ang utang sa BDC ay lubos nang nabayaran. 6. Na itinalaga si Danilo Mortel bilang Pangulo o Lider ng SAMAHAN na siyang tagapangalaga nito; si Ricardo Marasigan bilang Ingat-Yaman na siyang tagapangasiwa sa araw-araw na koleksyon at kalagayang pananalapi ng SAMAHAN; at si Jerry Bolivar, bilang Awditor, na siyang mangangalaga sa katumpakan ng koleksyon at mga bagay-bagay na may kinalaman sa pananalapi ng SAMAHAN; 7. Na ang itinalagang Lider ng SAMAHAN ay mangunguna sa pagpapatupad ng KASUNDUAN; 8. Na ang itinalagang Ingat-Yaman ay mahigpit na magpapasunod sa itinakdang araw-araw na hulog bayad sang-ayon sa kas. 3.1, at lingguhang mag-uulat sa kalagayang pananalapi at ng pagpapatupad ng

koleksyon; 9. Na ang awditor ay magpapatibay sa katumpakan sa ulat ng IngatYaman batay sa kanyang sariling pagtutuos; 10. Na ang SAMAHAN ay magdaraos ng regular na pagpupulong na gaganapin tuwing Biyernes sa ganap na 1:00 ng hapon; 10.1 Ang nasabing regular na pagpupulong ay dadaluhan ng BDC Account Officer sa loob ng tatlong (3) buwan matapos maibigay ang bagong tricycle. Pagkatapos noon, ang pagdalo ng Account Officer ay magiging dalawang beses na lamang bawat buwan o sang-ayon sa pangangailangan; 11. Ang SAMAHAN sa pangunguna ng Lider ay magpapatuloy sa regular na lingguhang pagpupulong hanggang matapos at lubos na mabayaran ang pagkakautang ng SAMAHAN sa BDC upang mapangalagaan ang pinansiyal at kapakanan ng bawat kasapi; 12. Ang sinumang kasapi ng SAMAHAN na lumiban sa regular na pagpupulong na walang pasubali at/o matibay na dahilan ay magmumulta ng P50.00 sa bawat pagliban. Ito ay ilalagak sa Bangko ng SAMAHAN; 13. Ang multa sa pagliliban sa pulong ay dapat mabayaran sa loob ng dalawang araw mula sa araw ng kaukulang pagpupulong. Ang pagwawalang bahala sa nasabing multa ay mangangahulugan ng pagbawas nito sa araw-araw na hulog-bayad ng kasaping nagkasala; 14. Ang patuloy na pagliban sa pagpupulong at pagwawalang bahala sa pagbabayad-multa ay mangangahulugan ng paggamit sa sinasaad sa probisyon bilang 15.1 ng kasunduang ito; 15. Na pananagutan ng SAMAHAN na bayaran o punan/ takpan ang anumang pagkukulang sa hulog-bayad ng sinuman o alinman sa kasapi ng SAMAHAN sa itinakdang araw ng bayaran sa BDC. Ito ay upang hindi tumalbog ang hulog-tseke ng buong SAMAHAN. Subalit; 15.1 Kapag ang isang kasapi ay hindi makabigay ng tatlong karampatang arawang hulog-bayad sa loob ng isang kinsenas o

napapaloob sa isang tseke sa BDC, ang kanyang tricycle ay hahatakin ng SAMAHAN kasama ang linya (TODA) at/o prangkisa at ito ay pangangasiwaan ng SAMAHAN upang ang arawang kita nito ay tuwirang gagamitin ng SAMAHAN para sa darating na arawang hulog-bayad ng kasaping nagkasala; 15.2 Ang nahatak na tricycle ay mananatili sa pangangasiwa ng SAMAHAN hanggat’t hindi lubos na nababayaran ang nagging pagkukulang sa SAMAHAN; 15.3 Ang tricycle na mula sa inutang sa BDC ay hindi maaaring isanla, ibenta o ilipat ng pagmamay-ari hangga’t hindi pa lubusang nababayaran ang utang at pananagutan sa BDC; 15.4 Bilang pagtataguyod sa mga nabanggit sa itaas na kasunduan Blg. 15.2, at bilang proteksyon para sa SAMAHAN laban sa anumang maaaring pagmamalabis ng sinumang kasapi, ang buong SAMAHAN ay lalagda sa isang DEED OF SALE na ilalagak sa pag-iingat ng BDC. Pinagtitibay din ng kasunduan na hangga’t tumutupad ng lubos sa kasunduan ang buong SAMAHAN, ang nasabing DEED OF SALE ay winawalang halaga at bisa ng BDC. 16. Na anuman ang mangyari sa alinmang tricycle ng sinumang kasapi ng SAMAHAN (e.g., manakaw, masira bunga ng aksidente), ang buong pagkakautang, balanse o natitirang pagkakautang ng SAMAHAN sa BDC ay babayaran at aabonohan pa rin ng buong SAMAHAN; 17. Na ang biniling motorsiklo o tricycle ay ipapatala bilang pampublikong sasakyan (dilaw na plaka) sa loob at hindi lalagpas ng dalawang (2) buwan mula sa araw ng pagbibigay ng BDC sa naturang motor o tricycle sa SAMAHAN; 18. Na ang SAMAHAN ay magsisilbing modelo o magandang halimbawa sa buong TODA at komunidad sa pamamagitan ng pagtangkilik at pagtupad sa “Siyam na Kapasyahan” ng BDC SAKBAYAN PROGRAM;

19. Na ang pagiging matagumpay ng SAMAHAN sa paghawak ng kanilang proyekto na pinayagan sa ilalim ng BDC SAKBAYAN PROGRAM, ang siyang magsisilbing daan tungo sa patuloy o pagtuloy-tuloy ng mga serbisyo ng BDC sa SAMAHAN at kanilang TODA; 20. Na ang bawat kasapi ng SAMAHAN ay nauunawaan at sumasang-ayon sa lahat ng nilalaman nitong Kasunduan at anumang paglabag ninuman sa mga kasapi dito ay magsisilbing daan upang ang BDC, sa pamamagitan ng SAMAHAN ay putulin ang ugnayan sa tiwaling kasapi at gawin ang sumusunod; 20.1 Hatakin ang tricycle o mga tricycle kasama ng linya (TODA) at/o prangkisa ng tiwaling kasapi na kabilang sa Chattel Mortgage Contract sa BDC. TULUNGAN NAWA KAMI NG DIYOS NA MAGAMPANAN NG TAPAT ANG AMING MGA TUNGKULIN AT PANANAGUTAN. PINAGTIBAY AT NILAGDAAN: BORROWERS: JERRY BOLIVAR MA. TERESA LACSAMANA RICARDO MARASIGAN KINATAWAN NG BDC: ZENNY G. AGUIRRE Senior Account Officer BDC Ortigas Branch REPUBLIKA NG PILIPINAS) MAKATI CITY ) S.S.

DANILO MORTEL RODEL LANDIGAN JULIO ANDIN

Sa harap ko, na isang Notaryo Publiko sa Makati City ngayong ika April 2, 2002, ay dumulog ang mga nakalagda sa itaas, na may katibayan ng paninirahan sa nabanggit sa ilalim ng kani-kanilang pangalan, na nakilala ko silang lahat bilang nagsasagawa ng naritong kasulatan na pinatunayan nila sa harap ko na malayang ginawa at tinanggap at ayon sa kanilang kagustuhan. SAKSI ANG AKING LAGDA AT SELYONG PANTATAK, ngayong ika April 2, 2006 dito sa Makati City.

JOSEPH B. CARREON Notary Public Appointment No. M-212 (3/20/2006 to 12/31/2007) Roll No. 51613; Surigao Sur MCLE No. IV-0095784 PTR No. 076892 01-31-06 Makati IBP No. 345986 01-21-06 Makati 2nd Floor 3560-B Hilario St., Fairview, Quezon City Kas. Blg. 315; Pahina 57; Aklat Blg. 2; Taon 2006.

APPENDIX B Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region Branch 107, Manila BRENDA SIMON and LORENZO GARCIA, Plaintiffs, - versus -

Civil Case No. 30012

SILVER FILMS, INC., Defendant. x----------------------------------x ORDER For resolution are the following incidents: 1. Motion to Dismiss filed by the defendant Silver Films, Inc.; 2. Manifestation/Motion to Deny Silver Film’s Motion to Dismiss filed by plaintiff Lorenzo Garcia; 3. Motion to Dismiss filed by plaintiff Brenda Simon; 4. Opposition with Motion to Strike Out the Motion to Dismiss of Brenda Simon filed by plaintiff Lorenzo Garcia; 5. Comment on the Opposition filed by defendant Silver Films, Inc.;

6. Motion for Leave to file Supplemental Complaint and to Admit Attached Supplemental Complaint filed by plaintiff Garcia; 7. Motion for Production, Inspection, and Copying of Documents filed by plaintiff Garcia; 8. Opposition to the Motion for Leave to File Supplemental Complaint and Motion for Production of Documents filed by defendant Silver Films, Inc.; 9. Manifestation filed by plaintiff Garcia on July 4, 2004; 10. Comment thereon filed by plaintiff Simon; 11. Comment on Manifestation filed by defendant Silver Films, Inc.; and 12. Manifestation filed by plaintiff Garcia on August 16, 2004. Defendant Silver Films, Inc. first moved to dismiss the case on the ground that the dispute between the parties had already been settled and amicably resolved as per amendment to the 2000 and 2002 Contract dated June 17, 2003. Plaintiff Simon filed also a motion to dismiss on the basis of the said Amendment and manifested that she is no longer interested in pursuing the case. Plaintiff Garcia opposed the two motions alleging among others that the Amendment dated June 17, 1998 was executed without his knowledge and consent and contained provisions which were grossly disadvantageous to him and should therefore be disapproved; that plaintiff Simon is not the real party in interest and hence, not in a position to move for the dismissal of the case; that plaintiff Simon’s motion does not comply with Sections 4, 5 and 6 of the Revised Rules of Court and prayed that plaintiff Simon’s motion to dismiss be stricken out from the record. Defendant Silver Films, Inc. joined plaintiff Simon in moving for the dismissal of the case via its opposition to the motion to strike out arguing that the motion to dismiss filed by plaintiff Solis was in accordance with Section 1, Rule 17 of the Revised Rules of Court and that plaintiff Simon, as manager of plaintiff Garcia can legally bind

him. Plaintiff Garcia then moved for leave to file supplemental complaint and to admit supplemental complaint as well for production, inspection, and copying of the original contracts executed by plaintiff with defendant Silver Films, Inc. for the years 2000, 2001, 2002 including the amendment, which was opposed by defendant Silver Films, Inc. Subsequently, in the interest of expediting the settlement of the case, after several preliminary conferences initiated by the Court and which were attended only once by representative of defendant Silver Films, Inc., plaintiff Garcia manifested his willingness to honor the Amendment dated June 17, 2003 provided that the same be considered a compromise agreement and judgment be rendered by this Court in accordance therewith. Both defendant Silver Films, Inc. and plaintiff Simon were not amenable to the same. Defendant Silver Films, Inc. suggested instead that the case be settled by implementing the agreement reached in the preliminary conference held on June 23, 2003 and likewise, expressed its willingness to release plaintiff Garcia from his 1999 and 2002 contracts. In reply, plaintiff Garcia observed that defendant Silver Films, Inc. and plaintiff Simon appear to be repudiating the very same Amendment they vigorously sought to enforce and bind plaintiff Garcia. From the foregoing, this Court notes that notwithstanding that the Amendment dated June 17, 2003 was the basis of defendant Silver Films, Inc.’s motion to dismiss, said defendant expressed its nonconformity with plaintiff Garcia’s manifestation to abide by the terms of said amendment for purposes of settling the case. The same holds true with respect to plaintiff Simon who initially prayed for the dismissal of the case on the basis of said amendment. The amendment however shows that she executed the same in her capacity as manager/agent of plaintiff Garcia and thus, her act/representation legally binds the principal, plaintiff Garcia, pursuant to the rules on agency.

In view thereof, this Court, in the exercise of its discretion, resolves to render judgment based on the Amendment to the 2000 and 2002 Contract dated June 17, 2003 considering the same as a Compromise Agreement between the parties. All the other motions are hereby denied for having become moot and academic. SO ORDERED. Manila, October 24, 2004 (Name omitted) Judge Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region Branch 107, Manila BRENDA SIMON and LORENZO GARCIA, Plaintiffs, Civil Case No. 30012

- versus SILVER FILMS, INC., Defendant. x----------------------------------x ORDER

For the resolution are the following incidents: 1) Motion to Defer Filing of Answer and Motion for

Reconsideration Re: Order dated October 24, 2004 filed by defendant Silver Films, Inc., through counsel, on November 20, 2004; 2) opposition thereto filed by plaintiff Lorenzo Garcia, through counsel, on December 27, 2000; 3) Reply to Opposition filed by defendant Silver Films, Inc., through counsel, on January 10, 2005; 4) Motion to Strike Out filed by Garcia, through counsel, on November 28, 2004; 5) Opposition thereto filed by defendant, through counsel, on November 29, 2004. Defendant Silver Films, Inc. moved for reconsideration of the Order of the Court dated October 24, 2004 alleging among others that there was no basis in fact and in law for a compromise agreement there being no compromise agreement submitted by the parties for the approval of the Court; the judgment contained in the questioned order cannot be deemed a judgment under Rule 36, nor a judgment by default, judgment on the pleadings, or summary judgment since herein defendant has not yet filed its answer to the complaint; if the motion to dismiss filed by defendant has been denied, then the basis thereof — addendum dated June 17, 1998, cannot be used as the basis for judgment on compromise; there was denial of due process as defendant was not given the opportunity to file its answer after its motion to dismiss had been denied. Likewise, said defendant moved to defer the filing of its answer. In opposition thereto, plaintiff Garcia argued that defendant seeks to repudiate the Amendment dated June 17, 1998 in its attempt to have the questioned order reconsidered but invokes the same amendment to have the instant complaint dismissed; the subject amendment has all the requisites of a compromise agreement having been signed by the parties and their respective counsel and subsequently ratified by plaintiff Garcia; defendant has no reason to complain of denial of due process in the issuance of the questioned order being the one who submitted the subject amendment as basis for the dismissal of the complaint. In reply, defendant stressed non-compliance with the rules of procedure laid down by the Supreme Court on the part of the court

warranting a reconsideration of the questioned order. Plaintiff Garcia also moved that the pleadings filed by defendant be stricken off the records for failure to comply with the three-day notice rule prescribed by the Rules. Herein defendant opposed the same alleging that the copy of the motion received personally by plaintiff was in addition to the copy thereof sent by registered mail by defendant at least four days before the scheduled hearing. Plaintiff Brenda Simon did not file comment/opposition to the questioned order despite the extension granted. Anent the procedural aspect, the motions filed by defendant Silver Films, Inc. were sent through registered mail on February 20, 2005 and set for hearing four days after, February 24, 2005, hence, complied with the Rules. In any case, plaintiff Garcia’s opposition to the said pleadings cured whatever procedural defect there may be (Jardin v. Hallasgo, 117 SCRA 535, 1982). Going over the merits of the instant motion for reconsideration, this Court agrees with the defendant Silver Films, Inc. that indeed no formal compromise agreement was submitted by the parties for the approval of the court. Yet, said defendant urged this court to believe that there was such a settlement of dispute between the parties in view of the Amendment dated June 17, 2003 which it in fact used as basis for asking the dismissal of the complaint. Further, plaintiff Brenda Simon joined said defendant in moving for the dismissal of the complaint on the same ground alleging amicable settlement through a compromise agreement, which is the subject amendment. For purposes of expediting the settlement of this case, plaintiff Garcia expressed willingness to abide by the terms of the subject amendment albeit initially not agreeable to it. When the Court finally rendered judgment based on the subject amendment per order dated October 24, 2004, defendant Silver Films, Inc. questioned the same. After a careful study of the arguments raised by the parties in support of their respective claims, this Court resolves to adhere to its

previous ruling that a compromise agreement was entered into by the parties through the Amendment dated June 1998. A perusal of the Amendment dated June 2003 shows that it was duly signed by plaintiff Simon as agent of plaintiff Garcia and defendant Silver Films, Inc. and their respective counse. Through the terms thereof are disadvantageous to him, plaintiff Garcia ratified the same. Thus, for all intents and purposes, the subject amendment has all the attributes of a compromise agreement though not denominated as such. It bears stressing that defendant Silver Films, Inc. and plaintiff Brenda Simon, in their respective motion to dismiss, considered the amendment a settlement of the dispute between the parties with plaintiff Simon categorically calling the same a compromise agreement. After having led this Court to believe that settlement had been reached by the parties through the subject amendment, defendant would now urge the Court to disregard the amendment just because events have transpired after the execution thereof which would render compliance with the terms thereof difficult more so after the ratification of the same by plaintiff Garcia. With the approval of the amendment dated June 1999 as a Compromise Agreement, the proceedings in this case are terminated and the pending motions at the time of the approval thereof are denied for having become moot and academic as embodied in the questioned order. WHEREFORE, in view of the foregoing, the Motion for Reconsideration and Motion to Defer Filing of Answer filed by defendant Silver Films, Inc. are hereby denied. SO ORDERED. Manila, March 6, 2004 (Name omitted) Judge

Republic of the Philippines COURT OF APPEALS Manila SECOND DIVISION LORENZO GARCIA, Plaintiff-Appellee, CA-G.R. CV No. 54389

- versus SILVER FILMS, INC., Defendant-Appellant, x-------------------------------x

DEFENDANT-APPELLANT’S BRIEF Defendant-appellant, SILVER FILMS, INC., by counsel, respectfully avers: I Prefatory Statement Plaintiff-appellee Lorenzo Garcia in the instant case claims, with the lower Court’s sanction, that there is a Compromise Agreement between the parties involved. Defendant-appellant Silver Films, Inc., however, categorically denies the existence of a Compromise Agreement and further asserts that it is entitled to file an Answer on account of the denial by the lower court of its Motion to Dismiss. II

Statement of the Facts 1.01 Plaintiff Brenda Simon (Simon) and plaintiff-appellee Lorenzo Garcia (Garcia) filed with the lower Court a Complaint dated 27 May 2003 which sought the rescission of the 2002 Agreement entered into with defendant-appellant Silver Films, Inc. 1.02 While the case was pending, a renegotiation between plaintiffappellee Garcia, represented by Simon, and defendant-appellant Silver Films took place which resulted in an Amendment dated 17 June 2003 that superseded all terms and conditions embodied in their previous contracts. 1.03 Defendant-appellant Silver Films and plaintiff-appellee Simon separately filed Motions to Dismiss on the ground that the dispute involving the parties had already been settled through said Amendment. 1.04 Plaintiff-appellee Garcia opposed the Motions to Dismiss, alleging that he did not authorize Simon to represent him in the renegotiation of the agreements. 1.05 Subsequently, Garcia, in a Manifestation dated 03 July 2004, expressed his willingness to honor the terms and conditions of the Amendment dated 17 June 2003 on the supposition that the same shall be considered a Compromise Agreement. 1.06 Defendant-appellant Silver Films and plaintiff-appellee Simon vehemently opposed Garcia’s proposal to treat the aforesaid Amendment as a Compromise Agreement. Instead, defendantappellant suggested that the terms and conditions to the Agreement reached by the parties during the preliminary conference held on 23 July 2004 be adhered to, i.e., defendant-appellant shall release plaintiff-appellee Garcia from his contractual commitments. 1.07 The trial court, in an order dated 24 October 2004, treated the Addendum to the 1996 and 1998 Contracts dated 17 June 2003 as a Compromise Agreement and denied all pending motions, including the

Motions to Dismiss separately filed by defendant-appellant Silver Films and Simon. 1.08 Defendant-appellant filed a motion for reconsideration of the order dated 24 October 2004. The lower court, however, rendered an order dated 06 March 2005 which denied the aforecited motion for reconsideration and ruled in favor of plaintiff Garcia, stating that: “a compromise agreement was entered into by the parties through the Amendment dated 17 June 2003. x x x SO ORDERED.” 1.09 Hence, this appeal. III Assignment of Errors 2.01 The lower Court erred in treating the Amendment dated 17 June 2003 as a Compromise Agreement between the parties. 2.02 The lower Court erred in depriving defendant-appellant Silver Films, Inc. of its right to procedural due process, said defendantappellant being entitled to file an answer after the Court denied its motion to dismiss. 2.03 The lower Court erred in making two (2) diametrically opposed moved: (1) in denying the motion to dismiss filed pursuant to the Amendment; and (2) in treating the rejected Amendment as the Compromise Agreement itself. IV Argument

The Amendment dated 17 June 1999 cannot be treated as the Compromise Agreement itself. 3.01 The Court’s order dated 24 October 2004 categorically stating that there was a Compromise Agreement between the parties is totally unfounded because it was rendered without properly considering the facts. 3.02 The vehement objection and written opposition of defendantappellant Silver Films, Inc., and plaintiff Simon to the alleged Compromise Agreement clearly show the absence of a “meeting of minds” between the parties involved. 3.03 In Godoy v. Court of Appeals (250 SCRA 629), the Supreme Court aptly characterized a compromise as a “bilateral act or transaction.” The questioned Compromise Agreement lacks this indispensable element; completely absent in said Compromise Agreement is “an unqualified agreement among the parties to be bound by the judgment on consent,” a fundamental requirement laid down by the Supreme Court in Republic v. Bisaya Land Transportation Co., Inc. (81 SCRA 8 [1978]). 3.04 Despite the foregoing judicial pronouncements, the lower Court arrogated unto itself the power to declare the existence of a Compromise Agreement, in utter disregard of defendant-appellant’s vigorous objection and opposition. Defendant-appellant was deprived of its right to procedural due process because after its motion to dismiss was denied, it was not given the opportunity to file its Answer as required by the Rules of Court

3.05 The denial of the motion to dismiss ipso facto entitles the movant to file an answer. This is sufficiently clear in Section 4, Rule 16 of the Rules of Court which mandates, in part: “If the motion is denied, the movant shall files his answer within the balance of the period prescribed…” 3.06 The defendant-appellant was deprived of its right to file an answer when the lower Court terminated all judicial proceedings after rendering the order dated 06 March 2005 denying all pending motions, including the motion to dismiss filed by defendant-appellant, and treating the Amendment dated 17 June 1999 as the Compromise Agreement itself, the existence of which is disputed by defendantappellant. 3.07 In Home Savings Bank & Trust Co. v. Court of Appeals (273 SCRA 360), the Supreme Court authoritatively stated the consequence resulting from the denial of a motion to dismiss in this manner: “… in case of a denial of the motion, the movant is not deprived of the rights to submit its own case and to present its evidence.” 3.08 The lower Court disregarded all the foregoing considerations, in clear violation of defendant-appellant’s procedural right to due process, i.e., its opportunity to be heard. The lower Court erred in making two (2) diametrically opposed moves. 3.09 Defendant-appellant maintains that the lower Court cannot deny its motion to dismiss filed pursuant to the Amendment dated 17 June 2003 at the same time consider said Amendment as the Compromise Agreement itself because these two (2) acts are wholly repugnant or absolutely irreconcilable. 4.01 The denial of the motion to dismiss, in fact, amounts to a rejection of the Amendment itself. This indisputable circumstance bars the lower Court from treating the rejected Amendment as the Compromise Agreement itself.

V Prayer WHEREFORE, premises considered, defendant-appellant Silver Films, Inc. respectfully prays that the decision appealed from be reversed and set aside. Defendant-appellant prays for cost of suit and for such further or other relief as may be deemed just or equitable. Pasig City for Manila. 04 July 2006. ROMAN CRUZ & TAPALES Counsel for Defendant-Appellant Suite 877 Harbor View Bldg. Roxas Boulevard, Manila IBP 544498 12-21-13 PTR 8723254 01-02-13 MCLE Compliance IV-295 Email: [email protected] By: PAULO A. CRUZ PTR 8529903 06-09-06 IBP 440693 04-28-06 Atty. Roll No. 23456 Copy furnished: MARIA LEILA B. PENERA Counsel for Plaintiff-Appellees 5/F Rivera Santos Building 54 Antonio Luna Street Sta. Cruz, Manila

Republic of the Philippines COURT OF APPEALS Manila SECOND DIVISION LORENZO GARCIA , Plaintiff-Appellee, CA-G.R. CV No. 54389

- versus SILVER FILMS, INC., Defendant-Appellant, x-------------------------------x

APPELLEE’ S BRIEF Plaintiff-Appellee Lorenzo Garcia, through counsel, respectfully states: Prefatory Statement On its face, the Defendant-Appellant’s Brief dated July 4, 2000, and served on plaintiff-appellee Garcia on July 21, 2004, utterly fails to comply with the requirements of Section 13, Rule 44 of the Rules of Court. The caption does not even indicate the docket number of the case in the Court a quo. Hence, the appeal deserves outright dismissal. Counter-Statement of Facts The Statement of Facts in the Defendant-Appellant’s Brief contains inaccuracies, which need to be rectified, lest this Honorable Court be misled. In paragraph 1.06 its statement of the facts, defendant-appellant Silver Films, Inc., makes reference to an alleged Agreement reached by the parties during the preliminary conference held on July 23, 2000. No

such Agreement exists. The records do not show the slightest hint of any agreement reached by the parties on July 23, 2004. Indeed, defendant-appellant Silver Films cannot claim to have entered into the imagined agreement, because a day after the preliminary conference, or on July 24, 2004, it still filed a Motion for Extension of time within which to file its Comment on plaintiffappellee Garcia’s Manifestation dated July 3, 2000, whereby the plaintiff-appellee decided to honor the “Amendment to the 2000 & 2002 Contract” dated June 17, 2003. In other words, if it were true, as defendant-appellant Silver Films claims, that the parties entered into an agreement during the July 23, 2004 preliminary conference, the defendant-appellant would not have bothered to file its Motion for Extension, and waste its time preparing its Comment wherein it merely manifested its willingness to release plaintiff-appellee Garcia from his 2000 and 2002 contracts. ARGUMENTS First Assigned Error: The Lower Court erred in treating the Amendment dated June 17, 2003 as a Compromise Agreement. The Court a quo did not so err. A scrutiny of the “Addendum to the 2000 & 2002 Contract, dated June 17, 2005 shows that it was signed by defendant-appellant Silver Films assisted by its counsel, and by plaintiff Brenda Simon in representation of plaintiff-appellee Garcia assisted by counsel. While initially, plaintiff-appellee Garcia refused to honor the Amendment, nevertheless per his Manifestation dated July 3, 2004, he ratified the Amendment. Thus, the Amendment has all the requisites of a compromise agreement.

Defendant-Appellant Silver Films even admitted in writing the validity of the compromise agreement when it declared in its Motion to Dismiss dated June 27, 2003 that “in an agreement dated 17 June 2003 between the parties all incidents which are the subject of the complaint in the above-captioned case were settled and amicably resolved.” Second Assigned Error: The Lower Court erred in depriving defendantappellant Regal Films of its right to procedural due process, said defendantappellant being entitled to file an Answer after the denial of its Motion to Dismiss. The Court a quo did not so err. Defendant-Appellant Silver Films cannot claim denial of procedural due process, inasmuch as it was the one who submitted and brought to the attention of the Court a quo the Amendment dated June 19, 1999 containing the terms of amicable settlement between the parties. It cannot now complain if the Court a quo stamped its imprimatur on the Amendment and treated it as a compromise agreement –– which is what it really is. Besides, the rule giving the defendant the opportunity to file an Answer after the denial of its motion to dismiss, applies only when the ground invoked in such motion to dismiss is one of those enumerated in Section 1, Rule 16 of the Rules of Court. In such case, an Answer is necessary in view of the existence of litigable issues raised in the Complaint, which need to be responded to. In the case at bar, defendant-appellant Silver Films motion to dismiss was grounded on the amicable settlement between the parties.

It goes without saying that the Court a quo has the power to protect the rights of the parties and ensure compliance with the terms and conditions of the amicable settlement. Verily, the Court a quo acted most judiciously and rightly in treating the Amendment dated June 17, 2003 as a compromise agreement, and in denying defendant-appellant Silver Films’ motion to dismiss. Had the Court a quo not done so, the result would have been unfair and unjust to plaintiff-appellee Garcia, because the case would have been dismissed without defendant-appellant Silver Films having complied with its contractual commitments under the Amendment. Up to now, defendant-appellant Silver Films has not paid the following to plaintiffappellee Garcia pursuant to the Amendment: (a) The amount of P100,000.00 in consideration for the waiver by plaintiff-appellee Garcia of any and all rights to the parcel of land covered by his talent contracts; and (b) The additional amount of P1,000,000.00 by way of talent fees under the 1998 contract. Plaintiff-appellee Garcia had long ago performed his part of the bargain. Defendant-appellant Silver Films does not deny and has never put in issue the performance by the plaintiff-appellee of his obligations as an actor. In fact, the agreed movies of the plaintiff-appellee had all been shown a long time ago. Neither can defendant-appellant Silver Films dispute that the plaintiff-appellee had already dropped all his claims to the parcels of land, which he was supposed to receive in consideration for his appearance in the movies produced by the defendant-appellant. What we have here is plain and simple stubborn refusal of defendant-appellant Silver Films to compensate plaintiff-appellee Garcia for his services rendered as an actor. Third Assigned Error: The Lower Court erred

in making two diametrically opposed moves. The Court did not so err. If anybody is guilty of inconsistency of actions, it is defendantappellant Silver Films. Such self-contradiction is best exemplified by the defendant-appellant’s act of invoking the Amendment dated June 17, 2003 in insisting on the dismissal of the case, but repudiating the same Amendment in arguing that there is no compromise agreement between the parties. Fortunately, the Court a quo saw through defendant-appellant Silver Films’ devious and sinister ploy to evade its contractual obligations to plaintiff-appellee Garcia, and avoid payment of the amounts due to the plaintiff-appellee under the Amendment dated June 17, 2003. As earlier stated, had the Court a quo simply dismissed the case as desired by defendant-appellant Silver Films, grave injustice would have occurred, because the defendant-appellant has no intention whatsoever of honoring its commitments under the Amendment. Plaintiff-Appellee Garcia would have been compelled to litigate anew to enforce the Amendment. Thus, action of the Court a quo is not only supremely Solomonic, but it also avoided multiplicity of suits. CONCLUSION Under the facts and circumstances, it is, clear that defendantappellant Silver Films came to this Honorable Court with unclean hands, not having paid a single centavo due to plaintiff-appellee Garcia under the Amendment dated June 17, 2003, while pretending to have been aggrieved by the action of the Court a quo. Defendant-Appellant Silver Films has been able so many times to get away with not paying the fees due to its talents. This time, this Honorable Court should not allow the defendant-appellant to escape.

It has been more than three years since the Amendment was executed. To date, plaintiff-appellee Garcia is holding an empty bag. It is time for this Honorable Court to write finis to this case by declaring the appealed Orders immediately final and executory, the same being in the nature of a judgment upon a compromise agreement (Pls. see: Prudence Realty & Dev. Corp. v. CA, 231 SCRA 379, 388-389, citing World Machine Enterprises v. IAC, 192 SCRA 459). PRAYER WHEREFORE, plaintiff-appellee Garcia respectfully prays of this Honorable Court to dismiss the instant appeal, and to affirm in toto the questioned Orders or the Court a quo dated October 24, 2004 and March 6, 2005, respectively, declaring such Orders to be immediately final and executory. [Explanation: A copy of this Appellee’s Brief has been served on the adverse party by registered mail in view of the distance and the lack of messenger who can make a personal service.] Manila, August 1, 2002. MARIA LEILA B. PENERA Counsel for Plaintiff-Appellee 5/F Rivera Santos Building 54 Antonio Luna Street Sta. Cruz, Manila PTR 346874 01-08-97 Manila IBP 674980; 01-07-97 Manila Atty. Roll No. 65432 MCLE Compliance IV-123 Email: [email protected] Copy Furnished:

ROMAN CRUZ & TAPALES Counsel for Defendant-Appellant Suite 877 Harbor View Bldg. Roxas Boulevard, Manila Republic of the Philippines COURT OF APPEALS Manila SECOND DIVISION LORENZO GARCIA, Plaintiff-Appellee,

CA-G.R. CV No. 54389

- versus SILVER FILMS, INC., DefendantAppellant, x---------------------------------- (Justices’names omitted) x PROMULGATED: June 5, 2004

DECISION Before us on appeal is the Order of Branch 107 of the Regional Trial Court of Manila treating and approving the “Amendment to the 2000 and 2002 Contract” as a compromise agreement in Civil Case No. 30012, “Brenda Simon and Lorenzo Garcia v. Silver Films, Inc.,” for

rescission of contract with damages. In 2000 Lorenzo Garcia (Garcia) a television artist and movie actor, and his manager Brenda Simon (Simon) entered into a contract with Silver Films, Inc. (Silver Films) whereby Silver Films undertook to convey to Garcia a parcel of land located in Quezon City, aside from giving him talent fees, in consideration for his services as actor in the films it was going to produce. After appearing in a number of films and despite demands, Silver Films failed to convey to Garcia the parcel of land. In 2002, Garcia, Simon, and Silver Films again entered into another agreement incorporating the same undertaking that Silver Films would convey to Garcia the same lot. Again, despite Garcia’s appearance in several films produced by Silver Films, the undertaking remained unheeded, spawning the complaint subject of the present appeal. Silver Films moved for the dismissal of the complaint on the ground that the case was already settled/compromised by the execution of an “Amendment to the 2000 and 2002 Contract” (Amendment) by Silver Films and Simon in her capacity as Garcia’s manager/agent which Amendment was attached as Annex “A” to the complaint. Simon likewise moved for the dismissal of the complaint on the same ground invoked by Silver Films. Garcia, claiming that the Amendment was executed without his knowledge and consent and that it contained provisions disadvantageous to him, opposed the motion of Silver Films. Garcia also opposed his talent manager’s motion, claiming that she had ceased to be his manager and that, therefore, she had no authority to enter into and sign the Amendment. Before the scheduled preliminary conference of the case at the court a quo, Garcia manifested his willingness to now honor the Amendment provided that it be considered as a compromise agreement and that judgment be rendered in accordance therewith.

Later, alleging that the relationship between Garcia and Silver Films had become acrimonious, Simon commented that Silver Films was more inclined to release Garcia from the 2000 and 2002 contracts than to abide by the terms and conditions of the Amendment, and that if Silver Films opposed Garcia’s manifestation, she would be inclined not to honor the Amendment. Silver Films confirmed Simon’s comment and manifested that it was releasing Garcia from the 2000 and 2002 contracts. Garcia countered that as Simon and Silver Films were repudiating the Amendment, he was deprived of what is rightly due him. By Order of October 24, 2004, the court a quo “in the exercise of its discretion,” resolved to render judgment based on the Amendment to the 1999 and 2002 Contract, which it considered to be a Compromise Agreement between the parties. Hence, this appeal, Silver Films assigning as errors of the court a quo the following: “. . . in treating the Amendment dated 17 June 2003 as a Compromise Agreement between the parties. “. . . in depriving the defendant-appellant Silver Films, Inc. of its right to procedural due process, said defendant-appellant being entitled to file an answer after the Court denied its Motion to Dismiss. “. . . in making two (2) diametrically opposed moves: (1) in denying the Motion to Dismiss filed pursuant to the Amendment and (2) in treating the rejected Amendment as the Compromise Agreement itself.” In the main, Silver Films argue that there was no “meeting of minds” between the parties to the Amendment, citing the case of Galoy, et al. v. CA (250 SCRA 629) which characterized a compromise agreement as a bilateral transaction and that of Republic v. Bisaya Land Transportation Co., Inc. (81 SCRA 8) which held that in order that a judgment by compromise can be rendered, there must be “an

unqualified agreement among the parties to be bound by the judgment on consent.” The argument is untenable. The cases cited by Silver Films are not in point. In the Galoy case, nowhere in the judgment does it appear nor can it be inferred that the court took into account any agreement or concessions made by the parties. The decision rendered therein was based entirely on the merits. In the Republic case, although there was a motion for judgment based on consent which amounted to a judgment based on compromise agreement, there was no “meeting of the minds among the parties” for before they could come to an unqualified agreement on the judgment requested to be entered, appellee-corporation-movant withdrew the motion for judgment on consent. In the instant case, there was an Amendment to the contract signed by Simon and Silver Films’ representative to which amendment Garcia through his Manifestation expressed his conformity. There was, therefore, consent of all the parties. The amendment/compromise agreement was perfected and is binding on the parties and may not later be disowned simply because of a change of mind of Silver Films and/or Simon by claiming, in their Opposition/Reply to Garcia’s Manifestation, that after the 2000 National Films Festival fiasco in which Garcia was involved, the relationship between the parties had become bitter to render compliance with the terms and conditions of the Amendment no longer possible and consequently release Garcia from the 2000 and 2002 contracts (vide Olaybar v. NLRC, 237 SCRA 819 [1994]). WHEREFORE, the appealed Order is hereby AFFIRMED. SO ORDERED.

APPENDIX C Republic of the Philippines National Capital Judicial Region REGIONAL TRIAL COURT Branch 86, Manila NATIONAL SUPPLIES AUTHORITY and NATIONAL TRUCKING AUTHORITY, Plaintiffs, - versus -

Civil Case No. 62709

ALLIED SHIPPING CORP., Defendant. x----------------------------------------------x DECISION This is an action for damages arising from alleged breach of the contract of carriage, filed by the plaintiffs National Supplies Authority (NSA) and National Trucking Corporation, both government corporations, against defendant Allied Shipping Corporation (Allied Shipping) for its alleged failure to deliver to plaintiff NSA’s consignee 4,868 bags of non-fat dried milk worth P2,794,232.00 plus freight prepaid in the amount of P8,707.65 for a total of P2,862,939.64.

During the pre-trial, the parties offered for resolution by the court the following issues: 1. Whether or not defendant Allied Shipping was able to deliver the cargo involved herein, which it carried on board its vessel, to the consignee Mr. Hassan Salim of plaintiff NTC in Zamboanga; 2. Whether or not defendant Allied Shipping exercised the extraordinary diligence required of common carriers in connection with the cargo subject matter of this case; 3. Whether or not the plaintiff is entitled to its claim for actual, exemplary, and moral damages; and 4. Whether or not the defendant is entitled to recover damages from the plaintiffs under its counterclaim. After the pre-trial, the parties presented their respective evidence, testimonial and documentary. Evidence for the plaintiffs. 1. Vicente Tuason, plaintiff NSC’s manager for Relief Operations, testifying on direct examination on May 19, 2003 with respect to the procedural flow in the transport of relief goods, declared that his department engaged the services of defendant common carrier to ship the commodities involved; that upon NSC’s delivery of the commodities to the common carrier, the latter would issue the corresponding bill of lading acknowledging receipt of the commodities on board its vessel and of the payment of freight; that the NSC sent the bill of lading to the consignee of its goods, namely, Mr. Hassan Salim of NTC; that upon receipt of the bill of lading, Mr. Salim would go to the defendant common carrier to surrender the consignee’s copy of the bill of lading in exchange for the release of the commodities and, accordingly, sign the corresponding delivery receipt; that NTC is still in possession of the consignee’s copy of the bill of lading covering its

commodities because they were not received by Salim; and that Salim, however, had no letter explaining why he was returning the bill of lading in 2003. On cross-examination, however, Ruiz testified that from 2000 to the present, he has been in charge of relief operations; that Hassan Salim belonged to the Freight Forwarding Operations Department of the NTC; that they have some amount of control or supervision over those in the Freight Forwarding Operations Department; that he sent the bills of lading by registered mail to Salim who received them; that he never went to Zamboanga City and did not hold office there; that Salim allegedly reported, by telephone call the non-delivery of the commodities covered by the bills of lading to supervisor Leonora Sotto, who was in charge of shipping but is no longer connected with the NTC, and this information was relayed or told to him by manager Justo Belema of the Freight Forwarding Department; that no written report, however, was made to him by Sotto or Belema; that he did not require Salim to report in writing; that they were supposed to make monthly reports; that he does not know if Salim made a report to Belema; that he is familiar with the signature of Salim though he never saw him signing documents; that Salim is no longer connected with the NTC, having voluntarily resigned when an investigation was conducted on the missing commodities that were allegedly not received by their Zamboanga office; that Salim resented the investigation; and that Ruiz does not know what happened to the investigation. 2. Atty. Gregorio Lantana, second witness for the plaintiff, testified on August 25, 2007 that he has been the claim insurance manager of the NTC since 2003; that he came to know the defendant Allied Shipping when he was asked to investigate the loss of 5,824 bags of non-fat dried milk; that in December 2003, he went to Zamboanga City and conferred with Hassan Salim, Banch Supervisor of their Zamboanga office; that Salim told him that he did not receive the shipment and showed him the original copies of the consignee’s bill of lading; that he went to the local office of Allied Shipping and conferred

with the latter’s representative; that said representative told him that the goods were already withdrawn by Salim but he could not produce any receipt signed by Salim; that he went back to Manila bearing with him the original bills of lading; that he made a report dated December 14, 2003, which he submitted to Atty. Homer Garrido (Exh. L to L1); that on February 3, 2004, he went back to Zamboanga city for further investigation and conferred with Salim; that Salim insisted that he did not withdraw the goods from Allied Shipping; that he postponed the investigation to the following day, but Salim did not appear and, instead, sent somebody to submit his signed resignation to him and Helen Jacinto, the domestic forwarding manager of NTC; that he then went to Allied Shipping to confer with its representative who insisted that the goods were withdrawn by Salim; that he was given xerox copies of the cargo delivery receipts which did not bear the signature Salim; that the checker of Allied Shipping told him that the signatures on the receipts are not the same as the signature of Salim; that he knows the signature on the receipts are not the same as the signature of Salim; that he just saw the signature if Salim, but did not see him sign; that he did not ask the checker of Allied Shipping to make a written statement that Salim signed the receipts; that upon arrival in Manila, he prepared a claim letter to Allied Shipping, dated March 11, 2004 (Exh. F, F-1); that Artemio Carpio, claims officer of Allied Shipping, sent a reply letter, dated March 15, 2004, denying their (NTC’s) claim (Exh. G); that, thereafter, in March or April, 2004, be conferred personally with Carpio whom he asked for evidence showing that Salim received the good, and submitted copies of the cargo delivery receipts earlier submitted by Allied Shipping checker; that Carpio sent another letter to NTC, dated April 26, 2004, denying the claim of NTC (Exh. H); that the NTC management referred the matter to the Office of the Government Corporate Counsel (OGCC) which filed this case; that for OGCC’s services, NTC agreed to pay P100,000.00 at attorney’s fees; that CARE, on the other hand, prepared a report of Loss, Damage, etc. which it sent to the NTC containing the value of the lost relief goods

(Exhibits I, I-1 to I-17); that the figures contained in Exhibits I-17 and I-14 are not clear; that after receiving the claims of CARE, the NTC paid the same to CARE Philippines, as evidenced by the subrogation receipts issued by CARE, dated January 31, 2006 (Exh. K); July 10, 2002 (Exh. K-2); October 8, 2006 (Exh. K-3); February 27, 2003 (Exh. K-4); February 27, 2007 (Exh. K-5); June 29, 2007 (Exh. K-6); and June 29, 2007 (Exh. K-7), in the total amount of P3,295,475.03, out of which the plaintiff NTC has paid the total amount of P2,257,141.64. On cross-examination, the same witness testified that in December 2004, he went to Zamboanga City to conduct an investigation on the CARE goods and conferred with a representative of Allied Shipping; that when he learned that the commodities were no longer in the custody of Allied Shipping, he went back to Zamboanga; that he was not satisfied with the first investigation he conducted; that he was not able to pinpoint the persons responsible for the loss of the commodities; that he conducted further investigation and asked additional questions from Salim; that after talking to the checker of Allied Shipping, he wanted to test the credibility of Salim whose credibility he doubted to some extent; that he had several persons to suspect – Salim, the checker and other personnel of Allied Shipping and third parties, or a conspiracy of all of them; that the day before Salim resigned, he talked to him on February 2, 2005; that after asking Salim several questions; he was reluctant to answer and so, he postponed his investigation; that instead the following day, Salim sent somebody else to submit his resignation letter; that since Salim was one of his suspects, he asked him questions which would tend to show that Salim received, or know what happened to the commodities; that after February 3, 2005, he never saw Salim anymore; that he went back to the office of Allied Shipping at the Pier in Zamboanga and talked to the checker but did not write down his name in his report (Exh. N); that when he believed that he had completed his investigation; he made his report; that the Allied Shipping checker gave him copies of the cargo delivery receipts showing that Salim received the goods subject matter

of this case, and these are part of the exhibits (Exh. 4, dated October 17, 2003; Exh. 4-A, dated October 20, 2003; Exh. 4-B, dated October 25, 2003, and Exhibit 4-C, dated October 1999; and up to December 1999); that Helen Jacinto continued doing business with Allied Shipping after Salim resigned; that Salim was only five (5) years in service and not yet entitled to retirement (hearing of July 27, 2007); that he met Salim on February 2, 2005; that on February 3, 2005, Salim never showed up; that his meeting with a representative of Allied Shipping took place on February 4, 2004; that the Allied Shipping representative gave him copies of cargo delivery receipts; that he received some of the delivery receipts earlier in December 2004; that he showed the receipts to Salim who told him that the signatures are not his; that, except for some of the delivery receipts dated December, 2003 and January, 2004, the rest were submitted to him by a representative of Allied Shipping; that the delivery receipts, dated December 3, 2003, December 19, 2003, December 23, 2003, January 11, 2004, February 4, 2004, were received by him from the Allied Shipping representative in Zamboanga; that Salim denied having signed the said receipts when he showed them to him on the first week of December, 2003; that when he talked with Salim in their office, after receiving the delivery receipts from the representative of Allied Shipping, he did not ask Salim to go with him to Allied Shipping for confrontation with the representative of Allied Shipping who said Salim did not sign those receipts because of the peace and order conditions at that time; that there were constant bombings in the area and the relationship between Christian and Muslims was not good; that he did not know what would happen if there was confrontation between Salim and the Allied Shipping and he had no reason to doubt the signature of Salim; that he went back to Zamboanga in 2005 for further investigation because he was not satisfied with the outcome of his first investigation as he was unable to pinpoint the person responsible for the loss of the cargoes; that he went to Zamboanga to further investigate Salim because he doubted his credibility; that he

could not point to any definite person responsible; that on February 2, 2004 Salim was reluctant to answer his questions, while on February 3, Salim did not appear anymore at the scheduled conference, so that these facts strengthened his doubt on Salim’s credibility; that as of now, he has no reason, on the basis of the documentary evidence, about Salim’s guilt; that he had no participations in the hearing of Allied Shipping for the shipment of the goods; that it is stated at the back of the Bills of Lading (Exhs. D to D-8) that it should be released only to the consignee or his authorized representative; that there is nothing in the bill of lading which would prohibit Allied Shipping from delivering the cargoes to the consignee’s representative who would acknowledge receipt thereof in the cargo delivery receipt. (Hearing of August 20, 1996) Evidence for the defendants. 3. Ricardo Samson, first witness for the defendant testified on October 8, 2007 that he has been a delivery checker of Jose Razon Shipping Agency, with office at Zamboanga City, since 1999; that he took care of the delivery of cargoes from the port to the consignee or his authorized representative; that he required the production of the consignee’s copy of the original covering the particular shipment or a certified true copy thereof from their office; that upon production of said bill of lading, he checked the container van and its seal; that, if it is okay, he asks the consignee or his representative to break the seal and open the van and then they load the cargo of non-fat dry milk on the consignee’s truck; that they checked the cargo loaded on the truck and he counts them; that he then prepares the delivery receipt and have it signed by the consignee’s representative; that he knows NTC which has kept a branch in Zamboanga City from 1998; that he made deliveries to NTC; that the last time he made deliveries to it was from October to December, 2003, specifically to Hassan Salim whom he had known personally since 1998 when he was still a delivery checker for

Compania Maritima; that he started working as a delivery checker of Jose Razon Shipping Agency in August, 1999; that proof of the deliveries he made to Salim from October to December 2003 are the original and xerox copies of the cargo delivery receipts; that he has other original delivery receipts but they got lost because in 2006, their office was renovated and all records and files were placed temporarily in boxes; that said receipts got lost and cannot be located, despite diligent efforts to locate them; that exhibits 4, 4-a to 4-g, 4-q, 4-r are original copies, while exhibits 4-h to 4-p are xerox copies thereof; that he signed the cargo delivery receipts marked as Exh. 4-J and 4-J-1; 4-K and 4-K-11; 4-P and 4-P-1; 4-q and 4-q-1; 4-r and 4-r-1; that the other cargo receipts were signed by Angel de Leon, their head checker (Exhs. 4, 4-x-1 and 4-x-2; 4-q and 4-q-1; that the other cargo delivery receipts were signed by his co-checker Ismael Zamora (Exhs. 4-a and 4-a-1; 4-b and 4-b-1; 4-c and 4-c-1; 4-d and 4-d-1; 4-e and 4-e-1; 4-f and 4-f-1; 4-h and 4-h-1; 4-i and 4-i-1; 4-l and 4-l-1; 4-m and 4-m-1; 4n and 4-n-1; 4-o and 4-o-1; that aside from his signatures, he could identify the signatures of his co-checkers Armand Lara and Ariel Zumar because they have been working together for the same company for many years and he has seen them sign their signatures in his presence and he is familiar with their signatures; that he can identify the signatures appearing at the lower left-hand portion of the cargo delivery receipt. Exh. 4 (Rollo, p. 493), under the printed words reading: “Received the above in good order condition;” that in Exhibit 4, the signature appearing under the said printed word is that of Lito Asis, a representative of NTC who went to Allied Shipping when there is a shipment of the NTC to withdraw the cargo, and that his signature is familiar to him because there were several occasions when Asis signed the delivery receipts in his presence; that he does not know the signature (Exh. 4-a-2) appearing under the same printed words in the cargo delivery receipt, Exh. 4-a (Rollo, p. 494); that he does not know the signature (Exh. 4-b-a) appearing under the same printed words in the cargo delivery receipt marked as Exh. 4-B (Rollo, p. 495); that the

signature marked as Exh. 4-c-a, appearing on the delivery receipt, Exh. 4-c (Rollo, p. 496) is that of Lito Asis; that he does not know the signature (Exh. 4-D-2) appearing on the delivery receipt, Exh. 4-D (Rollo, p. 497); that the signature marked as Exh. 4-E-2 appearing on the delivery receipt marked as Exh. 4-E is that of Hassan Salim; that the signature marked as Exhibit 4-F-2 appearing on the delivery receipt marked as Exhibit 4-F (Rollo, p. 499) is that of Salim; that the signature marked as Exhibit 4-O-2 in Exhibit 4-O (Rollo, p. 508) is that of Salim; that the signatures marked as Exhibits 4-i-2; 4-j-2, 4-k-2, and 4-l-2 and appearing in the cargo delivery receipts, marked, respectively as Exhibits 4-i (Rollo, p. 502); 4-J (Rollo, p. 503); 4-K (Rollo, p. 504); and 4-l (Rollo, p. 505), are those of Asis; that he does not know the signatures of the consignee’s representatives marked as Exhibits 4-g-2, 4-m-2, 4-p-2, and 4-r-2, appearing in the cargo delivery receipts marked, respectively as Exhibits 4-g (Rollo, p. 501); 4-n (Rollo, p. 507), 4-p (Rollo, p. 509), 4-q (Rollo, p. 510), and 4-r (Rollo, p. 511); that with the representation of a certified true copy of the bill of lading stamped “Please release” by the person carrying it, ha had no doubt in releasing the cargo to such person. On cross-examination, the same witness testified that the cargoes covered by the delivery receipts, Exhibits 4-p, 4-q and 4-r, were delivered to the persons who presented the true copies of the delivery receipts and paid the handling charges, whom he presumed was a representative of the NTC; that their practice was to released the goods to the consignee or his authorized representative; that there were times when the consignee Hassan Salim went to the port just to make sure if the shipments were delivered to them; that Salim told them to just allow his driver, assistant, or brother to sign the delivery receipts because he has allegedly many other appointments to attend to; that Salim talked personally to him and Armand Lara, head checker; that the goods covered by the delivery receipts, Exh. 4-e, 4-f, 4-h and 4-o were signed by Salim in his presence. 4. Ismael Zamora, second witness for the defendant, testified on

October 29, 2007 that he has been a delivery and release checker of Jose Razon Shipping Agency from 1986 to the present; that he knows plaintiff NTC which frequently shipped goods through defendant Allied Shipping; that these were unloaded at the port and were brought to NTC warehouse by trucks belonging to Jose Razon Trucking; that January 2004 was the last time for them to deliver bags of non-fat dried milk; that from October 2003 to January 2004 they handled similar shipments of non-fat dried milk and, as a delivery checker, he delivered those cargoes to Hassan Salim, manager of NTC who received the cargoes himself; that he saw Salim personally receive the cargoes for every delivery made; that after he made the deliveries, he told Salim to sign the delivery receipts which he did sign either personally or made his companion sign; that he asked the consignee or his representative to sign the delivery receipts, Exhibits 4 to 4-r; that Exh. 4-x-1 is the signature of their head checker Armand Lara; that they were together and he saw him sign; that Exh. 4-x-2 is the signature of Lito Asis, assistant manager of Salim; that he saw Asis sign the delivery receipts whenever he received the goods; that Exh. 4a-1 is his signature; that Exh. 4-a-2 is his signature; that Exh. 4-b-2 is the signature of Salim’s subordinate; that Exhibit 4-c1 is his signature; that Exhibits 4-d-1, 4-e-1, 4-h-1; 4-i-1; 4-l-1; 4-m-1, 4-n-1 and 4-o-1 are his signatures; that Exhibits 4-d-2, 4-g-2 and 4-m-2, 4-n-2, 4-p-2, 4-q-2 are the signatures of Salim’s subordinate; that Exhibits 4-e-2, 4-f2, 4-h-2 and 4-o-2 are the signatures of Salim; that Exhibits 4-f-1 and 4-g-1 are the signatures of Armand Lara; that Exhibits 4-i-2, 4-j-2, 4-k2 and 4-l-2 are the signatures of Lito Asis; that Exhibits 4-j-1, 4-k-1, 4p-1, 4-q-1 and 4-r-1 are the signatures of his co-checker Ariel Zumar; that after the delivery of the cargo, the person who received the cargo signed the delivery receipt; that not all the delivery receipts were signed by Salim, some were signed by his subordinates, and this is so because sometimes Salim told him that he had other appointments and so he instructed his subordinates to sign the receipt in his absence; that during all the deliveries he made, Salim and his subordinates were

present. On cross-examination, the same witness testified that even if the consignee Hassan Salim was present all the time during the deliveries, there were times when he did not sign the delivery receipts because sometimes he went to attend some important appointments and left before the deliveries were completed and just directed his subordinates to sign for him (Hearing of November 17, 2007). 5. Atty. Ariel M. Luna, third witness for the defendant testified that he is the corporate secretary and administrative head of Allied Shipping; that on March 15, 2004, Allied Shipping, thru Artemio Carpio, head of its Claims Department, sent a reply-letter to NTC’s letter of March 11, 2004, relative to 5,824 bags of milk loaded on its vessels (Exh. 1); that Carpio conducted an investigation and then wrote another letter to NTC, dated April 26, 2004, informing him that the 5,824 bags of milk were delivered to the consignee Hassan Salim, the NTC authorized branch representative as per the Allied Shipping cargo delivery receipts and container list attached thereto (Exh. 2); that Allied Shipping received a letter, dated February 1, 1989, from Helen Jacinto, Domestic Freight Forwarding Operations Manager, NTC, stating that Hassan Salim was no longer authorized to represent NTC in whatever capacity, effective January 31, 2004, and that Antonio Evanglelista was appointed O.I.C for the NTC Zamboanga Branch (Exh. 3); that because of the filing of this case, Allied Shipping was compelled to engage the services of counsel for P150,000.00 and has further spent P60,000.00 to secure the attendance of witnesses from Zamboanga, including airplane tickets, hotel bills, allowances of witnesses and expenses of counsel in coming to court; and the cost of filing this case, plus moral damages for tainting the defendant’s reputation by filing this suit in the amount of P2,000,000.00 and exemplary damages in the amount of P1,000,000.00. On cross-examination, the same witness testified that the filing of this case affected the business credibility of the defendant and brought

hardship in soliciting business. (Hearing of January 23, 2008). On February 1, 2008, the same witness further testified that he prepared a summary of expenses incurred by LSC in this case (Exh. 4; Rollo, p. 492), with supporting documents. (Exhs. 4-a to 4-f; 4-h to 4n; Rollo, pp. 312-325.) From the evidence adduced by the parties during the trial, it is established that on April 20, 2003, plaintiff NSC and CARE entered into an Agreement under which they undertook to continue a Food Assistance Programs, a jointly sponsored nutrition project for preschool children and pregnant and nursing mothers, in support of which CARE bound itself to acquire by donation from the United States Government, food commodities (non-fat dried milk and other available USDA foods deemed suited to the need) for a three-year period beginning January 1, 2003 to December 31, 2004 (Exh. A); that in order to comply with such agreement, plaintiff NSC engaged the services of its co-plaintiff NTC to receive and store the commodities, including their transshipments and deliveries to various beneficiaries as may be directed by the Department of Health (DOH), as per the Contract of Services entered into on August 12, 2000 between NSC and NTC (Exh. B); that pursuant to its agreement with NTC, the DOH issued to NTC several delivery orders (Exh. C, C-1 to C-16) directing the latter to effect the shipment and delivery of non-fat dried milk to the Municipal Health Oficer (MHO), Isabela, West, Basilan (Exhs. C, C-1); to the MHO, Isabela North, Basilan (Exh. C-2); to the MHO, Lamitan East, Basilan (Exh. C-3); to the MHO, Lamitan West, Basilan (Exh. C-4); to the MHO, Lantawan, Basilan (Exh. C-5); to the MHO, Maluso, Basilan (Exh. C-6); to the MHO, Sumisip, Basilan (Exh. C-7); to the MHO, Tipo-tipo, Basilan (Exh. C-8); to the MHO, Tuburan, Basilan (Exh. C-9); to the Provincial Health Officer (PHO), Jolo, Sulu (Exh. C-10); to the PHO, Dipolog City (Exh. C-11); to the City Health Officer (CHO), Dapital City (Exh. C-12); to the CHO, Dipolog City (C-13); to the PHO, Pagadian City (C-14); to the CHO, Pagadian City (C-15); and to the CHO, Zamboanga City (Exh. C-16); that,

accordingly, on various dates in September and October, 2003, NTC shipped Five Thousand Eight Hundred Twenty Four (5,824) bags of non-fat dried milk to its consignee Hassan Salim, NTC Branch, Zamboanga City, thru various vessels of the common carrier, defendant Allied Shipping which issued the corresponding Bills of Lading in favor of NTC (Exhs. T-1, T-2, T-3; T-6; T-8; T-9; T-10 and T-11; Exhs. D, D-1, to D-8), with freight and wharfage dues prepaid in Manila in the total amount of P68,707.65 (Exhs. E, E-1, E-2, E-3, E-4, E-5, E-6, E-7 and E-8); that Hassan Salim was the consignee designated in all the bills of lading covering the various shipments (Exhs. L to L-1-a; N to N-1); that in a letter dated March 11, 2004 (Exh. F to F-3), plaintiff NTC demanded from the defendant Allied Shipping reimbursement of the value of the subject bags of non-fat dried milk, but said demand was denied on the ground that the said goods were already delivered to Salim (Exhs. C and H; 1 and 2). It appears that while Hassan Salim was the consignee named in all the bills of lading, and while he personally attended the deliveries of the individual shipments to NTC, together with his subordinates, there were times when, although present at the early stages of the deliveries, he had to leave in order to attend other appointments allegedly, and allowed or authorized his subordinates to continue receiving the deliveries and to sign the corresponding delivery receipts after the deliveries of the cargoes taken out of the container vans were completed. Ricardo Samson and Ismael Zamora, who were there, attested to the presence of Hassan Salim when Allied Shipping made its deliveries to NTC. Plaintiffs NTC and NSC never effectively rebutted these. They utterly failed to present Hassan Salim to refute or deny the same if they were not true. Hence, delivery of the commodities in question by Allied Shipping to NTC is established. It is also significant to point out that even Atty. Gregorio Lantana, second witness for the plaintiff, testified that on February 2, 2005, the day before Hassan Salim resigned from his position as Branch Supervisor of NTC, Zamboanga City, he talked to Salim. He asked

Salim several questions on the missing cargoes and the latter was reluctant to answer. And so, Atty. Lantana postponed his investigation to another day. Why was Salim reluctant to answer when he was the person responsible for the goods, being the consignee thereof and the Branch Supervisor of the NTC? According to Atty. Lantana, instead of appearing for further investigation the following day, Salim, whose credibility he doubted and who was one of his suspects, sent somebody else to submit his resignation letter; that Atty. Lantana wanted to ask Salim questions which would tend to show that he received or knew what happened to the commodities, but after February 3, 2005, he never saw Salim anymore. Salim’s avoidance of further investigation and his resignation from the NTC are telltale evidence of his guilt. “The wicked flee, even when no man pursueth, but the righteous are as bold as a lion.” Furthermore, why was Salim allowed to resign? Why were administrative charges not filed against him? And why was he not included as a party defendant in this case so that the plaintiffs could have recovered damages from him? Why was the government so weakkneed, fearful and impotent against Salim? Why? Why? Under the circumstances, and considering the evidence presented by the plaintiffs as against the unrebutted evidence for the defendant on the delivery of the commodities in question to Salim, the plaintiffs have failed to prove their causes of action by clear preponderance of evidence. Hence, their complaint must be dismissed. The defendant, on the other hand, must be awarded damages on its counterclaims which the court finds justified under the circumstances, by way of reimbursement for their expenses arising out of this litigation in the amount of P50,000.00 and attorney’s fees in the amount of P70,000.00. WHEREFORE, judgment is hereby rendered in favor of the defendant and against the plaintiffs, dismissing the latter’s complaint, and ordering the plaintiffs, pursuant to the defendant’s counterclaims, to pay, jointly and solidarily, to the defendant, actual damages in the

amount of P50,000.00, and attorney’s fees in the amount of P70,000.00 plus the costs of suit. SO ORDERED. Manila, May 14, 2008. (Name omitted) Judge

APPENDIX D Pointers in Answering School and Bar Examination Questions 1. Matters of Form If you were a bar candidate or just a law student preparing for a school exam, you could be writing your answer according to the following format: The Tagaytay City ordinance concerning memorial parks is unconstitutional. The Constitution provides that private property shall not be taken for public use without payment of just compensation. But mere government regulation of the use of private property to promote public welfare does not amount to taking of property. It is when property is appropriated and applied to some public purpose that there is taking that is compensable. Here, the ordinance does not merely regulate use of lots within the memorial park. Five percent of the lots are required to be given away for free to the poor of the city to promote their welfare. Consequently, there is taking without payment of just compensation. The ordinance is unconstitutional. What is wrong with this? First, it violates the ordinary rule of paragraphing. The first line is brought to the leftmost edge of the page while the succeeding lines are the ones that are indented. It is usually the other way around. Second, visually, it projects a solid wall, an obstacle course, that challenges the examiner to penetrate. “This one,” says the examiner,

“is giving me a hard work correcting his paper.” And the thing that lawyers hate most is hard work. Would the following format be more agreeable to the eye? Definitely. 8. The issue is whether or not Alfredo’s dismissal violates his freedom of religious worship and its free exercise. The Constitution provides that the free exercise and enjoyment of religious worship without preference shall forever be allowed. Indeed, in the hierarchy of values, such freedom is deemed superior to contractual and property rights. Here, to Alfredo, Sabbath is not a day for work but for worship just as much as most others believe that Sunday is a day of rest and worship. If he is dismissed because of the exercise of his freedom, the dismissal is unconstitutional. Here, the number tag of the question you are answering is placed at the center of the first line. But you could also put it before the first word of your answer, if that is what you prefer. Like the above, observe paragraphing when you shift from one idea to the next. Paragraph breaks give the examiner a brief respite after each point. Visually, his task seems easier when divided into short or medium length paragraphs. You make the examiner’s journey through your notebook easier. Always start on a new page for every numbered question. It is neat and turning to a new page gives the examiner a sense of accomplishment in correcting your notebook. 2. Making corrections When correcting a mistake, simply run a line across the erroneous word or sentence. For example:

The President dismissed the mayor. Here, if you want to change the word “dismissed” to “suspended,” simply run one line across the word you want to change, and then write the correct word over it if the space permits. Otherwise, run the line thru the rest of the sentence and rewrite it like this: The President dismissed the mayor suspended the mayor. 3. Budgeting time Always budget your time. Count the numbers of questions asked and divide these by the time available to you. That will give you an idea of how much time you have to spend on each item. At halftime, check where you are and consider working faster when you have fallen behind. It would be a pity if you have to pass your notebook with some questions left unanswered. You suffer full deductions for every unanswered question. In a question that requires you to give a reason for your answer, you would always get some points for a plausible answer even if it is essentially wrong. On the other hand, if you work in haste, you could miss one item in the set of questions. Since, an unanswered item suffers a full deduction, this can make the difference between your passing and failing the exam. Consequently, you might want to consider placing a checkmark on each item you have already answered so you will know if you missed any. 4. Enumeration questions Sometimes, examiners would ask you enumeration questions like what the elements of a particular crime are or what marriages are void from the beginning. When you are certain of your answer, you might answer the last question like this: The following marriages are void from the beginning: 1. Those contracted by any party below eighteen years of age even with the consent of parents and guardians; 2. Those solemnized by any person not legally authorized to

perform marriages unless such marriages were contracted with either or both parties believing good faith that the solemnizing officer had the legal authority to do so; 3. Those solemnized without license, except those covered by the preceding; 4. Those bigamous and polygamous marriages not falling under Article 42; 5. Those contracted through mistake of one contracting party as to the identity of the other; and 6. Those subsequent marriages that are void under Article 53. But, when you are unsure of your answer or could not give all that are required, do not number your enumerations. Use the colon and semi-colons like this: The following marriages are void from the beginning: those contracted by any party below eighteen years of age even with the consent of parents and guardians; those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing good faith that the solemnizing officer had the legal authority to do so; those contracted through mistake of one contracting party as to the identity of the other; and those subsequent marriages that are void under Article 53. As a rule, the examiner scans the answers and will rarely go back to count what you wrote. He will decide by impression. If you write it this way, the examiner would likely assume that you have put in everything. 5. Problem questions Students of law usually come from different educational backgrounds, not all of them with suitable preparations for resolving legal problems. You probably first encountered the essay-type of test questions in high school. And, most likely, no one taught you how to

write an essayed answer. Still, your teachers somehow allowed your work to pass, giving you a sense that you had done right. Since your method worked for you in high school, you brought it with you to college. Again, you may have managed to get by on it. Then, you entered law school. But law maintains an intellectual discipline all its own. Unfortunately, a number of you may not have fully adapted to that discipline and have refused to change your answering pattern. Although you have moved into a new city, you still use the map of the old city. No wonder you sometimes get lost. For most parts, presenting a sound legal position on any question follows the mold of the classic categorical syllogism. Although no one can say that answers to problem questions must follow a fixed model, you would not make a mistake if you use this syllogism as such model. It is exemplified by this problem and answer: Problem: Is Carlos mortal? Answer: All men are mortal. Carlos is a man. Therefore, Carlos is mortal. The first part of the answer states the rule as to who are regarded as mortal, thus, “All men are mortal.” It is a rule statement. The second part of the answer applies the rule to the fact of the case, thus, “Carlos is a man.” The rule that all men are mortal applies to Carlos because he is a man. The third part of the answer is the conclusion, “Therefore, Carlos is mortal.” But, by the nature of rules, they are hardly ever absolute. They often recognize exceptions to their applications or on occasions need to be interpreted to meet the peculiarities of specific cases. For instance, suppose the last problem is altered somewhat: Problem: Is Helen mortal? Answer: All men are mortal; men include women.

Helen is a woman. Therefore, Helen is mortal. The statement “all men are mortal“ gives the general rule. The statement that “men include women” acknowledges a relevant interpretation of that rule. The statement, “Helen is a woman,” applies the rule to Helen. The conclusion is then drawn that Helen is mortal. The same pattern: rule, application to case, and conclusion can be used in answering problem questions in classrooms and bar examinations. For a deeper understanding of legal logic, read Chapters 6, 7, and 8 of this book. But consider adding an introduction or topic statement to your answer pattern. The topic statement introduces the subject of your answer. It helps orient the examiner to the particular problem that you are about to tackle. If you are certain of your answer, it would be preferable that, for topic sentence, you write down your thesis or the position you have taken with respect to the issue that the problem presents, e.g., “Helen is mortal.” If not, just state the issue and make it your topic sentence, e.g., “The issue is whether or not Helen is mortal.” Your answer pattern will now be: Topic, Rule, Application to case, and Conclusion or TRAC. Let us have a simple legal problem: Problem: Jose crossed the red light while driving an ambulance in an emergency. Did he violate the rule that punishes crossing the red light? Answer: [T] Jose should be punished for crossing the red light while driving an ambulance in an emergency. (Alternative topic sentence: The issue is whether or not Jose should be punished for crossing the red light while driving an ambulance in an emergency.) [R] Crossing the red light is punishable by law (the general rule) but driving an ambulance on an emergency is exempt (an exception). [A] Jose crossed the red light while driving an ambulance on an emergency.

[C] Therefore, Jose did not violate the rule that punishes crossing the red light. Examiners rarely use simple problems. The trick is that they prefer asking questions involving the application, not of the general rule or law itself, but of judicial interpretations of that law or the exceptions to it. Now let us take up an actual bar examination problem. It says: Section 10 of Ordinance No. 105 of Tagaytay City provides that at least 5% of the total area of any memorial park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. The City argues that it is within its powers to pass said ordinance; that the ordinance is a valid exercise of police power; and that the portion taken is for public use, the same being intended for paupers pursuant to its duty to provide for the health and safety of its inhabitants. Discuss the constitutionality of said ordinance. Before tackling the problem, however, you need to get a clear understanding of its facts. The trick is to sort out the relevant facts from the irrelevant. To be able to do this, you need to identify the issue that the problem presents. In most cases it is found at the end of the problem. Here, it is found in the sentence: Discuss the constitutionality of said ordinance. You can encircle or underline it to get a correct focus on what you need to answer because bar candidates or students are often distracted by other aspects of the problem. Transposed in the format of an issue, it reads: whether or not the ordinance is constitutional. So, having identified the issue, you are now ready to work on the facts and sort out the relevant from the irrelevant. What facts are

relevant to the constitutionality of the ordinance? The answer is simple: it is the provision of the ordinance that affects the rights of the owner of the memorial park. Since no rule stops you from writing notes on the questions sheet, feel free to go over the facts and underline those that are relevant to the issue. Are the number and section of the ordinance relevant to its constitutionality? No. How about the fact that it was enacted by Tagaytay City? Neither. As already stated, go for the provision of the ordinance that affects the right of the owners of memorial parks. Thus, the ordinance “provides that at least 5% of memorial park…be set aside for charity burial…” or “no permit to operate… shall be granted.” You may skip the words “establish” and “maintain” as redundant but you must underline the phrase “without the applicant’s conformity,” being relevant to the owner’s exercise of his right. The words “agreeing to such condition” is redundant. In the next paragraph, underline the “City argues that it is within its powers to pass said ordinance” and “a valid exercise of police power” since this is the city’s argument that its ordinance is constitutional. But skip “and that the portion taken is for public use, the same being intended for paupers pursuant to its duty to provide” since the relevant provisions of the ordinance already states this. Finally, underline “for the health and safety of its inhabitants” since this goes into the exercise of police power. This is how the problem would appear on the questionnaire after you underline the relevant facts: Section 10 of Ordinance No. 105 of Tagaytay City provides that at least 5% of the total area of any memorial park established within its jurisdiction shall be set aside for charity burial of its pauper residents and that no permit to establish, operate, and maintain a private memorial park shall be granted without the applicant’s conformity or agreeing to such condition. The City argues that it is within its powers to pass said ordinance; that the

ordinance is a valid exercise of police power; and that the portion taken is for public use, the same being intended for paupers pursuant to its duty to provide for the health and safety of its inhabitants. Discuss the constitutionality of said ordinance. Without the words that we skipped, the question would read like this: Ordinance … provides that at least 5% of … memorial park … be set aside for charity burial … no permit to … operate … without the applicant’s conformity. City argues … it is within its powers to pass said ordinance … a valid exercise of police power … for the health and safety of its inhabitants. Discuss the constitutionality of said ordinance. Does the above present the question more clearly? Definitely! For a more extensive discussion of the facts and the issues of a case, read Chapters 3 and 5 of this book. Now that you have identified the issue and checked out the relevant facts, you are ready to look for the applicable rule. This is actually your problem-solving stage. Here, it would be best to do a little prework on the margin of your questionnaire. What law or principle applies to the problem concerning the ordinance that requires owners of memorial parks to give 5% of their lands to the poor for free? Is it an exercise of police power, like an ordinance that requires owners of land to set back their houses three meters from their property line to maintain an aesthetic environment? Or is it an exercise of the power of eminent domain, like an ordinance expropriating private land for use in road building? The answer is the second since the ordinance does more than regulate use of property. It takes title to part of the memorial park from the owner. Thus, begin your answer by stating the general rule provided in the Constitution

that “Private property shall not be taken for public use without payment of just compensation.” But remember this. Like the crossing-the-red-light case, the examiner is usually not after the application of the general rule per se. That is too elementary. He is usually after the interpretation of the general rule or its exception. How has the rule that “private property shall not be taken for public use without just compensation” been interpreted? Does any one of these interpretations apply to our case? Let us consider various interpretations and choose the right one: –– There is taking of private property for public use when the government invades the property in a permanent in character. –– Taking by the national government of the property of local government is compensable taking. –– Mere government regulation of the use of private property is not “taking” that requires compensation. –– There is taking of private property for public use when the government takes the title over the property from the owner. The first interpretation (there is taking of private property for public use when the government invades the property in a permanent in character) is not relevant to the issue since the government did not forcibly take possession of or invade the property in our case. The second interpretation (taking by the national government of the property of local government is compensable taking) is also not relevant since the case involves private land. But the third interpretation (mere government regulation of the use of private property is not “taking” that requires compensation) is relevant. This is the position taken by the city government on the issue raised in the case. The fourth interpretation (there is taking of private property for public use when the government takes the title over the property from

the owner) is relevant since the government wanted to take ownership of 5% of the land so it can give them to the poor. Is there an exception in which the government can take private property and not have to pay for it? There is one exception: the taking is not compensable in cases of destruction of injurious private property. Example is bird-flue infestation of privately owned chicken farms. The government can order their destruction to prevent the spread of the decease without having to pay just compensation. Does this apply to our case? No. Then do not include it in your answer. After such pre-work, you are now ready to write you answer using the TRAC model (topic, rule, application to case, and conclusion): 5. The Tagaytay City ordinance concerning memorial parks is unconstitutional. (Alternative topic statement: The issue is whether or not the Tagaytay City ordinance concerning memorial parks is unconstitutional.) The Constitution provides that private property shall not be taken for public use without payment of just compensation. Mere government regulation of the use of private property to promote public welfare does not amount to taking of that property. It is when the government takes the title over the property that there is taking that is compensable. Here, the ordinance does not merely regulate use of lots within the memorial park. The government takes five percent of the lots so it could give them free to the poor of the city. Consequently, there is taking without payment of just compensation. The ordinance is unconstitutional. Answers need not be long-winded. Give a straight answer and you would be able to finish your exam early and help the examiner facilitate correction of your booklet. Long answers do not help. Here is another sample problem. 8. Alfredo was a government employee in the Department of

Agriculture. After reading some verses in the Bible closely, he came to believe in his heart that Sabbath fell on Wednesdays, not on Sundays, as others believe. Consequently, he refused to report for work on Wednesdays despite several warnings from his superiors concerning it. Because of his habitual absence during Wednesdays, his superiors dismissed him from work. He sought reconsideration of the dismissal but this was denied. Is his dismissal from work a violation of the freedom of religion provided by the Constitution? Explain your answer. Like the previous problem, you must first sort out the facts. In sorting them out, be guided by the issue that the examiner presents. And where do you find the issue in this problem? Again, it is towards the end of the problem: “Is his dismissal from work a violation of the freedom of religion provided by the Constitution?” You can encircle or underline it. Transpose it then into the format of an issue and it will read: whether or not Alfredo’s dismissal from work violates his freedom of religion. Having identified the issue, you can further work on the facts of the case to determine what facts are relevant to the determination of validity of Alfredo’s dismissal from work. With this in mind, the facts that you need to underline are: 8. Alfredo was a government employee in the Department of Agriculture. After reading some verses in the Bible closely, he came to believe in his heart that Sabbath fell on Wednesdays, not on Sundays as others believe. Consequently, he refused to report for work on Wednesdays despite several warnings from his superiors concerning it. Because of his habitual absence during Wednesdays, his superiors dismissed him from work. He sought reconsideration of the dismissal but this was denied. Is his dismissal from work a violation of the freedom of religion provided by the Constitution? Explain your answer. Without the words that we skipped, the question would read like

this: Alfredo … a government employee … believes in his heart that Sabbath fell on Wednesdays … Because of his habitual absence during Wednesdays, his superiors dismissed him from work … a violation of the freedom of religion …? With the relevant facts and the issue known, your next step is to search for the applicable general rule, and its interpretations or exceptions. Apparently, the general rule that applies to the case is found in the Constitution, thus, “The Constitution provides that the free exercise and enjoyment of religious worship without preference shall forever be allowed.” A relevant interpretation of this general rule would be one made by the Supreme Court: “Indeed, in the hierarchy of values, such freedom is deemed superior to contractual and property rights.” The right to dismiss an employee is implicit in a contract of employment. Following the TRAC model, the answer would read something like this: 8. The issue is whether or not the dismissal violates the freedom of religious worship and its free exercise. (Alternate topic sentence “The dismissal violates the freedom of religious worship and its free exercise.”) The Constitution provides that the free exercise and enjoyment of religious worship without preference shall forever be allowed. Indeed, in the hierarchy of values, such freedom is deemed superior to contractual and property rights. Here, to Alfredo, Sabbath is not a day for work but for worship just as much as most others believe that Sunday is a day of rest and worship. If he is dismissed because of the exercise of his freedom, the dismissal is unconstitutional.

Actually, the answer is wrong but it is logical and written well. It is certain to earn significant points for the student or candidate. Developing an ability to answer questions clearly and logically already improves your chances of passing your exam. Now, here is an actual question asked in the bar. The facts are short but you can still underline the relevant facts as was done in previous examples: 2. A and B were married on January 1, 1980. Two weeks later, on their way home from honeymoon, the car A was driving turned turtle. A died instantly while B was unharmed. A month thereafter, B had illicit relations with C. On October 5, 1980, B gave birth to X. In X’s birth certificate, B declared that X’s father is C. Resolve the issue of X’s paternity with reasons. Here is the topnotcher’s answer. Although he used the TRAC model, he omitted the T or topic sentence, something that you could also do. 2. Under the Civil Code of the Philippines, a child born after 180 days following the celebration of marriage and within 300 days following its dissolution is presumed legitimate [the general rule]. Against that presumption, only physical impossibility of access between the couple during the first 120 days of the 300 days, which preceded the birth of the child, can be used [the exception]. In this case, X was born within the period above contemplated. There was no physical impossibility of access between the spouses A and B during the early part of the first 120 days that preceded the birth of the child the fact being that they were on their honeymoon prior to A’s death. The fact that the mother declared against the legitimacy of the child is inconsequential. This the law expressly provides. X is the legitimate child of A and B. Here is another sample problem:

3. Patrick and Liza were married by the Provincial Governor of Cagayan. At the time of the celebration of their marriage, both spouses believed in good faith that provincial governors had the authority to solemnize marriages. What is the status of the marriage? Support your answer. Using the TRAC model, one student answered it in this manner: 3. The marriage between Patrick and Liza is valid. Under the Family Code, one of the requisites of a valid marriage is the authority of the solemnizing officer. But lack of authority will not impair the validity of the marriage if either or both of the parties believed in good faith through mistake of fact that the solemnizing officer had such authority, without prejudice to the civil or criminal liability of such officer. Here, since both spouses believed in good faith that Reverend Juan Sanchez was a priest with authority to solemnize marriage, their marriage shall be regarded as valid but Sanchez may be civilly or criminally prosecuted. The reference to the liability of the unauthorized officer is irrelevant to the issue that the case presents. Students or bar candidates have the tendency to bear away from the issue and address other concerns probably to show that they know more than just what was being asked of them. The result is not what they expect. Addressing an irrelevant point often results in a deduction from what could have been a perfect score. Stay on the issue. Do not digress from it. 6. Multiple Choice Questions Multiple-choice questions are actually a matching test. You have the main stem of the question on the one hand and the several choices of answers on the other. But the point of every question is the same. You are expected to match the main stem with the correct choice of answer. Questions are usually of several types. Here are some samples. a) Name the thing described.

A party’s allegation in a pleading filed in another case [the main stem of the question] constitutes (a) extrajudicial admission (b) judicial admission (c) hearsay evidence (d) privileged matter [the choices]. The main trick in answering multiple-choice questions is to apply a process of elimination. You sometimes have four or three answers to choose from. Usually, if there are four choices, two are definitely and clearly inappropriate. They are outright dummies and you can call them that. In the problem, answers (c) and (d) are the dummies since a party’s statement in his pleading is neither hearsay matter nor is privileged. Answer (b) is a correct characterization of a party’s allegation in his pleading. It seems acceptable but is actually a wrong answer and for that reason you can call it the phony. It is a wrong answer because the pleading where the allegation is found has been filed in another case. What remains is (a), the correct answer. It is the correct answer because an admission made outside the courtroom constitutes extrajudicial admission. Here is another sample of the “name the thing” variety: The law that will determine jurisdiction over a particular case [the main stem of the question] is the law in force at the time (a) the summons is served (b) the cause of action accrued (c) the action is filed (d) the issues in the action are joined [the choices]. Answers (a) and (d) are the dummies because they are clearly inapplicable. Answer (c) is the phony because, although the filing of the action constitutes judicial demand and arrests the running of the prescriptive period, it is the wrong answer. The correct answer is (b) because it is only at the commencement of the action that the jurisdiction of the court over it can be known. b) Complete the sentence. Positively stated, police power is the power (a) to ensure equal protection (b) to maintain peace and order (c) to call on the armed forces to suppress lawlessness (d) to enact laws that promote the public

welfare. Answers (a) and (c) are the dummies because they are clearly inapplicable. Answer (b) is the phony because, although the term police is associated with peace and order, it is the wrong answer. The correct answer is (d) because police power is actually has to do with making reasonable laws and rules. Another sample: Laws enjoy the presumption that they are (a) needed (b) constitutional (c) published (d) accepted. Answers (c) and (d) are the dummies because they are clearly inapplicable. Answer (a) is the phony because, although laws may be presumed needed, it is irrelevant in the context of the fact the question is asked in a political law exam. The correct answer is (b) because laws are presumed constitutional. c) Find the rule that applies to the facts. A law that provides for the drafting of only able-bodied men, not women, to fight the rebels in Mindanao (a) is consistent with, (b) violates, (c) is irrelevant to, (d) champions, the right to equal protection. If the party offering a mere photocopy of a document intentionally destroyed the original, (a) the original will be presumed adverse to him (b) he will be barred from offering the photocopy (c) he will be punished for contempt (d) his action will be dismissed. Try to answer the above yourself. Identify the dummies, the phony, and the correct answer among the choices. Do the same in the following varieties of multiple choice questions. d) Find the facts on which the rule applies. Fire marshals may conduct administrative searches of houses to check on violations of the fire code provided they have (a) inspection orders from the fire chief (b) the city council’s

approval (c) a search warrant (d) their badges. Censorship of motion picture is allowed to guard the public against (a) evil deeds (b) bad acting (c) excessive admission fee (d) obscenity. e) Find the right exception to the rule. Under the parole evidence rule, when an agreement is in writing, no evidence of the terms of such agreement can be presented except (a) the written agreement itself (b) the testimony of the parties regarding those terms (c) secondary evidence of such agreement. f) Find the correct interpretation of a rule. Constitutional equality accepts the need for classifying men, ideas, and things provided that such classifications are (a) desirable (b) reasonable (c) indispensable (d) understandable. g) Find the legal justification for an act. President Aquino denied admission of former president Ferdinand Marcos into the Philippines under her power (a) to protect national security (b) to maintain peace and order (c) to enforce a judicial order (d) to direct foreign relation. The law requiring registration of labor unions does not violate the freedom of association because (a) such registration is for listing purposes only (b) unionism needs regulation for the protection of their members (c) registration is needed to give unions juridical personalities (d) the interest of the State is paramount.