Legal and Judicial Writing

PHILJA
The
OCTOBER - DECEMBER 2002 VOL. 4, ISSUE NO. 14

UDICIAL
OURNAL
Decision
and
Le
Leggal Writing
i
PHILJA
The
OCTOBER-DECEMBER 2002 VOL. 4, ISSUE NO. 14 UDICIAL

OURNAL
D ECISION
A ND
L EGAL W RITING
I. D ECISION W RITING
Decision Writing
The Four Cs of Effective
Decision-Writing: An Introduction
for Newly Appointed Judges
Decision Writing
Writing and Writing Style
Writing of Decisions and Resolutions
The Architecture of Argument
II. L EGAL W RITING

Writing Style
Plain English
Case Analysis and Legal Writing
III. L EGAL L OGIC

Legal Logic
iv
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PHILJA udicial JJour
our nal.
ournal.
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v
SUPREME COURT OF THE PHILIPPINES
CHIEF JUSTICE
Hon. HILARIO G. DAVIDE, Jr.
ASSOCIATE JUSTICES
Hon. JOSUE N. BELLOSILLO
Hon. REYNATO S. PUNO
Hon. JOSE C. VITUG
Hon. VICENTE V. MENDOZA
Hon. ARTEMIO V. PANGANIBAN
Hon. LEONARDO A. QUISUMBING
Hon. CONSUELO YARES-SANTIAGO
Hon. ANGELINA SANDOVAL-GUTIERREZ
Hon. ANTONIO T. CARPIO
Hon. MA. ALICIA AUSTRIA-MARTINEZ
Hon. RENATO C. CORONA
Hon. CONCHITA CARPIO-MORALES
Hon. ROMEO J. CALLEJO, Sr.
Hon. ADOLFO S. AZCUA
COURT ADMINISTRATOR
Hon. PRESBITERO J. VELASCO, Jr.
DEPUTY COURT ADMINISTRATORS

Hon. ZENAIDA N. ELEPAO
Hon. JOSE P. PEREZ
Hon. CHRISTOPHER O. LOCK
CLERK OF COURT
Atty. LUZVIMINDA D. PUNO
ASST. COURT ADMINISTRATORS

Atty. ANTONIO H. DUJUA
Atty. ISMAEL G. KHAN, Jr.
(Chief, Public Information Office)
Atty. CARLOS L. DE LEON
ASST. CLERK OF COURT

Atty. MA. LUISA D. VILLARAMA
DIVISION CLERKS OF COURT

Atty. VIRGINIA A. SORIANO
Atty. TOMASITA M. DRIS
Atty. JULIETA Y. CARREON
vi
PHILIPPINE JUDICIAL ACADEMY

Board of Trustees
Hon. HILARIO G. DAVIDE Jr.

Chief Justice
Chairman
Hon. JOSUE N. BELLOSILLO

Senior Associate Justice, Supreme Court
Vice-Chairman
Members
Hon. AMEURFINA A. MELENCIO HERRERA Hon. PRESBITERO J. VELASCO, Jr.
Chancellor Court Administrator
Hon. CANCIO C. GARCIA Hon. MINITA CHICO-NAZARIO

Acting Presiding Justice, Court of Appeals Acting Presiding Justice, Sandiganbayan
Hon. MARINO M. DE LA CRUZ, Jr. Dean ROMULO V. BORJA

President, Philippine Judges Association Exec. Vice-President, Philippine Association of Law Schools
Hon. ILUMINADA C. CORTES

Executive Judge, Presiding Judge, MTCC, Br. 4, Baguio City
Executive Officials
Hon. AMEURFINA A. MELENCIO HERRERA Hon. ANTONIO M. MARTINEZ
Chancellor Vice-Chancellor
Hon. PRISCILA S. AGANA
Executive Secretary
Heads of Offices
Hon. ANTONIO M. MARTINEZ Fr. RANHILIO C. AQUINO
Administrative Office Academic Affairs Office
Prof. SEDFREY M. CANDELARIA Hon. BERNARDO T. PONFERRADA

Research and Linkages Office Judicial Reforms Office
Academic Council
Hon. AMEURFINA A. MELENCIO HERRERA
Chair
Dr. PACIFICO A. AGABIN Hon. RICARDO C. PUNO

Constitutional Law Civil Law
Hon. OSCAR M. HERRERA, Sr. Hon. ROMEO J. CALLEJO, Sr.

Remedial Law Criminal Law
Hon. PRESBITERO J. VELASCO, Jr. Hon. HILARION L. AQUINO

Court Management Ethics and Judicial Conduct
Prof. CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING

Commercial Law International and Human Rights Law
Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO

Jurisprudence and Legal Philosophy Legal Method and Research
ACA ANTONIO H. DUJUA Atty. IVAN JOHN E. UY

Special Areas of Concern Court Technology
vii
Justice Ameurfina A. Melencio Herrera

Chancellor
Professor Sedfrey M. Candelaria

Editor-in-Chief
Editorial Advisers
Dr. Pacifico A. Agabin, Constitutional Law

Justice Ricardo C. Puno, Civil Law
Justice Oscar M. Herrera, Sr., Remedial Law
Justice Romeo J. Callejo, Sr., Criminal Law
Justice Presbitero J. Velasco, Jr., Court Management
Justice Hilarion L. Aquino, Ethics and Judicial Conduct
Prof. Cesar L. Villanueva, Commercial Law
Dr. Purificacion V. Quisumbing, International and Human Rights Law
Fr. Ranhilio C. Aquino, Jurisprudence and Legal Philosophy
Prof. Myrna S. Feliciano, Legal Method and Research
ACA Antonio H. Dujua, Special Areas of Concern
Atty. Ivan John E. Uy, Court Technology
Editorial Staff
Copy Editing Layout and Design

Melanie H. Perez Queency M. Sara
Editorial Assistance Circulation

Blythe M. Lumague Armida M. Salazar
Printing Services
Emmanuel C. Ignacio

VOLUME 4 ISSUE NO. 14 OCTOBER -DECEMBER 2002
THE PHILJA JUDICIAL JOURN

PHILJA AL
JOURNAL
CONTENTS
OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ........... v

OFFICERS OF THE PHILIPPINE JUDICIAL ACADEMY ........................ vi
I. DECISION WRITING
DECISION WRITING
Justice Reynato S. Puno ................................................................. 1
THE FOUR CS OF EFFECTIVE DECISION-WRITING:

AN INTRODUCTION FOR NEWLY APPOINTED JUDGES
Justice Artemio V. Panganiban .................................................. 29
DECISION WRITING
Justice Lucas P. Bersamin ............................................................. 53
WRITING AND WRITING STYLE

Justice Lucas P. Bersamin ............................................................. 72
WRITING OF DECISIONS AND RESOLUTIONS

Justice Hugo E. Gutierrez (ret.) ............................................... 97
THE ARCHITECTURE OF ARGUMENT

Dr. James C. Raymond, PhD ................................................... 111
CONTENTS
II. LEGAL WRITING
WRITING STYLE
Justice Camilo D. Quaison ....................................................... 140
PLAIN ENGLISH
Dr. James C. Raymond, PhD ................................................... 152
CASE ANALYSIS AND LEGAL WRITING

Prof. Myrna S. Feliciano ........................................................... 185
III. LEGAL L OGIC

LOGIC
LEGAL LOGIC
Fr. Ranhilio C. Aquino, PhD, JD ........................................ 223
CONTENTS
I. DECISION WRITING
DECISION WRITING
Justice Reynato S. Puno
I. INTRODUCTION ................................................................................ 2
II. FORM OF DECISION ........................................................................ 3
III. TECHNIQUES IN DECISION-MAKING ........................................ 20
IV. CONCLUSION ..................................................................................... 27
THE FOUR CS OF EFFECTIVE DECISION-WRITING:

AN INTRODUCTION FOR NEWLY APPOINTED JUDGES
Justice Artemio V. Panganiban
I. COMPLETENESS ............................................................................ 31
II. CORRECTNESS .............................................................................. 45
III. CLARITY ........................................................................................ 49
IV. CONCISENESS ............................................................................... 51
V. FINAL WORD ............................................................................... 52
DECISION WRITING
Justice Lucas P. Bersamin
I. INTRODUCTION ....................................................................... 55
II. FORM AND CONTENTS
OF WRITTEN LEGAL DECISIONS ........................................ 55
III. WHY FACTUAL AND LEGAL FINDINGS
SHOULD BE STATED IN THE DECISION .............................. 57
IV. STYLE AND LENGTH OF DECISIONS ................................... 58
V. DECISION AND OPINION, DISTINGUISHED ...................... 60
VI. QUALITIES OF AN EFFECTIVE DECISION ........................... 61
VII. POWER OF WORDS IN COMMUNICATING
THE INTENDED MEANING FORCEFULLY ............................ 64
VIII. REFERENCES ............................................................................. 65
CONTENTS
WRITING AND WRITING STYLE

I. LEGAL WRITING .......................................................................... 74
II. REFERENCES .................................................................................. 85
III. CONCLUSION ................................................................................. 92
WRITING OF DECISIONS AND RESOLUTIONS

Justice Hugo E. Gutierrez (ret.)
I. INTRODUCTION ....................................................................... 99
II. TWO-FOLD NATURE OF OBJECTIVES ............................... 99
III. REQUIREMENTS OF LAW AND THE
RULES OF COURT ................................................................. 101
IV. DECISION, JUDGMENT AND RESOLUTION ...................... 102
V. PARTS OF THE DECISION .................................................... 103
VI. STATEMENT OF THE FACTS OF THE CASE AND THE
APPLICATION OF LAW TO THOSE FACTS ......................... 104
VII. ADDITIONAL POINTS TO CONSIDER ................................ 106
VIII. ATTENTION TO FORM AND STYLE .................................. 108
IX. THE PERSONALITY OF THE JUDGE .................................. 110
THE ARCHITECTURE OF ARGUMENT

Dr. James C. Raymond, PhD
I. INTRODUCTION .................................................................... 112
II. THE UNIVERSAL LOGIC OF THE LAW ........................... 113
III. A UNIVERSAL OUTLINE FOR JUDGMENTS, BRIEFS,
MOTIONS, AND OTHER SUBMISSIONS ............................ 114
IV. A SEVEN-STEP RECIPE FOR ORGANIZATION ............... 117
CONTENTS
II. LEGAL WRITING
WRITING STYLE
Justice Camilo D. Quaison
I. INTRODUCTION ........................................................................... 141
II. STAGES OF WRITING PROCESS ................................................. 142
III. ELEMENTS OF EFFECTIVE STYLE ...................................... 143
IV. POINTERS ON STYLE .................................................................. 144
PLAIN ENGLISH
I. INTRODUCTION .................................................................... 154
II. VISIBLE ELEMENTS OF STYLE ........................................... 158
III. INVISIBLE ELEMENTS OF STYLE ........................................ 173
IV. TESTING FOR PLAIN ENGLISH .......................................... 183
CASE ANALYSIS AND LEGAL WRITING

Prof. Myrna S. Feliciano
I. INTRODUCTION .................................................................... 188
II. BASIC CHARACTERISTICS OF JUDICIAL OPINIONS ........ 190
III. BRIEFING A CASE .................................................................. 194
IV. ANALOGIZING AND SYNTHESIZING ................................. 197
V. FORMULATING ARGUMENTS AND USING PERSUASIVE
WRITING TECHNIQUES ...................................................... 200
VI. CASE RESOLUTION .............................................................. 209
VII. RULES IN LEGAL WRITING ................................................ 215
VIII. CONCLUSION ........................................................................ 222
CONTENTS
III. LEGAL L OGIC

LOGIC
LEGAL LOGIC
Fr. Ranhilio C. Aquino, PhD, JD
I. INTRODUCTION ............................................................................. 223
II. STRUCTURE OF LEGAL REASONING .......................................... 224
III. DEDUCTIVE REASONING IN LAW ............................................... 228
IV. ANALOGICAL REASONING IN LAW ...................................... 231
V. INDUCTIVE REASONING IN LAW ......................................... 232
Decision Writing
Justice Reynato S. Puno
Supreme Court
I. INTRODUCTION ................................................................................... 2
II. FORM OF DECISION ............................................................................ 3
A. Constitutional Framework
B. Form
1. Findings of Facts
2. Statement of the Law
3. Dispositive Portion
C. Decisions of the Supreme Court
1. On Findings of Facts
2. Consequences Where There are No Findings of
Facts
3. Ready-Made Decision Set Aside
4. Memorandum Decision
5. Relating to the Dispositive Portion of the
Decision
Justice Reynato S. Puno was appointed Associate Justice of the

Supreme Court in 1993, later becoming the Chairman of its
First Division. He also chairs the Court Systems Journal and
the Supreme Court Committee which digests the Courts
decisions, and heads the Committee on Revision of the Rules
of Court. He obtained his Bachelor of Science Degree in
Jurisprudence and Bachelor of Laws Degree from the University
of the Philippines (U.P.) ; Master of Comparative Laws from
the Southern Methodist University in Dallas, Texas, as a full
scholar at the Academy of American Law; Master of Laws
from the University of California, Berkeley, as a scholar of the
2 THE PHILJA JUDICIAL JOURNAL [VOL. 4:14
III. TECHNIQUES IN DECISION-MAKING ........................................ 20

A. Fact-Finding Techniques
B. Factors to Consider
C. Weighing the Evidence
D. Gestures and Postures as Non-Verbal Clues
1. Head
2. Face
3. Chest
4. Posture
5. Leg Movements
E. Techniques in Interpreting the Law
IV. CONCLUSION ..................................................................................... 27
I. I NTRODUCTION
NTRODUCTION
The question may be asked: Why should judges get a lecture on

how to write Decisions and Orders? Let me read to you a letter
written to a judge by a group of lawyers.
Walter Perry Johnson Foundation; and Doctor of Juridical

Science Degree from the University of Illinois, Urbana-
Champaign, USA. In 1994 he was conferred the Doctor of
Humanities degree, honoris causa, by the Philippine Wesleyan
University. Other prestigious awards he received are: Ten
Outstanding Young Men Award (TOYM); Araw ng Maynila
Award as Outstanding Jurist; UPs Most Outstanding Law
Alumnus; Grand Cross of Rizal from the Order of Knights of
Rizal; Grand Lodge Gold Medal from the Grand Lodge of
Free and Accepted Masons of the Philippines; and Centennial
Awardee in the Field of Law by the United Methodist Church
on the occasion of its l00th anniversary.
2002] DECISION WRITING 3
Dear Judge:
We respectfully request you to hang the accompanying sign
in your chambers, where you will face it as you dictate
your opinions.
It will serve as a reminder that, if we are to continue to
practice law, we must buy and provide office space for the
many volumes of law reports in which your opinions are
printed. At the present time, these law reports are costing
us millions of dollars per year; and year after year your
opinions are getting longer and longer.
When dictating your opinions, please remember that in
effect you are sending us collect telegrams.
Since we must pay for every word, every line, and every
page, we would greatly appreciate your being as brief as
you would be if you were sending the telegrams prepaid.
You could save us much money if you would merely refer
us to the volume and page of your former messages, instead
of repeating paragraph after paragraph and page after page
of former messages for which we have already paid.
II. F ORM OF D ECISION

A. Constitutional FFramew
ramew ork
ramework
The form and content of a Decision is provided for in Art. VIII,
Sec. 14 of the Constitution, to wit:
SEC. 14. No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the
law on which it is based.
No petition for review or motion for reconsideration of a
decision of the court shall be refused due course or denied
without stating the legal basis therefor.
As explained by Justice Isagani A. Cruz:

Except for the second paragraph, which was introduced
only in the present charter, Section 14 has been in force
since the Constitution of 1935. The provision was recast
in affirmative terms in the 1973 Constitution, but has been
virtually restored to the original form in the Constitution
of 1987, to apply to all courts, including the municipal
courts. The purpose has always been the same, viz., to
inform the person reading the decision, and especially the
parties, of how it was reached by the court after
consideration of the pertinent facts and examination of
the applicable laws. (Francisco v. Permskul, G.R. No. 81006,
May 12, 1989)
Rule 36, Section 1 of the Rules of Court similarly
provides:
SECTION 1. Rendition of Judgments All judgments
determining the merits of cases shall be in writing personally
and directly prepared by the judge, stating the facts and
the law on which it is based, signed by him and filed with
the clerk of court.
B. F or m
Please note that the Constitution does not specify the form of
Decisions. It only requires that the facts and the law on which it
is based be clearly and distinctly stated.
This leaves a lot of room on your style. I cannot tell you
with certitude which style of writing to adopt. I suppose there is
not a style that can qualify as the style for all classes. Style is not
only a matter of taste, but it is also dictated by the topography
of each case, i.e., its complexion depends on the complexity of
the case in terms of issues of facts and law presented.
In any event, the traditional form of a Decision consists of

four (4) parts. The first part states the nature of the case if a
Decision or an Order is involved, and the issue to be presented.
The second part pertains to your findings of facts. The third
part pertains to the applicable law. And the fourth part pertains
to the dispositive ruling.
I . Findings of Facts
How do judges relate the facts of the case? Former Minister of
Justice Ricardo C. Puno identifies the following forms in vogue.
He wrote:
In regard to facts, we have two basic types of narration:
the reportorial type and the synthesis. A cross
between the reportorial type and the synthesis is the semi-
reportorial type. The reportorial type is the easiest to
handle. As the term indicates, it is nothing more than a
report of what happened during your trial. It usually
consists, in a summation, of what the witnesses testified to.
It is a stereotype kind of narration.
You begin in a criminal case, for instance, with the usual
opening: The accused stands charged with the crime of
bigamy allegedly committed as follows: Then you copy
the information. The prosecution presented witnesses A,
B, C, D and E. A, testified as follows: Then you just narrate
everything that he testified to. B, testified as follows:
Narrate everything that B said. After the parade of
prosecution witnesses, then you shift to the defense: On
the part of the accused, he presented three witnesses, namely,
X, Y and Z. X, testified as follows: After summarizing all
these testimonies, you make a brief summation of what
you consider as the correct version.
In the synthesis type of decision-writing, the judge

summarizes the factual theory of the plaintiff or
prosecution, as the case may be, and after that the version
of the defense. After summarizing both versions, the judge
will state which version he takes as true and correct, and
then renders the adjudication
In the semi-reportorial type, the judge summarizes the
version that he accepts, and then reports on the version
that he rejects. There is a fourth type which is a sub-
classification of the synthesized decision. In this last type,
the court just summarizes the version that it accepts and
adopts, without at all narrating or explaining what the
other version is. After the summation of that particular
accepted version, the judge renders his decision.
2. Statement of the Law

Next is the question of how you will discuss the applicable law in
your Decision. Again, there is no hard and fast rule. If the
applicable law is clear, its simple recitation will suffice. Its further
explanation will be, more often than not, a mere exercise in
redundancy. One legal writer said:
It seems that reverence for citation is the greatest handicap
of lawyers and judges. We delight in cumulative authority.
We think that one citation is not enough if we can cite
twenty, even though the proposition is obvious enough to
require no citation at all. It will suffice to cite one case if
it is controlling, along with a reference to a reliable text or
encyclopedia.
If the applicability of the law, however, is arguable, then you
have to justify your choice of law. Your discussion may take
quite a length. You may have to go through its history. You may
have to summon analogous rulings even of foreign courts. You
may have to invoke abstract concepts of justice and equity. In

any event, here is where you have to display your legal scholarship.
Always remember that substance should not be sacrificed for
style.
3. Dispositi
Dispositivv e P or
Por tion
ortion
Now, let us go to the writing of the dispositive portion of the
Decision. It is required that the dispositive ruling must be
complete. What is the test of completeness: First, the parties
know their rights and obligations. Second, the parties should
know how to execute the Decision under alternative contingencies.
Third, there should be no need for further proceedings. Fourth,
it terminates the case by according the proper relief. The proper
relief usually depends upon what the parties asked for. It may
be merely declaratory of rights, or it may command performance
of positive prestations, or orders the party to abstain from specific
acts. And lastly, it must adjudicate costs.
C. Decisions of the Supr eme Cour

Supreme Courtt
1. On Findings of Facts
In Grien v. Consolacion (5 SCRA 722 [1962]), the Supreme
Court stated the ultimate test as to the sufficiency of a trial courts
findings of facts. Let me quote the test:
The trial judge need only make a brief, definite and
pertinent findings and conclusions upon controverted
matters. The ultimate test as to the sufficiency of the trial
courts findings of facts is whether they are comprehensive
enough and pertinent to the issue raised to provide a basis
for decision. When the issue involved is simple, the trial
court is not required to make a finding upon all the evidence
adduced. It must state only such findings of facts as are

within the issue presented and necessary to justify the
conclusion.
When the Constitution speaks of acts, it means material facts
as opposed to immaterial facts. Consequently, it is not enough
for a judge to recite the testimonies of witnesses. He must
synthesize them.
Grammarians gives us numerous rules on how to be concise
in our writing. It is difficult to remember all the rules. In the
book Legal Writing, by Squires and Rombauer, the authors give
us only eleven (11) rules in making word choices. Let me share
them with you, and I quote the book:
a . Use Wor ds in T heir Literal Sense.
ords
Two common sources of imprecision in legal writing are
personification (the givens of human qualities to
abstractions or objects, for example, cold-blooded
decision) and metonymy (the substitution of an attributive
or a suggestive word for the word identifying a person or
thing, for example, stage hand for stage worker). In
some writings, this kind of imprecision may be acceptable;
in legal writing, it may introduce ambiguity:
1. Imprecise:
California has so held.
Precise:
The California Court of Appeals has so held.
2 . Omit Archaic Legalisms.

Archaic legalisms are words and phrases, such as
hereinafter, heretofore, aforesaid,
forthwith, herein, hereby, for purposes
hereof, notwithstanding anything to the contrary

herein, so made, by these presents, and said.
Not only are these words obstacles to the lay reader,
but they are also imprecise and thus troublesome
to the legal reader.
The more serious fault of archaic legalisms is that
they may create the appearance of precision, thus
obscuring ambiguities that might otherwise be
recognized. For example, a question that has been
frequently litigated is whether herein refers to
the paragraph in which it is used, to the section, or
to the whole document.
3 . Use the Same Wor ds to R

ords ef
Ref er to the
efer
Same T hing; Use Dif Difff er ent Wor
erent ds to
ords
Ref er to Dif
efer Difffer ent T hings.
erent
Never attempt to improve style by introducing
synonyms or other word variations that will create
confusion or ambiguity. In the following sentence,
the substitution of the word prevailing for the
word dominant creates initial confusion:
According to the dominant view, this article is
applied to periodic meetings as well as to special
meetings. The pr
preevailing view is that Article 237
of the Commercial Code provides the right for
minority shareholders to convene either type of
meeting.
Is the author going to discuss two views?
A corollary is to use different words when you
mean different things. If the same word is used to
mean different things, the reader will be at least
momentarily confused.
4. Use Simple, FFamiliar

amiliar Wor ds.
ords.
When you have a choice between a short, familiar
word, such as call, and a longer, more elaborate
word, such as communicate, choose the shorter,
simple one. Simple words are understood more
quickly; they require less reading and thinking time.
Simple Words Elaborate Counterparts
after subsequent to
before prior to
begin, carry out implement, effectuate
happen eventuate, transpire
inform apprise
make render
send transmit
think deem
think, see regard, envisage
5 . Use Concrete Rather than Abstract

Wor ds.
ords.
Concrete words such as split decision are easier
to understand than abstractions such as judicial
dichotomy. Legal writers are likely to use abstract,
overblown language in part because many of the
cases that law students read during their first year
reflect an older, overstuffed style that is all too
easy to imitate. Legal writers must resist the old
style.
Some common abstractions are simple words
that can often be eliminated without loss of
meaning, for example, type, kind, manner,

state, area, matter, factor, system, and
nature.
Style:
The central thrust of plaintiff s legal position is
dependent on matters having to do with three
decisions of the Supreme Court.
Revised:
Plaintiff s argument for summary judgment depends
on three Supreme Court decisions.
6 . Use Wor ds that ar

ords aree Consistent in Tone.
All words have connotation (overtones of meaning)
as well as denotation (explicit meaning). Since
connotation contributes to tone, the word choices
in a particular piece of legal writing should have
compatible connotations. Many briefs contain
glaring inconsistencies in tone, as in the following
excerpt from the fact statement:
A third-party park-sitter, unbeknownst to
Plaintiff, contacted said Plaintiff s head with a
wine bottle. Plaintiff now has two metal plates
and twelve screws holding things together.
7 . Av oid Equi
Equivv ocations.
As lawyers, we often hesitate to make direct or
dogmatic statements. To protect ourselves or to
reflect uncertainty, we use either equivocal or
qualifying words that undermine their meaning.
Typical words and phrases used in this way are: it
seems to indicate, if practicable, it would seem,
it may well be, and it might be said that. If

you are uncertain, state the reasons for your
uncertainty.
8 . Use Unqualified Nouns, Adjectives and

Verbs.
Many writers add modifiers to intensify or buttress
poorly chosen nouns, adjectives, and verbs. The
right word ordinarily needs no bolstering. The
following modifiers can be removed without
compromising clarity:
absolutely nearly
actually obviously
basically particularly
certain, certainly plainly
clearly practically
completely pretty much
deepest quite
extremely really
frankly so (as in so great)
generally sort of
given surely
greatly truly
in effect various
kind of very
more or less virtually
9 . Use Few Literary Devices.

A plain style is usually the best style. If you do
wish to use figurative language, do so where it will
not interfere with communication of substance.
Clichs come readily to mind during writing. Thus,
a standard part of your revision should be to
remove them or to renovate them. Examples of
clichs are height of absurdity, day of
reckoning, and cold light of reason. Again, they
ought to be removed.
10. A
Avv oid JJar
ar
argg on fr om Other Fields.
from
Words go in and out of fashion. Vague
psychoanalytic terms, such as interaction and
supportive, were frequently used for a time before
they gave way to computer jargon, such as
interface and input. Avoid word fads
altogether. Words in fashion are quickly degraded;
their specific meaning disappears, leaving only a
vague general meaning.
1 I . Watc
atchh Out ffor
or R edundanc
edundancyy in Le
Redundanc Legg al
Writing
riting..
As most lawyers know, redundant wording has a
long and respectable past. Our Anglo-Saxon
ancestors gave us word pairings, such as safe and
sound. After the Norman Invasion, French
synonyms were added to the Middle English word
pairs. Thus, many legal terms have come to us in
triplicate. Some word pairings are still commonly
used, such as acknowledge and confess, act and
deed, deem and consider, fit and proper,
goods and chattels, keep and maintain,
pardon and forgive, shun and avoid, aid and

abet, cease and desist, fraud and deceit, and
null and void. Before automatically adopting an
archaic word pairing, consider whether both words
are needed.
Unnecessary word pairing continues to be a habit
in Modern English. If you think about each word
you use, you will avoid redundancies such as the
following:
basic fundamentals telling revelation
basic starting point terrible tragedy
false misrepresentation true facts
final result unexpected surprise
if and when unless and until
sufficient enough save and except
A more pervasive form of redundancy is the throw-
away phrase such as:
a certain amount of that all intents and
purposes
due to the fact the nature of
in case of the case is
in regard to the necessity of
the fact of the matter with reference to
as a matter of fact
Watch out for these phrases and gradually train
yourself to omit them. As an editing technique,
ask the question, Do I need this word?
2. Consequences W her
heree Ther
heree ar
aree No Findings of FFacts
acts
The decision was assailed as unconstitutional. The Supreme Court
sustained the attack. It held through Justice Antonio Barredo:
We hold that whenever in connection with an appeal to
the Court of First Instance from a decision of an inferior
court order rendered in the exercise of the latters exclusive
original jurisdiction, pursuant to Section 45 of the Judiciary
Act, as amended by Republic Act 6031, the memorandum
of the appellant makes specific assignments of errors which
do not appear to be obviously inconsequential, unsubstantial
or patently erroneous, it is a reversible error for the Court
of First Instance to entirely ignore and not expressly pass
upon the errors assigned. It would not be enough for the
court to say, as in the instance case, that it finds no reason
to disturb the findings of the trial court, even if it asserts
that it has gone over the testimonial and documentary
evidence submitted by the parties. It is our considered
view that the better rule is that in case of such an appeal to
the Court of First Instance from an inferior court, the
former should state the facts and the law on which its
decision is based, as required by the Constitution, with due
regard to the assignment of errors, if any, made by the
appellant, if only to enable the higher appellate court to
act on any possible petition for review thereof without
having to go through the trouble of searching for the
reasons supporting the same in the decision of the inferior
court.
3. Read y-Made Decision Set Aside

eady-Made
The concern of the Supreme Court for judges to think well of
the reasons for their Decisions remains unbending. In People of
the Philippines v. Gonzaga (127 SCRA 158 [1984]), Chief Justice
Claudio Teehankee annulled what he called a ready-made
decision of a Court of First Instance (CFI). In this case, the

facts show:
The information was filed on November 3, 1977. On
November 8, 1977, accused was immediately arraigned and
pleaded guilty to the offense charged with the assistance
of a counsel de officio who had just been appointed then
and there. The case was set for trial the next day, November
9, 1977, notwithstanding counsel de officios request that
he be given two days to prepare for trial. The hearing was
continued the following day, November 10, 1977, and again
on November 16, 1977. On the hearing of November 16,
1977, after the prosecution has rested its case, the trial
court read the sentence of conviction, consisting of three
(3) paragraphs including the dispositive portion. The judge
sentenced the accused to death.
Ang nasawing si Amparo Quilatan ay isang pampamahalaang
guro ng Mababang Paaralan ng Taguig na pataksil na pinatay
ng nasasakdal na si Eduardo de Ocampo Gonzaga, na
ginamitan pa ng nakahihigit na lakas, sa dahilang siya ay
isang lalaki at ang nasawi ay isang mahinang babae. Ang
nasawi ay hindi man lamang nagkaroon ng pagkakataon
upang maipagtanggol ang kanyang sarili. Ang isang
katangiang ikinabigat ng pangyayaring ito ay ang balak na
pagpatay ng nasasakdal laban sa isang mahinang guro tulad
ni Amparo Quilatan. Ayon sa Artikulo Blg. 64 ng Binagong
Kodigo Penal na nagsasaad na ang mga mapagpipiliang mga
pangyayari ay ang mga nakabibigat o nakagagaang
pangyayari, ayon sa katayuan o kinalabasan ng krimen, tuald
ng kalasingan.
Isina-alang-alang ng Hukumang ito ang kusang-loob na pag-
amin ng nasasakdal alinsunod sa Artikulo 7, talata 13 ng
Binagong Kodigo Penal, subalit matapos niyang aminin ang
sakdal laban sa kanya, at bilang pagtupad sa simulain ng

Kataastaasang Hukuman ng Pilipinas, na kahit na umamin
na ang isang nasasakdal, kailangan din maghain ng mga
katibayan ukol sa sakdal o sa usapin, at iyan ang ipinag-utos
ng Hukuman sa Pampurok na Taga-Usig upang mapatunayan
ang mga kakabigat na katibayan laban sa kanya.
SA GAYONG KADAHILANAN, at dahil sa kusang-loob
na pag-amin sa pagkakasala ng nasasakdal na si Eduardo de
Ocampo Gonzaga, napatunayan ng Hukumang ito ng
walang pag-aalinlangan, na siya ay lumabag sa Artikulo 248
ng Binagong Kodigo Penal. At sa nasasaad sa impormasyon,
siya ay hinahatulan ng parusang KAMATAYAN at
babayaran din niya ang mga naulila ng nasawi ng halagang
P12,000.00; babayaran din niya ng halagang P10,000.00
bilang bayad pinsala; panibagong P10,000.00 bilang bayad
pinsalang di pamamarisan; at babayaran din niya ang lahat
ng nagugol ng pamahalaaan sa usaping ito.
The Supreme Court held:
The fact that immediately after the prosecution has rested
its case in the last hearing held on November 16, 1977, the
trial court read a ready-made decision of conviction shows
that the accused was meted the death penalty without due
process of law. With the perfunctory arraignment of the
accused and the undue haste with which the hearing was
held, the Court sees that accuseds fate was predetermined
from the start. Even before the termination of the hearing,
the sentence of death had already been prepared. At the
last page of the transcript of stenographic notes taken by
stenographer Luisa S. Golla, a note appears, which states:
NOTE: Sentence already attached to the original records
of the case.
4. Memorandum Decision
Section 40 of Batas Pambansa Blg. 129 reads:
Every decision or final resolution of a court in [an] appealed
decision, or final resolution of a court in appealed cases
shall clearly and distinctly state the findings of facts and
the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
adopted by reference from those set forth in the decision,
order or resolution appealed from.
In Francisco v. Permskul (G.R. No. 81006, May 12, 1989),
Justice Isagani A. Cruz discussed the nature of a memorandum
decision and the requisites for its validity. He said:
The distinctive features of the memorandum decision are,
first, it is rendered by an appellate court, and second, it
incorporates by reference the findings of facts or the ruling
under review. Most likely, the purpose is to affirm the
decision, although it is not impossible that the approval of
the findings of facts by the lower court may lead to a
different conclusion of law by the higher court.
The reason for allowing the incorporation by reference is
to avoid the cumbersome production of the decision of
the lower court, or portions thereof, in the decision of the
higher court. The idea is to avoid having to repeat in the
body of the latter decision the findings or conclusions of
the lower court since they are being approved or adopted
anyway.
What are the requirement for its validity? The Supreme Court
held:
The memorandum decision, to be valid, cannot incorporate
the findings of facts and the conclusions of law of the
lower court only by remote reference, which is to say that

the challenged decision is not easily and immediately
available to the person reading the memorandum decision.
For the incorporation by reference to be allowed, it must
provide for direct access to the facts and the law being
adopted, which must be contained in a statement attached
to the said decision. In other words, the memorandum
decision authorized under Section 40 of B.P. 129 should
actually embody the findings of facts and conclusions of
law of the lower court in an annex attached to and made
an indispensable part of the decision.
It is expected that this requirement will allay the suspicion
that no study was made of the decision of the lower court
and that its decision was merely affirmed without a proper
examination of the facts and the law on which it was based.
The proximity at least of the annexed statement should
suggest that such an examination has been undertaken. It
is, of course, also understood that the decision being
adopted should, to begin with, comply with Article VIII,
Section 14 [of the Constitution] as no amount of
incorporation or adoption will rectify its violation.
The Court finds it necessary to emphasize that the
memorandum decision should be sparingly used lest it
become an addictive excuse for judicial sloth. It is an
additional condition for its validity that this kind of
decision may be resorted to only in cases where the facts
are in the main accepted by both parties or easily
determinable by the judge and there are no doctrinal
complications involved that will require an extended
discussion of the laws involved. The memorandum decision
may be employed in simple litigations only, such as ordinary
collection cases, where the appeal is obviously groundless
and deserves no more than the time needed to dismiss it.
5. Relating to the Dispositi

Dispositivve Por
Por tion of the Decision
ortion
If there is anything that ought to be clear in a Decision, it must
be the dispositive portion for it is settled that the judgment of a
case is what is contained in the dispositive portion. Statements
made in the opinion are informal expressions of the view of
the court and cannot prevail against its final order or decision
(City of Manila v. Entote, 57 SCRA 498 [1974]). Hence, the
general rule is where there is a conflict between the dispositive
part and the opinion, the former must prevail over the latter on
the theory that the dispositive portion is the final order, while
the opinion is merely a statement ordering nothing. In exceptional
cases, as in Republic v. De Los Angeles (41 SCRA 422 [1971]),
the Supreme Court departed from this strict rule invoking justice
and equity.
The dispositive portion should provide the costs of suit.
Judicial costs are the statutory allowances to a party, to an action
for his expenses incurred in the action, and having reference only
to the parties and the amounts paid by them. Costs are allowed
to the prevailing party as a matter of course, unless otherwise
provided in the Rules of Court. Section 10 of Rule 142 regulates
the costs that may be recovered by a prevailing party in the RTCs.
Note that attorneys fees are not normally taxable as costs. (See
Sec. 6, Rule 142, Damasen v. Hon. Harold Hernando, 104 SCRA
111 [1981]).
III. T ECHNIQ UES

ECHNIQUES IN D ECISION -M AKING
A. Fact-Finding Tec hniques

echniques
In deciding cases, judges should not delude themselves in the
thought that they are tasked to discover the ultimate truth. That
is almost impossible and should not be a thorn in their throats.

Let us remember the standards: In civil cases, decide in favor of
the party who is able to establish his cause of action by mere
preponderance of evidence. In criminal cases, acquit the accused
unless his guilt is shown beyond reasonable doubt.
But even then, the judges task of finding the facts to
determine where preponderance of evidence lies or whether
guilt has been established beyond reasonable doubt is not an easy
matter.
J.P. McBaine spells out the problems of fact-finding, viz:
Courts too often fail to realize that certainty as to what
has happened cannot be ascertained from the testimony of
witnesses or other evidence of acts. The frailty of man is
such that certainty in the field of fact-finding is impossible.
An attempt to find out what has transpired involves
correctness of perception, reliability of memory, and ability
to describe what was seen or heard. There are also certain
generic human traits respecting testimony, which affects its
probative value, such as the age, sex, intelligence, character,
temperament, emotion, bias, experience, etc. of the witness.
Mans imperfections, which everybody knows exist, make
absolute perfection or certainty unattainable in the field
of fact-finding. (32 Cal. L. Rev. 242 Burden of Proof:
Degrees of Belief ).
B. Factors to Consider
There are factors to consider in determining the burden of proof.
In determining where the preponderance of evidence lies, the
court may consider:
1. All the facts and circumstances of the case;
2. The witnesses manner of testifying;
3. Their intelligence;
4. Their means and opportunity of knowing the facts to
which they are testifying;
5. The probability and improbability of their testimony;
6. Their interest or want of interest;
7. Their personal credibility so far as the same may
legitimately appear upon the trial; and
8. The number of witnesses, though the preponderance is
not necessarily with the greatest number.
These factors can also be used in determining the weight of
evidence in criminal cases (People v. Maisug, 27 SCRA 742
[1969]).

Scoping these facts and factors is difficult enough. But much
more difficult is the task of calibrating their proper weight. Our
rules on evidence do not assign specific truth value to the different
kinds of admissible evidence. Indeed, we do not have a table of
logarithm in law for our different kinds of evidence. Even so,
our courts have developed techniques through the ages, which
can be used by judges in the difficult task of weighing evidence.
Here are some of these techniques:
1. The uncontroverted facts must be separated. They come
from the pleadings, pre-trial proceedings, and evidence
during the trial in the forms of admission, uncontradicted
allegations, clear implications, etc. These uncontroverted
facts are helpful to measure the truth or falsity of other
evidence.
2. In interpreting the testimony of a witness, his whole

testimony must be considered, i.e, his direct cross
examination, redirect and recross. The truth in testimony
cannot be distilled in a chopped fashion.
3. Self-contradictions by a witness usually happen. In
assessing self-contradictions, the judge should determine
whether they are due to innocent mistakes or deliberate
falsehood. Innocent mistakes usually cover minor details.
If the self-contradictions are innocent, they should be
disregarded. If they are deliberate, they should be counted
against the witness.
4. Contradictions between witnesses also commonly occur.
Initially, the judge should try to reconcile them. If they
cannot be reconciled, the judge has to make a choice of
which testimony to adopt as true and reject as false. To
guide him in his choice, he has to consider the character
of the witness, his ability and willingness to speak the
truth, means of knowledge, motives, manner and
demeanor, and the consistency or inconsistency of his
statements, as well as their probability or improbability.
5. Contradictions between testimony on the witness stand
and prior affidavit are also common. If they are
irreconcilable, affidavits should normally prevail. Oral
testimony is often unreliable due to passage of time.
6. Testimony that is inherently improbable must be rejected.
To be credible, evidence must coincide with the common
experience of mankind.
7. Demeanor of witness is an important factor to be
considered in weighing his testimony. In his book, Trial
Complex, Justice Jesus M. Elbinias cited guidelines on
how to interpret the demeanor of a witness, as discussed

in the following section.
D. Gestur es and P
Gestures ostur
Postur es as Non-V
ostures erbal Clues
Non-Verbal
In addition to clothing and appearance, the witness gestures and
movements while testifying are also important factors in the courts
appreciation of his credibility.
1. Head
When a witness head is bowed or lowered, it reveals a submissive
attitude; and when it is erect, it signals a mastery confidence. From
either of these head postures, the court may likely derive an
impression of repentance or prevarication, or of innocence or
truthfulness of the witness.
2. Face
The upper face, which is the reflexive area, consists of the forehead
that indicates nervousness when perspiring. The eyebrows express
concern and worry when moving downward. The eyelids disclose
an alert mind when wide open, and reveal sarcastic attitude when
winking. The nostrils may quiver in anticipation, flare with
eagerness, or widen in fear and anger. Located in the non-reflexive
area, or the lower face, are the lips that convey softness and warmth
when full, and strength when thin.
3. Chest
When the chest area is covered by the witness arms folded across,
such posture signals the witness unwillingness to communicate,
while an uncovered chest indicates openness and readiness to
communicate.
4. Postur
osturee
The posture assumed by the witness while testifying can also affect
his credibility. If he leans forward towards the examining counsel,
this may indicate his willingness to tell what he believes is the
truth, or his eagerness to testify to matters that may be truthful
for the party to whom he is a witness. On the other hand, if he
leans backward, this may signal his hesitance in giving testimony
either because what he is declaring is a fabrication or because he
simply does not believe in the cause of the party.
5. Le
Legg Mo
Movvements
Constant movement of the legs is an indication of tension.
Crossed-legs reflect confidence and openness to communicate.
Foot scuffling, however, is indicative of insecurity and
nervousness.
As I said, we cannot exhaust the techniques used by the courts

to ferret out the facts in a case. In any event, I advise you to read
and re-read the law on evidence and see how the precepts have
been applied in actual cases.
E. Tec hniques in Inter

echniques pr
Interpr eting the La
preting Laww
Assuming you have already calibrated the facts, the next problem
is how to find the applicable law. In most cases, the law is clear
and there ought to be no problem in its application to the facts
of a given case. In some cases, however, there will be a need to
interpret the law. Again, this is where you separate the skilled
from the unskilled judges. The various techniques on how to
interpret a statute, even a constitution, are well discussed by books
on statutory construction. These techniques are universal in
character. They are used both by courts in common law and civil
law countries. Again, I counsel you to review these techniques

for they will come in handy when you get bogged down by
problems on interpreting laws.
It is almost impossible to relate how great judges rationalize
their decisions and orders. You can, however, get a glimpse of
how they use their skills by reading decisions, especially those
involving constitutional questions, where you have a split vote
and where almost evey member of the court writes a concurring
or dissenting opinion. I commend to your attention, for example,
the benchmark case of Fortunato Pamil v. Hon. Victorino Teleron
and Rev. Fr. Margarito Gonzaga (L-34854, November 20, 1978;
86 SCRA 413) where by a vote of seven (7) to five (5), the
Supreme Court held that a priest is ineligible to sit as a municipal
mayor. This case involved Father Gonzaga, a Catholic priest,
who, in 1971, ran for the position of municipal mayor of
Albuquerque, Bohol. He won and was duly proclaimed. His
rival, petitioner Pamil, filed a suit for quo warranto and
disqualification is based on Section 2175 of the 1917 Revised
Administrative Code, which provides:
In no case shall there be elected or appointed to a municipal
office ecclesiastics, soldiers in active service, persons receiving
salaries or compensation from provincial or national funds,
or contractors for public works of the municipality.
Father Gonzaga, however, contended that this provision has
been repealed by Section 23 of the Election Code of 1971, which
states:
SECTION 23. Candidate holding appointive office or
position Every person holding a public appointive office
or position including active members of the Armed Forces
of the Philippines and every officer or employee in
government-owned or controlled corporations, shall ipso
facto cease in his office or position on the date he files his

certificate of candidacy: Provided, that the filing of a
certificate of candidacy shall not affect whatever civil,
criminal or administrative liabilities which he may have
incurred.
Complicating the legal issue is the larger issue of whether the
election of Father Gonzaga will violate certain provisions of the
Constitution and the principle of separation of Church and State.
The court was split: seven (7) voted that the provision of
the Administrative Code has been repealed by the Election Code
of 1971 and even assuming there was no repeal, the election of
Father Gonzaga should be upheld, for we will be putting a
religious test in the exercise of civil and political rights. Five (5),
however, voted that there was no repeal and, moreover, to uphold
the election of Father Gonzaga would violate the principle of
separation of Church and State.
When you read their separate opinions, I want you to
appreciate their use of different techniques in legal reasoning.
Note how expertly they use tools of logic and philosophy, their
mastery of history, and their resort to foresight of the substantive
evil that Congress wants to avoid by the passage of the law they
were interpreting. All of us have been taught these basic skills,
but these skills have to be regularly honed by the constant
upgrading of our legal scholarship.
IV
IV.. C ONCL USION
ONCLUSION
By way of conclusion, I will raise the question that you may be

embarrassed to ask. And the question is: Is it really true that in
making a decision, judges are straightjacketed by the process of
beginning with a principle of law as his premise, applying this
premise to the facts, and finally arriving at a decision? Or by the

formula, R x F = Rules x Facts = Decision? Are they prohibited
from reaching a conclusion first, and then justifying the
conclusion? Are they not to be influenced by subjective factors?
Judge Hutcheson, one of the ablest federal judges in the USA,
says that oftentimes, judges arrive at a decision by using his hunch
as to what is fair, just and wise. Judges do not subvert law when
they give room to their hunches or feelings in the process of
decision-making, because judges are not mechanical slot machines.
According to Cardozo:
The doctrine of the hunch, if viewed as an attempt at
psychological analysis, embodies an important truth: it is a
vivid and arresting description of one of the stages in the
art of thought. The hunch is the divinities of the scientist
the apocalyptic insight that is at the back of experiment
the intuitive flash of inspiration is at the root of all science,
of all art, and even of conduct.
According to Lhwelym, good hunching power is a result of
good sense, imagination, and much knowledge.
T he FFour
our Cs of Ef
Efffecti
ectivve
Decision-W riting: An Intr
Decision-Writing: oduction
Introduction
for Newl y-A
Newly-A ppointed JJudg
y-Appointed udg
udgeses
Justice Artemio V. Panganiban
Supreme Court
I. COMPLETENESS ................................................................................ 31
A. Article VIII, Section 14, Constitution
B. Rule 36, Section I, Rules of Court
C. Rule 120, Section 2, Rules of Court
Case 1: Yao v. Court of Appeals
Case 2: People v. Bugarin
Case 3: Madrid v. Court of Appeals
D. Rule 16, Section 3, Rules of Court
(Motion to Dismiss)
Case 1: Pefianco v. Moral
E. Sanctions for Failure to Follow Legal Requirements
(Reversal of Decision and Possible Administrative
Liabilities)
Justice Artemio V. Panganiban was appointed to the Supreme

Court on October 10, 1995. He is Chairman of the Executive
Committee of the Supreme Court Centenary Celebrations and
the Committee on Public Information, and Vice Chairman of
the Committee on Publications as well as the Committee on
Computerization. In representation of the Supreme Court,
he was designated Alternate Delegate to the 7th Conference
of Asian Chief Justices in Seoul, Korea in September 1999.
F. Parts of a Trial Court Decision

1. Caption and Title
2. Introduction (optional)
3. Statement of the Case
a. Civil Cases
b. Criminal Cases
a. Objective or Reportorial Method
b. Synthesis Method
c. Subjective Method
d. Combination of the Objective and
Subjective Methods
5. Statement of the Issues
6. Courts Ruling
7. Dispositive Portion or Disposition
a. Criminal Cases
b. Civil Cases
A distinguished civic leader and business leader, he was the first

Asian to be elected International Chairman of the American
Society of Travel Agents or ASTA International, the largest
travel association in the world. An active Catholic Lay Leader,
he held the very rare distinction of being a Member of the
Pontifical Council for the Laity (PLC), appointed by Pope
John Paul II in 1995 for a five-year term. He has been cited as
one of the most prodigious members of the Supreme Court in
terms of number of decisions authored, legal references
published, and numerous articles written in both local and
international legal publications. He obtained his Bachelor of
Laws degree, Cum Laude, and received the Most Outstanding
Student Award, from Far Eastern University.
2002] THE FOUR Cs OF EFFECTIVE 31
DECISION-WRITING
II. CORRECTNESS ................................................................................... 45

A. Some Guidelines in Correct Legal Writing
1. Be Grammatical.
2. Be Clear and Precise.
3. Use Specific Words that are Well-Positioned.
III. CLARITY .............................................................................................. 49
A. Be Simple.
B. Be Consistent in Tone, Tense, Words, Images, and the
Logical and Grammatical Parallelism of Words or
Group of Words.
C. Remember for General Use
IV. CONCISENESS .................................................................................... 51
V. FINAL WORD .................................................................................... 52
I. C OMPLETENESS
The following are the legal requirements on the contents of a

decision:
A. Ar tic
Artic le VIII, Section 14, Constitution
ticle
without stating legal basis therefor.
B. Rule 36, Section 1, Rules of Cour

Rules Courtt
SEC. 1. Rendition of judgments and final orders. A
judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the

judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk
of court (1a).
C. Rule 120, Section 2, Rules of Cour

Rules Courtt
SEC. 2. Contents of the judgment. If the judgment is
of conviction, it shall state (1) the legal qualification of
the offense constituted by the acts committed by the accused
and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the accused
in the offense, whether as principal, accomplice, or accessory
after the fact; (3) the penalty imposed upon the accused;
and (4) the civil liability or damages caused by his wrongful
act or omission to be recovered from the accused by the
offended party, if there is any, unless the enforcement of
the civil liability by a separate civil action has been reserved
or waived.
In case the judgment is of acquittal, it shall state whether
the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment
shall determine if the act or omission from which the civil
liability might arise did not exist.
Case 1: Yao vv.. Cour

Courtt of Appeals
Appeals
In Yao v. Court of Appeals [G.R. No. 132428, October 24,
2000], Chief Justice Hilario G. Davide, Jr. discussed these legal
requirements in this wise:
In the normal and natural course of events, we should dismiss
the petition outright, if not for an important detail which
augurs well for Yao and would grant him a reprieve in his
legal battle. The decision of the RTC affirming the
DECISION-WRITING
conviction of Yao palpably transgressed Section 14, Article

VIII of the Constitution, which states:
SEC. 14. No decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is based.
xxx
Let us quote in full the RTC judgment:
This is an appeal from the decision of the
Metropolitan Trial Court, Branch 52, Kalookan
City, in Criminal Case No. C-155713, the
dispositive portion of which reads as follows:
xxx
But because the prosecution proved the guilt of
the other accused, George Yao, beyond reasonable
doubt as principal under the said Article 189 (1)
for Unfair Competition, he is convicted of the
same. In the absence of any aggravating or
mitigating circumstances alleged/proven, and
considering the provisions of the Indeterminate
Sentence Law, he is sentenced to a minimum of
four (4) months and twenty-one (21) days of
arresto mayor to a maximum of one (1) year and
five (5) months of prison correccional.
xxx
After going over the evidence on record, the Court
finds no cogent reason to disturb the findings of
the Metropolitan Trial Court.
WHEREFORE, this Court affirms in toto the
decision of the Metropolitan Trial Court dated
October 20, 1993.
SO ORDERED.
That is all there is to it.

We have sustained decisions of lower courts having
substantially or sufficiently complied with the constitutional
injunction, notwithstanding the laconic and terse manner
in which they were written and even if there [was left]
much to be desired in terms of [their] clarity, coherence
and comprehensibility, provided that they eventually set
out the facts and the law on which they were based, as
when they stated the legal qualifications of the offense
constituted by the facts proved, the modifying
circumstances, the participation of the accused, the penalty
imposed and the civil liability; or discussed the facts
comprising the elements of the offense that was charged in
the information, and accordingly rendered a verdict and
imposed the corresponding penalty; or quoted the facts
narrated in the prosecutions memorandum, but made their
own findings and assessment of evidence before finally
agreeing with the prosecutions evaluation of the case.
We have also sanctioned the use of memorandum decisions,
a specie of succinctly written decisions by appellate courts
in accordance with the provisions of Section 40, B.P. Blg.
129 on the grounds of expediency, practicality, convenience
and docket status of our courts. We have also declared
that memorandum decisions comply with the constitutional
mandate.
In Francisco v. Permskul (173 SCRA 324, May 12, 1989),
however, we laid down the conditions for the validity of
memorandum decisions, thus:
The memorandum decision, to be valid, cannot
incorporate the findings of fact and the conclusions
of law of the lower court only by remote reference,
which is to say that the challenged decision is not
easily and immediately available to the person
reading the memorandum decision. For the
DECISION-WRITING
incorporation by reference to be allowed, it must

provide for direct access to the facts and the law
being adopted, which must be contained in a
statement attached to the said decision. In other
words, the memorandum decision authorized under
Section 40 of B.P. Blg. 129 should actually embody
the findings of fact and conclusions of law of the
lower court in an annex attached to and made an
indispensable part of the decision.
It is expected that this requirement will allay the
suspicion that no study was made of the decision
of the lower court and that its decision was merely
affirmed without a proper examination of the facts
and the law on which it is based. The proximity at
least of the annexed statement should suggest that
such an examination has been undertaken. It is, of
course, also understood that the decision being
adopted should, to begin with, comply with
Article VIII, Section 14 of the Constitution as
no amount of incorporation or adoption will
rectify its violation.
The Court finds it necessary to emphasize that
memorandum decisions should be sparingly used
lest it become an addictive excuse for judicial sloth.
It is an additional condition for the validity that
this kind of decision may be resorted to only in
cases where the facts are in the main accepted by
both parties and easily determinable by the judge,
and there are no doctrinal complications involved
that will require an extended discussion of the laws
involved. The memorandum decision may be
employed in simple litigations only, such as ordinary
collections cases, where the appeal is obviously
groundless and deserves no more than the time
needed to dismiss it. xxx
Henceforth, all memorandum decisions shall

comply with the requirements herein set forth both
as to the form prescribed and the occasions when
they may be rendered. Any deviation will summon
the strict enforcement of Article VIII, Section 14
of the Constitution and strike down the flawed
judgment as a lawless disobedience.
Tested against these standards, we find that the RTC
decision at bar failed miserably to meet them and, therefore,
fell short of the constitutional injunction. The RTC
decision is brief indeed, but it is starkly hallow, otiosely
written, vacuous in its content and trite in its form. It
achieved nothing and attempted at nothing, not even at a
simple summation of facts which could easily be done. Its
inadequacy speaks for itself.
We cannot even consider or affirm said RTC decision as a
memorandum decision because it failed to comply with
the measures of validity laid down in Francisco v. Permskul.
It merely affirmed in toto the MeTC decision without
saying more. A decision or resolution, especially one
resolving an appeal, should directly meet the issues for
resolution; otherwise, the appeal would be pointless.
We, therefore, reiterate our admonition in Nicos Industrial
Corporation v. Court of Appeals (206 SCRA 127, 131,
February 11, 1992), in that while we conceded that brevity
in the writing of decisions is an admirable trait, it should
not and cannot be substituted for substance; and again in
Francisco v. Permskul, where we cautioned that expediency
alone, no matter how compelling, cannot excuse non-
compliance with the constitutional requirements.
This is not to discourage the lower courts to write
abbreviated and concise decisions, but never at the expense
of scholarly analysis, and more significantly, of justice and
DECISION-WRITING
fair play, lest the fears expressed by Justice Jose Y. Feria as

the ponente in Romero v. Court of Appeals (147 SCRA
183, January 8, 1987) come true, i.e., if an appellate court
failed to provide the appeal the attention it rightfully
deserved, said court deprived the appellant of due process
since he was not accorded a fair opportunity to be heard
and a responsible magistrate. This situation becomes more
ominous in criminal cases, as in this case, where not only
property rights are at stake, but also the liberty, if not the
life, of a human being.
Faithful adherence to the requirements of Section 14,
Article VIII of the Constitution is indisputably a
paramount component of due process and fair play. It is
likewise demanded by the due process clause of the
Constitution. The parties to a litigation should be informed
of how it was decided, with an explanation of the factual
and legal reasons that led to the conclusions of the court.
The court cannot simply say that judgment is rendered in
favor of X and against Y, and just leave it at that without
any justification whatsoever for its action. The losing party
is entitled to know why he lost, so that he may appeal to
the higher court if permitted, should he believe that the
decision should be reversed. A decision that does not clearly
and distinctly state the facts and the law on which it is
based leaves the parties in the dark as to how it was reached,
and is precisely prejudicial to the losing party, who is unable
to pinpoint the possible errors of the court for review by
a higher tribunal. More than that, the requirement is an
assurance to the parties that, in reaching judgment, the judge
did so through the processes of legal reasoning. It is, thus,
a safeguard against the impetuosity of the judge, preventing
him from deciding ipse dixit. Vouchsafed neither the sword
nor the purse by the Constitution, but nonetheless vested
with the sovereign prerogative of passing judgment on the
life, liberty or property of his fellowmen, the judge must

ultimately depend on the power of reason for sustained
public confidence in the justness of his decision.
Thus, the Court has struck down as void those decisions
of lower courts, and even of the Court of Appeals, whose
careless disregard of the constitutional behest exposed their
sometimes cavalier attitude not only to their magisterial
responsibilities, but likewise to their avowed fealty to the
Constitution.
Thus, we nullified or deemed to have failed to comply
with Section 14, Article VIII of the Constitution, a
decision, resolution or order which contained no analysis
of the evidence of the parties nor reference to any legal
basis in reaching its conclusions; contained nothing more
than a summary of the testimonies of the witnesses of both
parties; convicted the accused of libel, but failed to cite
any legal authority or principle to support conclusion that
the letter in question was libelous; consisted merely of one
(1) paragraph with mostly sweeping generalizations and
failed to support its conclusion of parricide; consisted of
five (5) pages, three (3) pages of which were quotations
from the labor arbiters decision, including the dispositive
portion and barely a page (two [2] short paragraphs of
two [2] sentences each) of its own discussion or reasonings;
was merely based on the findings of another court sans
transcript of stenographic notes; or failed to explain the
factual and legal bases for the award of moral damages.
(Citations omitted)
Case 2: People vv.. Bug

People arin
Bugarin
In People v. Bugarin (339 Phil 570, 579-580, June 13, 1997),
the Court explained:
The requirement that the decisions of courts must be in
writing and that they must set forth clearly and distinctly
DECISION-WRITING
the facts and the law on which they are based serves many
functions. It is intended, among other things, to inform
the parties of the reason or reasons for the decisions so
that if any of them appeals, he can point out to the
appellate court the finding of facts or the rulings on points
of law with which he disagrees. More than that, the
requirement is an assurance to the parties that, in reaching
judgment, the judge did so through the processes of legal
reasoning. It is, thus, a safeguard against the impetuosity of
the judge, preventing him from deciding by ipse dixit.
Vouchsafed neither the sword nor the purse by the
Constitution, but nonetheless vested with the sovereign
prerogative of passing judgment on the life, liberty or
property of his fellowmen, the judge must ultimately
depend on the power of reason for sustained public
confidence in the justness of his decision.
Case 3: Madrid vv.. Cour

Courtt of A ppeals
Appeals
In Madrid v. Court of Appeals (G.R. No. 130683, May 31,
2000), the Court elaborated:
First. The trial courts decision, for all its length twenty-
three (23) pages contains no analysis of the evidence of
the parties nor reference to any legal basis in reaching its
conclusion. It contains nothing more than a summary of
the testimonies of the witnesses of both parties. The only
discussion of the evidence is to be found in the following
paragraphs:
Their testimony convinced the Court. On the
other hand, accuseds evidence bears the indicia of
fabrication. Defense witnesses from their demeanor,
manner of testifying and evasive answers were far
from credible.
From the evidence on record, the Court believes

and so holds that the prosecution has satisfactorily
proved the accused [guilty] beyond reasonable
doubt. Prosecutions witnesses testified in a
straightforward manner.
Considering the circumstances immediately prior
to the commission of the crime, and the manner
the same was committed, the Court believes that
the aggravating circumstances of evidence,
premeditation and abuse of superior strength, as
well as availment of means to prevent the deceased
from defending himself, were sufficiently
established. The severality, location and severity
of the injuries inflicted, as well as their nature,
proved that there were more than one assailant.
Murder should have been the proper offense
charged. However, we can only convict the accused
of homicide.
The decision does not indicate what the trial court found
in the testimonies of the prosecutions witnesses to consider
the same straightforward when, as will presently be shown,
they are in fact contradictory and confused. Nor does the
decision contain any justification for the appreciation of
aggravating circumstances against the accused, much less some
basis for finding conspiracy among them.
In view of the weight given to its assessment of a witness
credibility on appeal, the trial court should exert effort to
ensure that its decisions present a comprehensive analysis or
account of the factual and legal findings which would
substantially address the issues raised by the parties.
DECISION-WRITING
D. Rule 16, Section 3, Rules of Cour

Rules Courtt
(Motion to Dismiss)
SEC. 3. Resolution of motion After the hearing, the
court may dismiss the action or claim, deny the motion, or
order the amendment of the pleading.
The court shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly
the reasons therefor.
Case 1: Pef
Pef ianco vv.. Moral
efianco
In Pefianco v. Moral (G.R. L-132248, January 19, 2000), the
Court held:
Clearly, the above rule [Rule 16, Sec. 3] proscribes the
common practice of perfunctorily denying motions to
dismiss for lack of merit. Such cavalier disposition often
creates difficulty and misunderstanding on the part of the
aggrieved party in taking recourse therefrom and likewise
on the higher court called upon to resolve the issue, usually
on certiorari.
E. Sanctions ffor
or FFailur
ailur
ailuree to FFollo
ollow Le
ollow Leggal Requir
Requir ements
equirements
(R
(Reeversal of Decision and P Possib
ossible
ossib Administrativve
le Administrati
Liabilities)
Judges cannot be disciplined for every erroneous order
or decision rendered in the absence of a clear showing of
ill motive, malice or bad faith. This, however, is not a
license for them to be negligent or abusive in performing
their adjudicatory prerogatives. The absence of bad faith
or malice will not totally exculpate them from charges
of incompetence and ignorance of the law when they
render decisions that are totally bereft of factual and

legal bases. (De Vera v. Dames, A.M. No. RTJ-99-1455,
July 13, 1999)
F . Par ts of a Trial Cour

arts Courtt Decision
1. Caption and Title

a. Caption
i. Name of the court
ii. Title of the action
iii. Docket number
b. Title
i. Names of all parties and their respective participation
2. Introduction (Optional)
3. Statement of the Case

a. Civil Cases
i. Collection
ii. Ejectment
iii. Quieting of title
iv. Foreclosure of mortgage, etc.
b. Criminal Cases
i. Specific charge
ii. Accusatory portion of the information
DECISION-WRITING
iii. Plea of the accused

iv. Sometimes the conduct of preliminary investigation
This Court is disturbed by the fact that the decision of
the trial court now subject of automatic review failed to
include a statement of facts or at least a summary of the
evidence presented by the prosecution to prove the guilt
of the accused beyond reasonable doubt. The information
upon which the accused was arraigned is [neither] cited
nor quoted in the trial courts decision, which failed to
state distinctly the acts [constituting the crime] allegedly
committed by the accused. The trial court simply stated
that the accused is guilty of rape of his own daughter and
that the evidence for the prosecution is not controverted
by the accused without mentioning the evidence the
prosecution presented in court. x x x The trial judge is
hereby admonished for her failure to comply with the Rules
regarding the form and contents of judgments. (People v.
Dumaguing, G.R. No. 135516, September 20, 2000)
Each case has its own flesh and blood and cannot be decided
simply on the basis of isolated clinical classroom principles.
(Philippines Today v. NLRC, G.R. No. 112962, January 30, 1997;
267 SCRA 202, 228.)
The methods of reporting facts are:
a. Objecti
Objectivve or R
Ree por torial Method
portorial
Usually done by summarizing, without comment, the
testimony of each witness, and the contents of each
exhibit.
b. Synthesis Method
According to his best light, the judge summarizes the factual
theory of the plaintiff or prosecution, and then that of the
defendant or defense.
c. Subjective Method
The judge simply narrates what he accepts as his own version,
without explaining what the parties versions are.
d. Combination of the Objective and

Subjective Methods
The judge reports the testimony of each witness as in the
first type and then makes his own version as he sees fit.
5. Statement of the Issues
6. Cour t
tss R
Court uling
Ruling
Application of law and jurisprudence to the facts, and
explanation for the conclusions reached. Each issue, as a rule, must
be taken up and disposed of.
7. Dispositi
Dispositivve Por
Por tion or Disposition
ortion
a. In criminal cases, the disposition should include:
i. Finding of innocence or guilt
ii. Specific crime
iii. Penalty (with special attention to the indeterminate
sentence law)
iv. Participation of the accused
DECISION-WRITING
v. Qualifying, aggravating and mitigating circumstances

vi. Civil liabilities costs
b. In civil cases, the disposition should include:

i. Whether complaint or petition is granted or denied
ii. Specific relief granted
iii. Costs
According to Justice Reynato S. Puno, a disposition must be
complete. He gives the following test of completeness:
First, the parties know their rights and obligations. Second,
the parties should know how to execute the decision under
alternative contingencies. Third, there should be no need
for further proceedings. Fourth, it terminates the case by
according the proper relief. The proper relief usually
depends upon what the parties asked for. It may be merely
declaratory of rights, or it may command performance of
positive prestations, or orders the party to abstain from
specific acts. And lastly, it must adjudicate costs.
II. C ORRECTNESS
This means that the decision must conform to the law and
settled jurisprudence. Scholarship and research are the
landmarks of a great decision. Citations of authorities,
especially those involving novel or difficult issues, are always
desirable.
Remember that your audience is not just the parties or their
lawyers, but also the appellate court which may review your
decisions and opinions.
A mastery of the various branches of law is essential.

Otherwise, judges who show patent or gross ignorance of the law
and settled jurisprudence would be subject to disciplinary action.
However, decisions must be correct not only in substance,
but also in form. They must be written in correct English or
Filipino.
A. Some Guidelines in Cor

Corrrect Le
Leggal Writing
1. Be Grammatical.
Learn and use correct grammar, spelling, tenses, numbers, gender.
What are the correct spellings of pre-trial, guesstimate, and
percent?
2. Be Clear and Precise.

Choose appropriate words that convey the correct nuance or shade
of meaning.
It is very embarrassing when a judge [or hearing officer] is
asked by the parties to explain what he meant in his opinion
or what he ordered in the dispositive part of his decision.
(Justice Isagani A. Cruz and Justice Camilo D. Quiason,
Correct Choice of Words, 1998 ed., p. iv.)
Words are like chameleons which reflect the color of their
environment. (Judge Learned Hand)
Examples:
a. One after the other, the four accused attacked the

victim alternately.
Use successively instead of alternately. Note the
difference.
DECISION-WRITING
b. Petitioner alleges that the applied land was located in

Barangay Mambogan.
Better:
Petitioner alleges that the land he applied for was located
in Barangay Mambogan.
c. The witness only testified on one matter.

Better:
The witness testified on only one matter.
d. WHEREFORE, finding no merit in the instant

complaint, the same is hereby DISMISSED.
Who found no merit? The participial phrase is dangling,
a very common error.
Correct:
WHEREFORE, finding no merit, the court hereby
DISMISSES the Petition.
Or:
WHEREFORE, the Petition is hereby DISMISSED
for lack of merit.
e. An accused is charged with a crime and convicted of

it.
Treachery makes him liable for murder.
3. Use Specif ic Wor

Specific ds that ar
ords aree Well-Positioned.
ell-Positioned.
Vague generalities tend to say nothing. In fact, they may even
confuse the reader.
a. Vague:
It is clear from the testimony of the private complainant
that appellant used force and intimidation.
Specific:
It is clear from the testimony of the private complainant
that after the appellant had forcibly embraced her, he
threatened to break her head if she shouted; thereafter,
he strangled her with one hand and pointed a knife at her
neck with the other.
b. The main clause at the end of a sentence tends to catch

the most attention. Reserve it for points to be emphasized.
Next to the end of the sentence, the beginning attracts
attention.
Awkward:
The rule that no statute, decree, ordinance, regulation
or policy shall be given retroactive effect, unless explicitly
stated so, is basic.
Better:
Basic is the rule that no statute, decree, ordinance,
regulation or policy shall be given retroactive effect, unless
explicitly stated so.
c. To create effect, vary sentence length and construction in

a paragraph. Use long sentences to describe complicated
matters, to give dramatic narration, or to convey tedium
or heaviness. On the other hand, use a short sentence to
stress an important point. Examples:
This is not an accurate statement of a legal principle. It
confuses venue with jurisdiction, but venue has nothing
DECISION-WRITING
to do with jurisdiction, except in criminal actions. This is

fundamental.
Petitioner is in error. The public respondent did not
adopt in toto the aforequoted portion of the arbiters
decision.
III. C LARITY
A decision should be easy to read and to understand.
A. Be Simple .
Excessive ornateness, unorthodoxy, multisyllabic words, and
obscure spelling and diction call attention to themselves, not to
the message. Glitter is noveau riche, but simplicity is elegance.
Simplicity does not mean lack of force or color. It means
condensing many words into a few meaningful ones that deliver
the desired message.
1. Avoid wordiness and vacillation. Minimize phrases like it is

said that, it would seem that, it might be said that.
Wordy:
In common or ordinary parlance, and its ordinary
signification, the term shall is a word of command, one which
has always or which must be given a compulsory meaning as
denoting obligation. It has a peremptory meaning, and it is
generally known as peremptory or mandatory.
Simple:
The word shall denotes an imperative and indicates the
mandatory character of a law.
2. Minimize the use of highfalutin language and foreign words

and phrases. However, used sparingly in a proper way and in
the proper context, they add dignity and majesty to a decision.
Used in excess, they expose not erudition, but exhibitionism
and amateurism. Thin, indeed, is the line between profundity
and pomposity.
B. Be Consistent in Tone, Tense, Wor ds, Imag

ords, es, and
Images,
the Logical and Grammatical P
Parallelism
arallelism of Worords
ds
or Gr oups of Wor
Groups ds.
ords.
1. While it is desirable to avoid monotony of words, do not

change a word for the sake of changing it. If one must repeat,
then repeat a word or phrase that has a unique legal
characterization, like laches, renvoi or treachery.
2. Strive for logical and grammatical parallelism.

Not parallel:
Respondent challenges the credibility of the witnesses who,
he says, are all bosom friends of the complainant, and that
their testimonies contradict one another.
Parallel:
Respondent challenges the credibility of the witnesses because
they are all the complainants bosom friends, and because their
testimonies contradict one another.
3. Avoid using mixed metaphors and clashing images.

Mixed metaphors:
The price was the carrot dangling in front of the horse.
DECISION-WRITING
Clashing images:
He admitted having killed the deceased, but he set up self-
defense.
NOTE: In general, abbreviations, capitalization, italicization,
and, to a large degree, punctuation are matters of style, not
of right and wrong.
C. Remember to Use in General:
1. Topics and titles for distinct ideas, headings and subheadings.

2. Numbers or letters for enumerations and succession of ideas.
3. Transition words and phrases.
4. Proper punctuation marks.
5. Bold types or italics to stress words and phrases.
IV
IV.. C ONCISENESS
Question: How long should a decision be?

Answer: It depends on the facts and the issues involved.
The decision of the trial court is exceedingly long, without
any effort to trim the fat and keep it lean. Judges are not
stenographers transcribing the testimony of the witnesses
word for word. Judges must know how to synthesize, to
summarize, to simplify. Their failure to do is one of the
main reasons for the delay in the administration of justice.
It also explains the despair of the public over the foot-
dragging of many courts and their inability to get to the
point and to get there fast. (People v. Amondina, 220
SCRA 6, 7, March 17, 1993)
V. F IN AL W ORD
INAL
For the sake of variety, cadence and emphasis, some of these

foregoing rules may be set aside once in a while. Note these famous
quotations:
To be or not to be that is the question.
Four score and seven years ago.
Only in the Philippines!
If one has a way with words a sense of rhythm one may
get away with the unconventional. Some call it artsy-craftsy, or
literary license, or even legal craftsmanship.
But keep in mind T.S. Eliots words: It is not wise to violate
the rules, until you know how to observe them.
Decision Writing
Court of Appeals
I. INTRODUCTION ............................................................................ 55
II. FORM AND CONTENTS OF
WRITTEN LEGAL DECISIONS .................................................. 55
III. WHY FACTUAL AND LEGAL FINDINGS
SHOULD BE STATED IN THE DECISION ................................ 57
IV. STYLE AND LENGTH OF DECISIONS ..................................... 58
A. Clear and Distinct
B. Length of a Decision
C. Short and Lucid Opinions
D. Synthesize, Summarize, Simplify to Get to the Point
and to Get There Fast
E. Separate the Material from the Immaterial
F. Decision Should Make for Pleasurable and
Instructive Reading
Justice Lucas P. Bersamin was appointed Associate Justice of the

Court of Appeals on March 12, 2003. He obtained his law
degree from the University of the East in 1973 and placed 9th
in the Bar Examinations given that year with a general weighted
average of 86.30%, and a 100% rating in Criminal Law.
Immediately thereafter, he engaged in the practice of law until
November 1986 when he was appointed Regional Trial Court
Judge in Quezon City. His court was designated by the Supreme
Court as one of the special criminal courts in the National
Capital Judicial Region to try and decide cases involving heinous
crimes. He was a recipient of the Foundation for Judicial
V. DECISION AND OPINION, DISTINGUISHED ......................... 60

VI. QUALITIES OF AN EFFECTIVE DECISION ............................. 61
A. Familiarize Thoroughly with Facts Before
Determining Law Applicable
B. Short, Concise, Explicit, and Intelligible
C. Avoid Discourteous, Self-Righteous, and Other
Unnecessary Comments
D. Ex Facto Oritur Jus The Law Arises from the Fact
E. Presentation of the Facts Should Be Orderly and
Understandable
VII. POWER OF WORDS IN COMMUNICATING
THE INTENDED MEANING FORCEFULLY .............................. 64
VIII. REFERENCES .................................................................................. 65
A. Referencing to the Records
B. Referencing to Authorities
C. Signs and Symbols
1. op. cit.
2. id. and ibid.
3. supra
4. infra
5. e.g.
6. i.e.
7. et seq.
8. Cf.
9. See
10. Contra
Excellence Awards 2000 for Best Decision in Civil Law and

Criminal Law. He was also chosen by the same Foundation as
one of the three Most Outstanding RTC Judges for the year
2002. He is a Professor at the University of the East College
of Law, and author of Appeal and Review in the Philippines.
I. I NTRODUCTION
NTRODUCTION
A decision or judgment is rendered and issued after hearing the

parties and the proceedings have been dul dulyy ter minated for
terminated
the purpose of resolving the issues of fact or law, or both fact
and law, submitted for consideration and resolution. This discourse
focuses on the form and contents of such decisions.
II. F ORM AND C ONTENTS OF

W RITTEN L EGAL D ECISIONS
Decisions and resolutions in judicial proceedings are required to

be in writing and, in general, must conform, both as to form and
content, to the applicable Constitutional or legal requirements.
Section 14, Article VIII, of the 1987 Constitution provides:
without stating the legal basis therefor.
Section I, Rule 36, 1997 Rules of Civil Procedure states:
SEC. 1. Rendition of judgments and final orders. A
judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk
of the court. (1a)
Sections 1-5, 2000 Rules of Criminal Procedure states:
SEC. 1. Judgment; definition and form. Judgment is the
adjudication by the court that the accused is guilty or not
guilty of the offense charged and the imposition on him

of the proper penalty and civil liability, if any. It must be
written in the official language, personally and directly
prepared by the judge and signed by him, and shall contain
clearly and distinctly a statement of the facts and the law
upon which it is based. (la)
SEC. 2. Contents of the judgment. If the judgment is of
conviction, it shall state (1) the legal qualification of the
offense constituted by the acts committed by the accused
and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the accused
in the offense, whether as principal, accomplice, or accessory
after the fact; (3) the penalty imposed upon the accused;
and (4) the civil liability or damages caused by his wrongful
act or omission to be recovered from the accused by the
offended party, if there is any, unless the enforcement of
the civil liability by a separate civil action has been reserved
or waived.
In case the judgment is of acquittal, it shall state whether
the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil
liability might arise did not exist. (2a)
SEC. 3. Judgment for two or more offenses. When two or
more offenses are charged in a single complaint or
information, but the accused fails to object to it before
trial, the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty for
each offense, setting out separately the findings of fact and
law in each offense. (3a)
SEC. 4. Judgment in case of variance between allegation
and proof. When there is variance between the offense
charged in the complaint or information and that proved,

and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted
of the offense proved which is included in the offense
charged, or of the offense charged which is included in
the offense proved. (4a)
SEC. 5. When an offense includes or is included in another.
An offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the
former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients
of the former constitute or form part of those constituting
the latter. (5a)
III. W HY F ACTU AL AND L EGAL F INDINGS

CTUAL
S HOULD B E S TATED IN THE D ECISION
The factual and legal grounds for the decision should be made
in the written decisions and resolutions to inform the parties on
the reasons and grounds for the decision.
Justice Isagani A. Cruz expounded in Nicos Industrial
Corporation v. Court of Appeals1:
It is a requirement of due process that the parties to
litigation be informed of how it was decided, with an
explanation of the factual and legal reasons that led to the
conclusions of the court. The court cannot simply say that
judgment is rendered in favor of X and against Y, and just
leave it at that without any justification whatsoever for its
action. The losing party is entitled to know why he lost, so
he may appeal to a higher court, if permitted, should he
1. 206 SCRA 127; J. Cruz.

believe that the decision should be reversed. A decision

that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark as to
how it was reached and is especially prejudicial to the losing
party, who is unable to pinpoint the possible errors of the
court for review by a higher tribunal.
IV
IV.. S TYLE AND L ENGTH OF D ECISIONS
A. Clear and Distinct

The Constitution requires the statement of the facts and the
laws involved to be clear and distinct.2
B. Length of a Decision
The length of a decision should depend on the nature of the
issues involved. The simple case ought not to be given a wordy
or lengthy treatment, while the most serious one unquestionably
deserves a treatment probably ten times more fully than the
former.
C. Shor
Shortt and Lucid Opinions
An unnecessary discussion of the rules of law in the opinion of
a decision or resolution is valueless and may tend to confuse,
rather than clarify, the issue being decided. The modern judge is
selected because of his knowledge of the law and his ability to
analyze facts and apply to them the known rules of law, and not
because of his forensic ability and genius in writing high sounding
and flamboyant phrases. It has rightly been suggested, therefore,
that judges and legal officers would serve better if they would
2. Del Mundo v. Court of Appeals, 240 SCRA 348, 355;

J. Vitug.
seek eminence through the route of writing shorter and more

lucid opinions.3
D. Synthesize, Summarize, Simplify to Get to the P

Point
oint
and to Get T her
heree FFast
ast
Judges are not stenographers transcribing the testimony of the
witnesses word for word. They must know how to synthesize, to
summarize, and to simplify. Their failure to do so is one of the
main reasons for the delay in the administration of justice and
also explains the despair of the public over the foot-dragging of
many courts and legal offices of the Government, their inability
to get to the point and to get there fast.4
E. Separate the Material from the Immaterial

A decision made unusually long by a word for word summary of
testimonies, without any effort to separate the material from the
immaterial, is to be condemned. In People v. Francisco, et al.,5
Justice Isagani A. Cruz called attention to this mistake, thus:
We find that the decision of the trial judge is unduly long,
consisting of no less than sixteen (16) legal-size single-spaced
pages. Fifteen of these are devoted to a virtually word-
for-word summary of the testimonies of all the witnesses,
without any effort to separate the chaff from the grain.
What is worse is that the findings of the judge are confined
3. Marshall F. McComb, Associate Justice of the District Court
of Appeals in California, A Mandate from the Bar: Shorter
and More Lucid Opinions, ABA Journal, Vol. 35, No. 5, May
1949.
4. People v. Amondina, G.R. No. 75295, March 17, 1993;
J. Cruz.
5. G.R. No. 106097, July 21, 1994; 234 SCRA 333, 341;
J. Cruz.
to two short paragraphs on the last page, and there is hardly

any effort to explain such opinion or to support it with
law or jurisprudence.
This is not the way to write a decision. As we said in an
earlier case,6 judges should learn to summarize, to synthesize,
to simplify. More important, judges should judge. In this
case, the trial judge barely complied with the constitutional
requirement that the factual and legal basis of the decision
should be clearly and distinctly expressed therein.7
F . Decision Should Make for Pleasurable and

Instr ucti
uctivve R
Instructi eading
Reading
Besides reaching a conclusion sustained by the applicable law and
jurisprudence, a decision should make for pleasurable and
instructive reading. According to Justice Cruz, one function of
decision-writing not generally appreciated is to educate the reader
on the intricacies, and even the mystique, of the law, a function
which the opinion must perform so that the law and its mandates
can be made less esoteric or less inaccessible to the members of
the Bar (and even to the public, in general).8
V. D ECISION AND O PINION , D ISTINGUISHED
Houston v. Williams9:
The terms opinion and decision are often confounded.
Yet there is a wide difference between them, and in ignorance
6. People v. Amondina, 220 SCRA 6.
7. Art. VIII, Sec. 14, 1987 Constitution.
8. Concurring opinion, Republic v. Sandiganbayan, 204 SCRA
212, 234.
9. 13 Cal. 24, 73 Am Dec 565.
of this, or by overlooking it, what has been a mere revision

of an opinion has sometimes been regarded as a mutilation
of the record. A decision of a court is its judgment. The
opinion contains the reason given for that judgment. The
former is entered of record immediately upon its rendition,
and can be changed only through a regular application to
the court upon a petition for a rehearing or modification.
The latter is the property of the judges, subject to their
revision, correction, and modification in any particular
deemed advisable, until which the approbation of the writer
it is transcribed in the records.
The opinion of the judge is an expression of the reasons by
which he reaches his conclusion. These may be sustained or
contradictory, clear or confused. The judgment or decree is the
fiat or sentence of the law, determining the matter in controversy,
in concise, technical terms, which must be interpreted in their
own proper sense.10
The decree, and not the opinion, is the instrument through
which the courts and quasi-judicial offices act.
VI. Q UALITIES OF AN E FFECTIVE D ECISION
A. F amiliarize T hor oughl

oughlyy with
horoughl FFacts
acts Bef or
Befor
oree
Deter mining La
Determining Law pplicab
Applicab
w A pplicable
le
The decision, upon a legal and factual dispute, must be
written only upon a thorough familiarization with every essential
fact in the case. The points of law involved must then be
determined and the law which is applicable to the facts of the
case ascertained.
10. State v. Ramsburg, 43 Md. 325.

B. Shor t, Concise, Explicit, and Intelligib

Short, le
Intelligible
The decision should be as short, concise, explicit, and intelligible
as possible. A short decision, of itself, is not clearer or more definite
than a long one, but a bad short decision will be much worse if
lengthened. In the decision, a short opinion mathematically tends
to eliminate unwanted dicta, the inclusion of which always results
in taking up space in the reports without contributing to the
discussion and resolution of the particular question necessary for
the disposition of the controversy.
In writing the opinion to support his decision, the writer
should opt for brevity, for the short opinion seem to be the
better vehicle for conveying jurisprudence to farther distances. It
is also more easily and generally read than the longer one. Although
it is much easier and takes much less time to write a long, rambling,
unintelligible opinion than to write a concise, explicit, and
intelligible decision, the former may often be ineffective in
expressing the reasons and the conclusions of the writer.
Clarity and conciseness should attend to the narration of the
facts. The enumeration of the facts admitted by both parties and
of those in controversy, together with the substance of the proof
relating thereto in sufficient detail to make it clearly intelligible,
with page references to the record, if possible, should be made.
C. Av oid Discour teous, Self-Righteous, and Other

Unnecessary Comments
The writer of a legal decision should bear in mind that his foremost
duty is to decide the questions raised before his office. He must
do so without resort to unnecessary comments which are
discourteous and self-righteous, and he should refrain from being
personal towards any party or counsel.
D. Ex FFacto
acto Oritur JJus
us - The La
Laww Arises fr om the FFact
from act
It is not inaccurate to speak of the supremacy of the facts in
giving rise to law. The phrase ex facto oritur jus the law arises
from the fact expresses a truism that cannot be ignored by the
decision-writer. The skilled and experienced lawyer is only too
well aware of the devastating force of a single fact. Thus, there is
a need to concentrate on the facts before concentrating on the
law, for although a lawyer may be able to demonstrate quite
convincingly that a given principle of law does not apply to
certain facts, or that a given principle of law should be modified
or limited, the facts are not as flexible, but are stubborn and
unchangeable.
E. Presentation of the Facts Should Be Orderly and

Understandable
The presentation of the facts, to be effective, must be orderly
and understandable. To achieve this, the facts must be presented
in a chronological manner, with candor and clarity, and with care
to avoid the omission of important or central details.
The chronological presentation of the facts necessitates placing
the facts in the order of the time of their occurrence regardless
of the order in which the facts were presented at the hearing
through the testimony of witnesses and presentation of evidence.
To make the presentation be more easily understood, it is
often desirable to start the presentation with the key facts, which
serves as an orientation, before proceeding to show how that fact
came about. The key facts are usually those that answer the what,
when, where, and to whom queries; the rest of the facts are those
that relate to the how query.
VII. P OWER OF W ORDS IN C OMMUNICA TING

OMMUNICATING
THE I NTENDED M EANING F ORCEFULL
ORCEFULLY
CEFULLY
The power of words to communicate or convey meaning

forcefully, or otherwise, ought not to be ignored. The choice of
words and the awareness of their denotation, as well as connotation,
can be crucial and decisive in preparing the decision. When
choosing from among competing synonyms, the judge must pick
the better or the best for his purposes. He must recognize, for
instance, that the boundary between vice and virtue is often ill-
defined that it becomes desirable to use words that swerve a little
from the actual truth like calling a rash man, brave; a prodigal
one, generous; a mean man, thrifty; or the timid one,
cautious. Words can aggravate, mitigate, modify, or intensify a
situation. The choice of words does put a different complexion
to any given case, and it requires some skill on the part of the
decision-writer to make the appropriate choice.
Therefore, caution in the use and choice of words is advised.
High-sounding words are not necessarily appropriate for effective
communication. Words can be seductive to the unwary, and there
the danger lurks. Hence, the use of simple words, or words and
terminology understandable to the ordinary laymen, is always
better, if not also safer.
According to one writer:11
Knowing the power of words as tools of his profession, in
every field of thought and deed, the effective lawyer studies
them and loves them. He sees how readily they lend
themselves in draftsmanship to precision, clarity, and
11. B.W. Palmer, The Right Use of Words: Skill in Phrasing

Essential for Lawyers, American Bar Association Journal, Vol.
34, No. 5 (May 1948), p. 368.
simplicity - in advocacy, to the subtleties of the mind:

'Penetrative words that touch the very quick of truth;
cunning words that have a spell in them for the memory
and the imagination; old words with their weird influence,
bright through the rubbish of some hundred years.' There
are mean words, snivelling words, short words that are like
the crack of a rifle on a winters day, long words in osity
and ation that sometimes suggest the imperial roll of
Milton's verse and the autumnal leaves of Vallombrosa but
sometimes, alas, pompous inanities and a paucity of thought.
For there is always a temptation to make fetishes of tall
words. And it is not only poets that have been well-nigh
ruined by too exclusive a Miltonic diet. It was the poet
Thomson, you may remember, who was referred to by
Lowell when he said: In him a leaf cannot fall without a
Latinism, and there is circumlocution in the crow of a cock.
And there is similar peril in Boswells idol. For, sometimes,
words are our masters and not our servants. Sometimes men
become 'intoxicated with the exuberance of their own
verbosity, to use Disraelis phrase of Gladstone.
VIII. R EFERENCES
A. Ref er
efer encing to the R
erencing ecor
Recor ds
ecords
In the case of references to testimonies of witnesses, page references
should be indicated by the letters tsn (acronym for transcript
of stenographic notes ), followed by the date of the testimony
and, where two or more witnesses testified on the same date or
occasion, the family name of the witness, and then by the page of
the transcript where the testimonial passage concerned is found.
References to documentary or other evidence should be by
citing the nomenclature which appears on the document or
exhibit of reference, e.g., Exhibit A, etc. adopted during the
proceedings. If there has been any remarking of evidence, such

fact may be adverted to in passing, if advertence is necessary for
clarity, but not otherwise. The goal is to have as few intercalations
as can be allowed, and which do not disturb the flow of the
narrative of the facts.
B. Ref er
efer encing to A
erencing uthorities
Authorities
Referencing to authorities may be made either by parenthetical
or bracketed references (called in-text citations), or by footnotes.
In-text citation is the recommended mode because footnotes
unduly interrupt the reading of the decision by requiring the
reader to move his eyes up and down the page.
Footnotes are recommended, however, for the following:
1. Excerpts of testimony of witnesses;
2. Incidental, collateral, or additional cases that are not of
sufficient importance, but to be cited as authority, and
which may prove to be valuable for further study of the
reviewing authorities; and
3. References to constitutional and statutory provisions
where the texts are necessary to be quoted verbatim.
The collection of Philippine jurisprudence is found in the
reports, both the official like the Philippine Reports, and the
unofficial or private ones like the SCRA and similar others.12
12. Sec. 1, Rule 55, Rules of Court, requires that the judgments
and final resolutions of the Supreme Court shall be published
in the Official Gazette and in the Reports officially authorized
by the Supreme Court in the language which they have been
originally written, together with the syllabi therefor prepared
by the reporter in consultation with the writers thereof.
The published law or case report is cited by its name and the
volume number and the page where the citation starts in the
report (e.g., Ferrer v. Hon. Bautista, et al., 231 SCRA 257), but
citing as well the particular page/s of the report, where the
Memoranda of all other judgments and final resolutions not so

published shall be made by the reporter and published in the
Official Gazette and the authorized reports.
According to Sec. 3, Rule 55, the published decisions and final
resolutions of the Supreme Court shall be called Philippine
Reports, (abbreviated as Phil.), while those of the Court
of Appeals shall be known as the Court of Appeals Reports,
with each volume containing a table of the cases reported and
the cases cited in the opinions, with a complete alphabetical
index of the subject matters of the volume, which shall consist
of not less than seven hundred pages printed upon good paper,
well bound, and numbered consecutively in the order of the
volumes published.
Volumes 1 to 74 of the Philippine Reports were printed and
published by the Lawyers Cooperative Publishing Company;
subsequent volumes were printed and published by the Bureau
of Printing (since reorganized as the National Printing Office).
Only decisions deemed of sufficient importance to require
publication shall be published in the Philippine Reports (Sec.
21, The Judiciary Act of 1948).
The Supreme Court Reports Annotated (SCRA), Supreme
Court Advanced Decisions (SCAD), and similar publications
are private and unofficial initiatives designed to make up for
the delayed publication of decisions and resolutions in the
Philippine Reports. The SCRA, of all the private publications,
has come to be accepted even by the Supreme Court as a standard
report, as demonstrated by frequent references in decisions and
resolutions.
applicable or relevant passage/s are found, is still highly advised

(e.g., Ferrer v. Hon. Bautista, et al., 231 SCRA 257, 262).
Commentaries, periodicals, articles, and treatises are referenced
by citing them as follows:
1. Single author: (Salonga, Philippine Law on Evidence,
3rd Ed. (1964), p. 39);
2. Several authors: (Noblejas, et al., Registration of Land
Titles and Deeds, 1992 Rev. Ed., p. 561);
3. Treatises: (Wigmore on Evidence, Rev. Ed., 1961,
2252);
4. Law Journal Articles/Periodicals: (Schoenfeld, The Stop
and Frisk Law is Unconstitutional, Syracuse Law Rev.,
Vol. 17, No. 4 (Summer, 1966), 627, 633).
The Constitution, statutes, and regulations are referenced by
citing them as follows:
1. Constitution: (Sec. 1, Art. III, Constitution ); or
(Sec. 4, Bill of Rights); or Sec. 12, Art. III, l987
Constitution).
2. Codes: (Art. 248, Revised Penal Code); or (Art. 8, Civil
Code); or (Sec. 3, Rule 39, Rules of Court ).
3. Statutes: Frequently, some statutes are better known
by their enacted names, e.g., (Sec. 17, The Negotiable
Instruments Law ) is the same as (Sec. 17, Act 2031).
There are various ways of referring to national
statutes or laws. For instance, Commonwealth Act No.
653, as Com. Act No. 653 or as CA 653; Presidential
Decree No. 21, as PD 21 or Pres. Dec. No. 21; and
Executive Order No. 33 as EO 33 or Exec. Order No.
33.
4. City Ordinance: (Quezon City, Zoning Ordinance of

1992 (Ordinance No. SP-22, S-1992).
C. Signs and Symbols

Some signs or symbols often used in legal writing are the
following:
1. op
op.. cit.
cit.
This is an abbreviation for the Latin phrase, opera citato, meaning
from the work cited, and it is used when the reference is to the
same work or treatise of an author already cited in the legal
writing. To illustrate, if the decision or resolution earlier cited is
Salonga, Philippine Law on Evidence, 3rd Ed. (1964), p. 39,
and there is a need to cite from the same work or treatise, but at
a different page, the writer may merely write Salonga, op. cit.,
p. 63, which indicates that the same work of Salonga, Philippine
Law on Evidence, at page 63, is cited as authority.
2. id.
id. and ibid.
ibid.
These are abbreviations for idem and ibidem, Latin words which
mean from the same place. Where, in a text or footnote reference,
there is a complete citation of a case or other authority, and
another reference is made to that case or authority on the same
page and without intervening citations either in footnotes or in
succeeding notes, ibid. is sufficient. But where the citation is to
a different page, cite id. at page __. For example, if the
immediately preceding citation in the decision or resolution is
Salonga, Philippine Law on Evidence, 3rd Ed. (1964), p. 39
and the next citation refers to the same book or treatise in a
different page, the writer writes id. at p. 63.
3. supra
This Latin term literally means over or above, and indicates
a reference to a citation of authority or a part of a discussion
made earlier in the decision or resolution.
4. infra
This Latin term literally means below, and indicates a reference
to a latter part in the decision or resolution.
5. e.g
e.g..
This is an abbreviation of the Latin phrase, exempli gratia,
which means for the sake of example, that is used for illustration
of a statement or to give an example of it.
6. i.e.
i.e.
This is an abbreviation of the Latin phrase, id est, which means
that is. It is used to illustrate or specify an example of the
antecedent or precedent statement.
7. et seq.
seq.
This is an abbreviation of the Latin phrase, et sequentiae, which
literally means and the following. It is used to refer to matters
following the cited portion of an authority, giving the specific
page, and is usually indicative of related discussions or subjects
(e.g., Salonga, Philippine Law on Evidence, 3rd Ed. (1964),
p. 39, et seq.).
8. Cf
Cf..
This symbol means either analogous or compared with. In legal
writing, it is used either to refer to a citation of a case that contains
a legal proposition analogous to the proposition for which it is
cited, or to indicate a dictum that is to be compared with or

distinguished from the proposition discussed. If used in the latter
sense, the specific page of the dictum is included.
9. See
In its italicized form, the word is used to cite a case for dictum
contained therein, or to indicate a reference to some theory or
contention found in a secondary authority, like a law book or
treatise (e.g., See Schoenfeld, The Stop and Frisk Law is
Unconstitutional, Syracuse Law Rev., Vol. 17, No. 4 (Summer,
1966), 627, 633). In its unitalicized form, the word directs the
reader to some discussion relevant to the subject for which it is
cited.
10. Contra
This Latin word denotes a holding of opinion squarely to the
contrary.
Writing and Writing Style
Court of Appeals
I. LEGALWRITING ................................................................................... 74
A. Four Chracteristics Common to Legal Writers
that Contibute to Difficult-to-Read Documents
1. Complicated Topic
2. Time-Constraint
3. No Writing Class
4. Familiarity
Justice Lucas P. Bersamin was appointed Associate Justice of the

Court of Appeals on March 12, 2003. He obtained his law
degree from the University of the East in 1973 and placed 9th
in the Bar Examinations given that year with a general weighted
average of 86.30%, and a 100% rating in Criminal Law.
Immediately thereafter, he engaged in the practice of law until
November 1986 when he was appointed Regional Trial Court
Judge in Quezon City. His court was designated by the Supreme
Court as one of the special criminal courts in the National
Capital Judicial Region to try and decide cases involving heinous
crimes. He was a recipient of the Foundation for Judicial
Excellence Awards 2000 for Best Decision in Civil Law and
Criminal Law. He was also chosen by the same Foundation as
one of the three Most Outstanding RTC Judges for the year
2002. He is a Professor at the University of the East
College of Law, and author of Appeal and Review in the
Philippines.
2002] WRITING AND WRITING STYLE 73
B. How to Make Your Legal Writing Alive Again

1. Envision your audience.
2. Concentrate on your readers priorities.
3. Make the reading clear.
4. Dont be ashamed to get help.
C. Qualities of Good Legal Writing
1. Accuracy
2. Clarity
3. Conciseness
D. Visual Improvement of Density
1. Margins
2. Spacing
3. Formal Tabulation
4. Tabulation
5. Enumeration
6. Informal Tabulation
7. Headings and Subheadings
E. Organizing Your Opinions and Reports
F. Content and Style of Your Opinions and Reports
II. REFERENCES ............................................................................................ 85
A. Types of References
1. The Reports
2. Treatises, Textbooks and Commentaries
3. Articles, Essays, Monograms and Lectures
4. Legal Encyclopedias and Digests
B. Use of References - Citations and Footnotes
C. How to Cite Authorities
1. Commentaries, Periodicals, Articles and Treatises
2. Constitution, Statutes and Regulations
3. Signs and Symbols
III. CONCLUSION .......................................................................................... 92
A. Care Needed in Legal Writing Preparation
B. Practice Can Make Perfect Legal Writing
I. L EGAL W RITING
Generally, Philippine lawyers write well, but we do encounter

specimens of writing which we may not easily accept to have
come from a lawyers pen. Much of the problems in Philippine
legal writing can be attributed to the shortness of time in preparing
our written work. My own experience tells me so, and the product
of such hurried work needed a lot of editing and rewriting. As a
judge, who literally spoke through the written word, I took extra
efforts and went to great lengths to improve my written work.
Let me share some practical and theoretical methods which have
served me in good stead as a judge.
We, lawyers, exist to communicate well. Our main product
which is doing legal work for others, whether we are in the courts
as judges or writers or researchers, or in the private sector as
practitioners or authors or lecturers is explaining issues well,
recording facts faithfully, and persuading others to accept our
conclusions and findings. All good lawyers are, or should be,
indeed, communication experts. Thus, attention to prose style is
just as important as attention to legal doctrine. That most lawyers
do their most important communication through the written
word is accepted without debate. We who serve the cause of justice
in our respective offices in the courts and quasi-judicial bodies
are no exceptions. It is during this day-to-day writing done by us
that we can sharpen our writing skills by focusing on the technique
and impact of our words.1
1. Paraphrasing Hon. Thomas R. Phillips, Chief Justice of the

Supreme Court of Texas, in his Foreword to Dr. Terri LeClercqs
Expert Legal Writing.
A. Four Characteristics Common to Le Leggal Writers that

Contrib ute to Dif
Contribute Diffficult-to-R
icult-to-Read
ead Documents
Let us first distinguish the reasons why your readers often find
difficulty reading or appreciating your legal writings. The following
are generally considered true for the legal profession.
1. Complicated Topic
What lawyers write is a concrete discussion of an abstract concept,
which is difficult writing.
2. Time-Constraint
Legal writers have too much to do and in too little time. That
time-crunch forces you to resort to submitting a first draft as a
final draft.
3. No Writing Class
Even expert attorneys admit to having had no writing class since
their early teens. A majority of us have been running on sheer
native intelligence that we should not wonder why some of us
have missed a subtle point or two in grammar and organization.
4. Familiarity
You write so much that you no longer see your legal writing
as a challenge. It is hard for you to take pride in any particular
document because you have so many others to complete. It is
more important to get them done than to get them right. When
one writes all day, as most lawyers do, one may get complacent
and then perhaps sloppy.2
2. Terri LeClercq, Expert Legal Writing, pp. 16-17.

B. How to Mak
How Makee Your Le
Leggal Writing Ali
Alivve Ag ain
Again
After engaging in legal writing over a period of time, whether
long or short, you sometimes realize that the challenge to write
well and effectively is missing. I confess that, as a judge, I do
encounter that point, but time and again, I do manage to get over
it.
1. Envision yyour
Envision our audience.
Your prose level should tend to appease the reader you envision.
In practice, our frequent readers would be the litigants and their
lawyers who may probably be too busy to want to spend too
much time on another boring legal writing.
2. Concentrate on yyour
our rreader
eader
eaderss priorities.
You have to approach your rough draft with your target reader in
mind. For instance, if you are preparing an order, resolution, or
decision for a court, be explicit and direct about what you want
him or her to know, to or for whom, and why. The public expects
to be informed quickly and well, and this can be made possible if
you introduce right in the first paragraph the parties, the issues,
and the intended resolutions. When such initial information is
not there, your readers, including your superiors (i.e., the justices
and judges you write for) can get irritated.
3. Make the reading clear.

See to it that your legal prose resembles the prose of other
educated people. Avoid characteristics of legal writing that separate
it from mainstream writing, or edit them out of your prose. Take
out long sentences.
4. Don
Dont be ashamed to gget
et help
help..
For this additional help, get someone else to edit your legal writing,
or study to overcome your deficiencies, like taking a short course
on writing in general; or get a contemporary reference book, like
a new dictionary and a current grammar text.3
C. Qualities of Good Le
Leggal Writing
Good legal writing should be characterized with accuracy, clarity,
and conciseness in the presentation of both factual and legal
situations. Thus, we focus on these qualities:
1. Accuracy
The first quality of good legal writing is accuracy. This quality
is primarily concerned with the way you make your statements
of facts if legal writing refers to court matters or other justiciable
cases, or to your statements of the situations if the legal writing
refers to non-judicial matters. Regardless of where the legal writing
is to be used, accuracy in the statements is a demand of the first
order.
Accuracy requires an attorney to set forth the facts and the
law with honesty, candor and specificity. Rest assured that regardless
of where your legal writing is to be used, your narrative will be
presumed to be fair and accurate until somebody else proves
otherwise. This presumption of accuracy is rooted in the legal
presumption of good faith pervading our legal system. There is
no sense in withholding unfavorable facts from your legal writing
unless your purpose is dubious or your intention is to suppress
them. And you will pay the price for any inaccuracy you commit
because at a later time, your duplicity or your inaccuracy, especially
3. Terri LeClerq, Expert Legal Writing, pp. 17-20.

if deliberate, will be discovered and you will be made to pay for

it, often very dearly. In your line of work, the price will be your
colleagues and superiors losing their trust in your abilities.
Candor and honesty will certainly inspire confidence. For
instance, you should see to it that all your assertions of facts
must be supported by the record because a diligent litigants
counsel or your superior or a reviewing justice or judge will in
time ferret out such material.
Inaccuracy in the statement of facts, whether arising from
mistake or from intentional misstatement, inevitably tends to
invalidate the conclusions drawn therefrom. Irrespective of the
ethical considerations which should prevent resort to any such
dishonesty, an intentional misstatement or distortion of the facts
is almost certain to be discovered and brought to the attention
of the court or board you work for, with the natural and just
result of creating a suspicion against the offending writer. Thus,
accuracy is rightly the first essential of effective legal writing.4
Accuracy should also characterize your statements of the law
involved or the relevant jurisprudence. The requirement along
this line is to cite the law without misrepresentation as to its
applicability or meaning, and to rely on jurisprudence which is
appropriate and relevant. We have heard of penalties visited on
the unscrupulous members of the Bar who have deliberately
misquoted the texts of the law, or intentionally misplaced the
punctuation marks in their quotations of jurisprudence, or
otherwise placed an obviously wrong slant or interpretation of
settled doctrines and principles.
4. Redfield, H., The Brief on Appeal; Brief Making and the Use
of Law Books, 3rd Ed., p. 369.
2. Clarity
The second essential quality of writing is clarity.
To secure clarity in any kind of legal writing, you have to be
orderly and logical in your presentation of the facts and the law.
You can do this only if you possess a keen apprehension of which
facts are material and of the reasons why the others are immaterial.
The power of selecting and grouping the controlling facts so as
to emphasize your theory of the case, or the specific need of
your office for whom you write, a lucidity of style, and a power
of condensation of facts and the law, are needed. Giving these
requirements is, however, much easier than satisfying them, for it
has often been truly spoken of that he who can do all these is a
man of rare ability.
Clarity always begins with straightforward thinking, for clarity
of understanding must precede clarity of expression.5 Once you
have the facts clearly in mind, the task of conveying that knowledge
to your reader begins. You will base any legal discussions you set
out to make on the facts that you have settled on. Only upon
clearly stated facts should your legal discussions and resolutions
rest.
There is no excuse for an attorney, even though not a man of
rare ability, who has obtained a thorough understanding of a
factual or legal problem, but yet presents a statement of the facts
and of the law that is verbose and discussive, by mingling
material and immaterial facts. Cardozo typifies such attorney as
a man who shows his lack of diligence rather than his lack of
ability.6
5. Re and Re, op. cit., p. 5.

6. Redfield, op. cit., p. 370.
3. Conciseness
The third essential ingredient of good legal writing is conciseness,7
which means putting only so much as needed into your legal
writing.
Of course, conciseness should never be secured at the
expense of clarity. Without sacrificing clarity, a carefully condensed
statement of facts and a brief and direct-to-the-point legal
discussion constitute the ideal for your legal writing. Thereby,
you save the time of your intended readers, who may be your
presiding judge, justice, or commissioner, or even the parties and
their respective counsel. Conciseness is much more likely to make
a strong and lasting impression on your readers than a diffused
presentation. If the writing is done in a hotly disputed case, such
an ideal statement can prove to be convincing in regard to the
soundness of the theory and principles of law by which the case
is determined.
Legal writing should be taut, clean, and clear, without an
ounce of fat or an excess of word. 8 Yet, achieving conciseness is
a difficult and time-consuming task, which is possible only after
you have mastered the facts and the law. Good and concise legal
writing can only result from careful planning, condensation, and
attention to the essentials.
D. Visual Impr
Improovement of Density
Increase white space in dense legal documents. Practically all legal
writing is frequently dense, that is, difficult to read. The format
7. Bryan Garner, the lawyer-lexicographer who revised Blacks
Law Dictionary for its seventh edition, prefers to use the term
concision in his book, Elements of Legal Style.
8. Godbold, Twenty Pages and Twenty Minutes Effective
Advocacy on Appeal, 30 Sw. Law Journal, 801, 816 (1976).
the visual impression does not have to match its density.

You may add some balancing white space to create the appearance
of a less-dense document by manipulating the margins, paragraph
length, and line spacing. You can also incorporate the stylistic
devises of enumeration, tabulation, headings, and subheadings.
1. Margins
Margins should be generous. My personal standard in my word
processor is a left margin of two inches (2), but I frequently
reduce this margin to 1.8 inches if the number of my pages exceeds
ten (10); my right margin is generally 1 inch (1) while my top
margin is 1.3 inches and the bottom, 1 inch (1). Generous
margins give the readers eyes some rest.
2. Spacing
Double spacing contributes to more white space. Many legal
documents, opinions, and resolutions are single-spaced, but as
much as possible, double or 1 spacing should be adopted for
better visual effect.
3. For mal Tab

ormal ulation
abulation
A formal tabulation is a listing of grammatically parallel items
that follow either no punctuation or colon, thereby producing
white space. The items tabulated should belong to the same class
and be parallel in structure, with a common idea introduced before
the tabulation. If each tabulation item makes up an integral part
of the introductory sentence, no punctuation is needed before
the list. When tabulating, you should not forget to indent all of
and number each item; end each item, except the last, with a
common or semi-colon; use a comma or semi-colon and and or
or on the penultimate item; and conclude the last item with a
period unless the list does not conclude the sentence.
4. Tab ulation
abulation
Tabulation is helpful in making emphasis. For instance, if you
want to emphasize errors or issues, tabulating will definitely
highlight them. Also, tabulating can help summarize the
important materials or items in a long discussion or opinion.
5. Enumeration
Enumeration within sentences can be resorted to if a list is not
important enough to highlight items, by using semicolons and
commas to signal parallel items following the introductory
sentence. Enumeration within a sentence also requires less
space.
6. Inf or
Infor mal Tab
ormal ulation
abulation
Informal tabulation is a listing that follows asterisks, bullets, or
dashes, recommended only for informal documents (like inter-
office memos and confidential opinions or reports) because they
allow you, as writers, the freedom to jot down grammatically
unrelated material. The content of the documents dictates the
practicality of informal tabulation.
7. Headings and Subheadings

The use of headings and subheadings enhance readability because
they readily accent the major points and counterpoints of any
argument or discussion, particularly the extended ones. Their
placements, their capital letters, their underlining or bold
accentuations, and the white space around them yell for the readers
attention, literally speaking. If headings can help briefs and
memoranda of litigants, they do the same thing for your writing
of opinions and reports.
E. Or
Orgganizing Your Opinions and R
Ree por ts
ports
In legal writing, your main task is to be persuasive and
authoritative. Otherwise, your purpose will not be served.
Organization of your positions on the facts and the law
should proceed logically and directly to the desired conclusion.
You should write an outline of the points, seeing to it that there
are not too many point headings, or that points are not merely
subdivisions of other headings, instead of being separate headings
in themselves. Your initial outline may contain five (5) or more
point headings, but upon re-examination and revision, it may be
reorganized into only two (2) or three (3) point headings. You
should bear in mind that a case is not necessarily strengthened by
using numerous grounds for resolving, for frivolous issues can
cast a shadow of doubt on meritorious ones.9
F. Content and Style of Your Opinions and R

Ree por ts
ports
General platitudes, clichs, and useless metaphors must be
avoided. Additional words used almost as interchangeable
synonyms do not tend weight to the assertion in the argument.
The overstatement of the discussion is as bad as the substitution
of general platitudes for specific supporting reasons; it could
indicate ignorance of the limitations and exceptions of
propositions being urged. The categorical statements of
propositions, when there are acknowledged exceptions, injures very
seriously the integrity of the opinion or report or resolution.10
9. Re & Re, op. cit., p. 125; Rahdert & Roth, Practice Before the
Fifth Circuit: Brief Writing and Oral Advocacy A Way To
Do It, 8 Texas Tech Law Review, 847, 857 (1977).
10. Id., p. 135.
An aspect of legal writing that ought not to be ignored is the

power of words to communicate or convey meaning forcefully or
otherwise. This is important in preparing the opinion or report
or resolution where, to be persuasive, the choice of words and the
awareness of their denotation as well as connotation can be crucial
and decisive. Frequently, you make a choice from among competing
synonyms, and you must pick the better or the best for your
purposes. It is recognized, for instance, that the boundary between
vice and virtue is often ill-defined that it becomes desirable to
use words that swerve a little from the actual truth like calling a
rash man brave, a prodigal man generous, a mean man thrifty, or
the timid man cautious. Words can aggravate, mitigate, modify,
or intensify a situation, depending from whose side they originate.
The choice of words does put a different complexion to any
given case, and it requires some skill on your part to make the
choice.
Caution in the use and choice of words is advised. High
sounding words are not necessarily appropriate for effective
communication. Words can be seductive to the unwary, and there
the danger lurks. A writer has observed:11
Knowing the power of words as tools of his profession, in
every field of thought and deed, the effective lawyer studies
them and loves them. He sees how readily they lend
themselves in draftsmanship to precision, clearness, and
simplicity in advocacy, to the subtleties and sinuosities of
the mind: Penetrative words that touch the very quick of
truth; cunning words that have a spell in them for the
memory and the imagination; old words with their weird
influence, bright through the rubbish of some hundred
11. B. W. Palmer, The Right Use of Words: Skill in Phrasing

Essential for Lawyers, American Bar Association Journal, Vol.
34, No. 5 (May 1948), p. 368.
years. There are mean words, snivelling words, short words

that are like the crack of a rifle on a winters day, long
words in osity and ation that sometimes suggest the
imperial roll of Miltons verse and the autumnal leaves of
Vallombrosa but sometimes, alas, pompous inanities and
paucities of thought. For there is always a temptation to
make fetishes of tall words. And it is not only poets that
have been well-nigh ruined by too exclusive a Miltonic
diet. It was the poet, Thomson, you may remember, who
was referred to by Lowell when he said: In him a leaf
cannot fall without a Latinism, and there is circumlocution
in the crow of a cock. And there is similar peril in Boswells
idol. For sometimes, words are our masters and not our
servants. Sometimes men become intoxicated with the
exuberance of their own verbosity, to use Disraelis phrase
of Gladstone.
Your high responsibility as a legal writer cannot be
understated in the preparation of your written resolutions,
opinions and reports. This is more true when the record contains
voluminous transcripts of testimonies and numerous exhibits,
which have to be analyzed, synthesized, digested, and collated for
the demands of the cases before you. After all, the objective of
the kind of legal writing you do is to inform and persuade your
readers.
II. R EFERENCES
A. Types of Ref
Ref er
efer ences
erences
1. T he R
Ree por ts
ports
The standard reference works for legal writing in the Philippines
are the decisions of the Supreme Court, which are the authority
for what the law is at any given time. These decisions are required
to be published in the Official Gazette and in the Reports officially

authorized by the Supreme Court in the language in which they
have been originally written, together with the syllabi therefor
prepared by the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final resolutions not so
published shall be made by the reporter and published in the
Official Gazette and the authorized reports.12
The published decisions and final resolutions of the Supreme
Court are called Philippine Reports, (abbreviated as Phil.
Phil.),
with each volume containing a table of cases reported and cited
in the opinions, with a complete alphabetical index of the subject
matters of the volume, which shall consist of not less than seven
hundred (700) pages printed upon good paper, well bound and
numbered consecutively in the order of the volumes published.13
Volumes 1 to 74 of the Philippine Reports were printed and
published by the Lawyers Cooperative Publishing Company;
subsequent volumes were printed and published by the Bureau
of Printing (since reorganized as the National Printing Office).
Only the decisions deemed of sufficient importance to require
publication shall be published in the Philippine Reports.14
The Supreme Court Reports Annotated (SCRA), Supreme
Court Advanced Decisions (SCAD), and similar publications
are private unofficial initiatives designed to make up for the
delayed publication of decisions and resolutions in the Philippine
Reports. The SCRA, of all the private publications, has come to
be accepted by the Supreme Court as a standard report, as
demonstrated by frequent references in decisions and resolutions.
12. Sec. 1, Rule 55, Rules of Court.
13. Sec. 3, Rule 55, Rules of Court.
14. Sec. 21, Judiciary Act of 1948.
It will be sufficient if the published case report is cited by its

name and the volume number and page where the citation starts
in the report (e.g., Ferrer v. Hon. Bautista, et al., 231 SCRA
257), but citing as well as the particular page or pages of the
report where the applicable or relevant passage or passages are
found is still highly advised (e.g., Ferrer v. Hon. Bautista, et al.,
231 SCRA 257, 262).
2. Treatises, Textbooks and Commentaries

Treatises, textbooks and commentaries have traditionally been
used as authoritative reference works that are useful in legal
writings. They give you easy sources of support for legal
discussions and opinions on otherwise difficult issues or problems.
3. Ar tic
Artic les, Essa
ticles, ys, Monog
Essays, rams and Lectur
Monograms es
Lectures
Articles, essays, monograms and lectures published in law journals
and legal periodicals are often considered references to buttress
legal discussions and opinions. The authors should be the
recognized authorities in the field of law involved in the problem.
The publication itself must be considered reliable among lawyers
themselves.
4. Legal Encyclopedias and Digests

Often regarded lightly as sources of authorities worthy of citation
of legal writing, the legal encyclopedias and digests do have their
value as research tools, for they readily provide a quick review of
the state of the law and jurisprudence on the given topic,
depending on the edition. Most encyclopedias contain profuse
citations useful for a variety of purposes. Research efforts are
made that much simpler and better with the encyclopedias and
digests logical arrangements.
B. Use of Ref
Ref er
efer ences Citations and FFootnotes
erences ootnotes
The audience of your legal writing more often than not expect
you to put citations in your product. In fact, most lawyers consider
it a necessity to make citations.
Citations of authorities, if they have to be made, should be
placed so as to make them available, but out of the way of the
reading. You must subordinate the citations to the statements
they support, which are more important than the former. To
accomplish this, you must generally end the statements supported
and put the supporting citation.
Citations may either be through parenthetical or bracketed
mid-sentence references or by footnotes. Although both types
are disruptive of the reading process, I recommend the former
because the latter unduly interrupts the flow of the argument by
requiring the reader to move his eyes up and down the page.
Outlawing footnotes would oppress the responsible users, for
footnotes sometimes provide invaluable, as in a treatise that gives
holdings, jurisdiction by jurisdiction, on a particular point of
law. Such a treatise is intended as a reference work, and not as a
book to be read from cover to cover.
For legal writings to be filed in court, footnotes are
recommended for:
1. Excerpts of testimony of witnesses;
2. Incidental, collateral, or additional cases which are not of
sufficient importance, but to be cited as authority, and
which may prove to be valuable for the courts further
study; and
3. References to constitutional and statutory provisions
where the texts are necessary to be quoted verbatim.
C. How to Cite A
How uthorities
Authorities
1. Commentaries, Periodicals, Ar tic

Artic les, and Treatises
ticles,
i. Sing le author
Single author::
(Salonga, Philippine Law on Evidence, 3rd Ed. (1964),
p. 39).
ii. Several authors:
(Noblejas, et al., Registration of Land Titles and Deeds,
1992 Rev. Ed., p. 561).
iii. Treatises:
(Wigmore on Evidence, Rev. Ed., 1961, 2252).
iv. La
Laww JJour nal Ar
ournal
our tic
Artic les/P
ticles/P eriodicals:
les/Periodicals:
(Schoenfeld, The Stop And Frisk Law is Unconstitutional,
Syracuse Law Rev., Vol. 17, No. 4 (Summer, 1966), 627,
633).
2. Constitution, Statutes and R

Ree gulations
i. Constitution:
(Sec. 1, Art. III, Constitution); or (Sec. 4, Bill of Rights); or
(Sec. 12, Art. 111, 1987 Constitution).
ii. Codes:
(Art. 248, Revised Penal Code); or (Art. 8, Civil Code); or
(Sec. 3, Rule 39, Rules of Court).
iii. Statutes:
Frequently, some statutes are better known by their enacted
names, e.g., (Sec. 17, The Negotiable Instruments Law) is the
same as (Sec. 17, Act 2031); or (Sec. 4, The Dangerous Drugs

Act, as amended), as (Sec. 4, Rep. Act 6425, as amended).
Various ways of referring to national statutes or laws exist.
For instance, Republic Act No. 6425 may be cited either as
R.A. 6425 or as Rep. Act. 6425; Commonwealth Act No.
653, as Com. Act 653 or as C.A. 653; Presidential Decree
No.21, as P.D. 21 or Pres. Dec. No. 21; and Executive Order
No. 33 as E.O. 33 or as Exec. Order No. 33.
iv. City Ordinance:
(Quezon City Zoning Ordinance of 1992; Ordinance No.
SP-22, S-1992).
3. Signs and Symbols
i. op
op.. cit.
cit.
Abbreviation for opere citato, meaning, from the work
cited, when the reference is to the same work or treatise of an
author already cited. If you earlier cited (Salonga, Philippine
Law on Evidence, 3rd. Ed. (1964), p. 39), and you need to
cite him again from the same work or treatise, but in another
page, you may merely write (Salonga, op. cit., p. 63), which
indicates that the same work of Salonga, Philippine Law on
Evidence, at page 63, is cited as authority.
ii. id.
id. and ibid.
ibid.
Abbreviations for idem and ibidem, which mean from the
same place. Where in a text or footnote reference, there is a
complete case citation or other authority and upon the same
page and without intervening citations either in footnotes or
in succeeding notes, another reference is made to that case or
authority, "ibid." is sufficient; but where the citation is to a

different page, cite "id. at page __".
If the immediately preceding citation is (Salonga,
Philippine Law on Evidence, 3rd Ed. (1964), p. 39), and the
next citation refers to the same authority, but found in a
different page, you write "id. at p. 63. If the reference is to
the same page, "ibid." suffices.
iii. supra
The term, which literally means over or above, indicates
a reference to a citation of authority or a part of a discussion
made earlier in a presentation.
i v . infra
The term, which literally means below, indicates a reference
to a latter part of the discussion.
v . e.g
e.g..
This is an abbreviation of the Latin phrase exempli gratia,
which means for the sake of example. This signal is used
for illustration of a statement or to give an example.
v i . i.e.
i.e.
Abbreviation of the Latin phrase, id est., which means that
is. This signal is used to illustrate or specify an example of
the antecedent or precedent statement.
vii. et seq.
seq.
Abbreviation of the Latin phrase, et sequentiae, which
literally means and the following. This is used to refer to
matters following the cited portion of an authority, giving
the specific page, and is usually indicative of related discussions

or subjects (e.g., Salonga, Philippine Law on Evidence, 3rd
Ed. (1964), p. 39, et seq.).
viii. Cf
Cf..
This means either analogous or compared with. In legal
writing, it is used either to refer to a citation of a case that
contains a legal proposition analogous to the proposition for
which it is cited, or to indicate a dictum that is to be compared
with or distinguished from the proposition discussed. If used
in the latter sense, the specific page of the dictum is included.
ix. See
In its italicized form, this is used to cite a case for dictum
contained therein; or to indicate a reference to some theory
or contention found in a secondary authority, like a law book
or treatise (e.g., See Schoenfeld, The Stop and Frisk Law
is Unconstitutional, Syracuse Law Rev., Vol. 17, No. 4
(Summer, 1966), 627, 633). In its unitalicized form, it is
used to direct the reader to some discussion relevant to the
subject for which it is cited.
x. Contra
This denotes a holding of opinion squarely to the contrary.
III. C ONCLUSION
A. Car
Caree Needed in Le
Leggal Writing Pr
Pree paration
Care in legal writing can never be over-emphasized. Everyone
who gets to read what you write has a reasonable expectation that
you have prepared well your legal writing. Often, as the pages of
our law reports show, even the Supreme Court has excoriated the
negligence of lawyers who display lack of care in the preparation
of their legal writing, like briefs and memoranda.
Every legal writer develops in time his/her own peculiar
method and style. The novice writer should not consider it to be
beneath him/her to refer to the legal writings of seasoned and
experienced legal writers before him/her and learn from them. In
the writing that you do, pretending not to remember court rules
and procedures is never a wise habit. Since your goal is both to
inform and to persuade, you should strive for the ability to make
clear quick statements.
Good legal writing is seldom the product of a short or brief
moment of study and writing. It is rather the fruit of hard work
and evolution. Most of the fine and effective legal writers start
by dictating or writing all their thoughts for the first draft, which
turns out to be a document of large proportions. From there,
they delete, condense, summarize, refine, alter, cut and revise until
satisfied that the draft is ready for final printing. Nothing less
should be done, no matter how tedious the process.
The most difficult part of legal writing concerns substance

and style. Haphazard and careless preparation of legal writings,
be they opinions, reports, draft decisions or resolutions, or even
discussions and lectures, irritate and do not perform their main
function of informing and persuading. Avoid tendering points
through fractured syntax, which have absolutely no place in any
legal record, since they cannot persuade but, worse, only produce
much waste of valuable time. Such irritants symptomize defects
in the training processes of lawyers.
Courtesy and temperate language and style are as much a
necessity as substance. Scandalous matter should never find its
way into your writing. Subdue your feelings or prejudices and

avoid inserting criticisms upon the personal character, professional
ability, and conduct or motives of anyone, particularly the counsel
of the parties and the parties themselves. Criticism is not an
element of strength in legal writing.
B. Practice Can Mak

Makee Perf
Perf ect Le
erfect Leggal Writing
Dr. Terri LeClerq, a language expert who is not a lawyer, has
written a book on legal writing entitled, Expert Legal Writing.
There she gives good counsel to members of the law profession
who have a genuine desire to improve their legal writing:
Any practice in writing can help your legal writing.
Write a complaint to your mechanic and spend some time
editing it; read an essay from Time and substituting your
own topic, mimic the prose. Read a short short chapter
from a stylebook that examines one element of style and
then spend some time reviewing your documents, looking
only at that particular element of style. Any of these
activities involves you in the conscious evaluation of prose
rather than content, and any of these can help you develop
your own prose style.15
Rather than embarking on a global reformation to become
a better writer, it will be helpful if you pinpoint one short-
term goal and break down the steps it will take to reach
that goal. If your goal is to be more succinct, for instance,
try daily for one week to reduce each document by a half
page. Another week, substitute stronger verbs to replace
wordy noun clusters and adjectives. Then compare your
old documents with these conscious writings and determine
your progress.
15. At pp. 5-6.

x x x receive advice [and] feedback from a professional.

Perhaps another experienced attorney can read a few
samples of your writing and offer you some seasoned advice.
Perhaps a non-legal friend can read your document and let
you know if you communicated well to the lay audience.
Perhaps a writing professional can evaluate your prose and
suggest techniques for improvement. It is difficult to know
how to improve your prose until someone helps you
pinpoint the problem. After that, x x x youre on your
own to develop the twists and turns that will make you
successful.
Not all work on your writing has to be accomplished at
the moment of writing a major brief or crucial letter; indeed,
the real work and real progress will occur through daily,
deliberate, repeated experiments with technique. Revise
your standard letter format. Evaluate the style of your
pleadings. When you read during the day, you can make it
a point to consciously notice other writers sparkling prose
in magazines, newspapers, and even in other legal writings;
you can learn from it right then. Right then is a great time
to experiment with your own writing rather than waiting
until you can formally attend a writing seminar or when
you have extra time. Your daily writing tasks then become
mini-lessons to reinforce writing skills.16
No one can exercise for you. An instructor can help inspire
you and direct you, but you have to fight through every
self-improvement step yourself. The attorney who asks his
office partner to take notes at the writing seminar for
me obviously is not going to get as much out of the notes
as the participant did by listening to and following the
exercises from an expert. Similarly, just reading about writing
16. At p. 7.
does not automatically make you a more efficient writer.

You have to consistently apply what you have read. Even
writing more often, but without feedback, will only [mean]
more, but not better, written.17
17. At p. 13.
Writing of Decisions and Resolutions
Resolutions
Justice Hugo E. Gutierrez (ret.)
Supreme Court
I. INTRODUCTION ...................................................................................... 99
A. Writing of Good Decisions as a Form of
Effective Communication
B. Transmission of Ideas
II. TWO-FOLD NATURE OF OBJECTIVES ....................................... 99
A. No Trade-off Between Quantity and Quality
B. Excellence in Quantity
Justice Hugo E. Gutierrez (ret.) was an Associate Justice of the

Court of Appeals before his promotion to the Supreme Court
where he served as Senior Associate Justice until his retirement
on March 31, 1993. He was also Chairman of the Senate
Electoral Tribunal and Member of the Revision of the Rules
of Court Committee of the Supreme Court. Among the
positions he held in his forty (40) years of public service are:
Assistant Solicitor General; Associate Law Professor, University
of the Philippines (U.P.); Head of the Publications Division,
U.P. Law Center; Executive Director, Presidential Investigation
and Recovery Commission; Assistant Manager of Field Services,
Social Security System; and Supervising Attorney, United States
Veterans Administration. Writer, editor and author, he has
lectured extensively in seminars sponsored by government and
private institutions. In 1990, he was given the honor of Jurist
of the Decade by the U.P. Alumni Association. He obtained
his law degree from the University of the Philippines and his
Master of Laws degree from the University of Michigan.
C. Excellence in Quality
D. Need for Continuous Upgrading of Skills
III. REQUIREMENTS OF LAW AND THE RULES OF COURT .... 101
A. Philippine Constitution, Section 14,
first paragraph of Article VIII
B. Rules of Court, Rule 36, Section 1
IV. DECISION, JUDGMENT AND RESOLUTION ........................... 102
A. Decision
B. Judgment
C. Resolution
V. PARTS OF THE DECISION ............................................................ 103
A. Caption and Case Number
B. Nature of the Action
C. Facts of the Case
D. Issues Raised by the Parties
E. Resolution of the Issues
F. Dispositive Portion
G. Predictable Pattern
H. Template or Form
VI. STATEMENT OF THE FACTS OF THE CASE AND THE
APPLICATION OF LAW TO THOSE FACTS ............................... 104
A. Summarizing System
B. Reportorial Method
C. Summarizing Method
D. Composite Method
E. Apply the law and precedents to those facts.
F. Prepare a good dispositive portion.
G. The decision proper and the judgment should
put an end to the controversy.
H. Flexibility
I. Fairness and Objectivity
2002] WRITING OF DECISIONS AND RESOLUTIONS 99
VII. ADDITIONAL POINTS TO CONSIDER ........................................ 106

VIII. ATTENTION TO FORM AND STYLE .......................................... 108
A. Careful Preparation and Organization
B. Coherent and Logical Presentation
C. Need for Clarity
D. Need for Brevity
E. Need for Sincerity
F. Need for Correct English
IX. THE PERSONALITY OF THE JUDGE ..................................... 110
A. Appearance
B. Essential to Quality and Quantity
I. I NTRODUCTION
NTRODUCTION
A. Writing of Good Decisions as a FFor

or
ormm of Ef
Efffecti
ectivve
Communication
1. The communicator and his encoding;
2. The message and the medium there should be no
alteration, diminution, or expansion of what is sought to
be conveyed;
3. The recipient and his decoding.
B. Transmission of ideas from formulation in the mind

to placing them in written form is hampered by failure to
improve communication skills.
II. T WO -F OLD N ATURE OF O BJECTIVES
A. No trade-of
trade-offf betw een quantity and quality
between quality.. One
cannot be used to explain poor performance in the other.
B. Ex cellence in Quantity
Excellence
1. Problem in backlogs. Adopt a scientific or management-
oriented system in meeting production goals and eliminating
backlogs. Do not allow things to get out of hand. You should
have your own monitoring and reporting system. Some judges
leave this entirely to the clerk of court.
2. Problems of attitude, of lethargy and lack of ambition, of
just coasting along. One judges reply to me when I asked
why he was not on the list of top producers: That is not one
of my priorities.
C. Excellence in Quality
Excellence
1. Ordinary talent, through constant practice and desire for
improvement, becomes excellent. Average can be upgraded
to above average.
2. A product is only as good as its ingredients and how they are
put together.
3. There is also the problem of finding a regular time to write
decisions and not make it an ad hoc or a spur of the
moment proposition. Try between hearings, afternoons, upon
waking up, etc. There should be flexibility in this respect.
Also, try the method of jotting down something right away
to avoid the problem of recalling an important idea.
D. Need for Continuous Upgrading of Skills

Adopt a correct attitude. Recognize that we have been recognized
with appointments to the Judiciary, and so there is no reason to
relax, or worse, backslide.
1. There is no excuse for senseless errors or omissions which

will require extra work for the judge, counsel, and appellate
courts. Efforts should be increased and recognition of the
problem should be improved as one is promoted in the judicial
hierarchy.
2. Turn on the judicial mind. Get the facts straight. Look for
excellent precedents. Apply your techniques of analysis and
visualization. Apply creative imagination to the results of
efforts in communication.
3. Remember: We can look for substantive law in books, but
writing good decisions is something all judges have to develop.
The need for correct attitude is paramount.
III. R EQ UIREMENTS OF L AW
EQUIREMENTS AND
THE R ULES OF C OUR
OURT T
A. Philippine Constitution, Section 14, first paragraph

of Ar tic
Artic le VIII, pr
ticle proovides:
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and
the law on which it is based.
In SONCUYA v. National Investment Co. (69 Phil. 602 (1940))
and Bacolod Murcia Milling Co. v. Henares (107 Phil. 560
(1960)), also Mendoza v. CFI (51 SCRA 369, (June 27, 1973)),
Ariola v. Auditor General (58 SCRA 7 (July 18, 1974)), it was
already established that the requirement of a clear statement of
facts and law had reference to a decision rendered after previous
presentation of proof in an ordinary civil or criminal case. It did
not apply to orders resolving incidental matters.
B. Rules of Cour t, R
Court, Rule proovides:
ule 36, Section 1 pr
All judgments determining the merits of cases shall be in
writing personally and directly prepared by the Judge,
stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the Clerk
of the Court.
IV
IV.. D ECISION , J UDGMENT AND R ESOL UTION
ESOLUTION
A. Decision
The term decision is a popular, and not a technical, legal word.
It is a very comprehensive term, having no fixed legal meaning.
(CMS Stock Brokerage, Inc. v. Reyes, 46745-R, November 6,
1974)
As defined in Philippine American Life Insurance v. Social
Security System (20 SCRA 163 (1976)), it is the adjudication
or settlement of a controversy.
B. Judgment
As used in the Rules of Court and in the Constitution, the words
judgments and decisions have the same meaning, or at least,
no substantial difference between the two words is indicated. But,
sometimes, judgment is used to refer to the dispositive portion
of the decision.
C. Resolution
A court resolution does not decide a case on its merits. It does
not consider and dispose of the issues involved, and does not
determine the respective rights of parties concerned. It merely
adopts a rule of conduct the manner of disposing a question.
A decision goes into the roots of the controversy, makes a

searching examination of the facts and issues in the case, applies
the law and considers the evidence presented, and finally
determines the rights of the parties. ( People v. Gagui,
26338-R, January 24, 1962)
V. P ARTS
ARTS OF THE D ECISION
A. Caption and Case Number

The names of the parties, both petitioner/s, complainant/s, and
respondent/s, are stated in the caption of the decision. It is desirable
that the names of all parties be mentioned in the body of the
decision in order to avoid any misconception as to the reach of
the decision. This applies as well to an order or a resolution.
B. Nature of the Action

It is best to let the reader of the decision know from the start
what the case is all about.
C. Facts of the Case
D. Issues Raised bbyy the Par

Par ties
arties
E. Resolution of the Issues through application of the law

to the facts. Discussion of the merits of the case.
F . Dispositi
Dispositivve por tion
portion
G . Subject to flexibility when called for, the judge should use a

predictab
predictab le patter
edictable patternn in preparing his decisions.
H. Can a template or for

ormm be used in the writing of decisions?
1. Remember that we are custom tailors and not RTW.
Templates are suggested for routine forms, but then care
has to be exercised in their use. Typists sometimes copy
something even if it makes no sense or is wrong.
2. It is better to have a good checklist of what should appear
in your decisions, and then check it for anything that
should be added.
VI. S TATEMENT OF THE F ACTS OF THE C ASE AND

THE A PPLICA TION OF L AW T O THOSE F ACTS
PPLICATION
A. Summarizing System
Develop a system of summarizing and presenting the facts. It
should be truthful and objective, but it should not contradict
your conclusions and the dispositive portion. It should be prepared
in a manner as to convince.
1. Get the facts straight and be faithful to these facts.
2. Determine the persons involved and their respective roles.
3. Determine what they did or said.
4. Do not assume facts not in the records. Practice care in
judicial notice.
5. Avoid facts that cannot be inferred from facts in the
record.
B. Re por torial method

portorial
Ask a researcher or do it yourself. Briefly state what each witness
stated and what each exhibit is intended to show. This makes the
decision voluminous and it can be a boring part of the decision.
However, it is useful on appeal.
C. Summarizing method
The judge should prepare his own statement of facts. It is gleaned
from the testimony and other evidence, then written in an
organized form. It should be thorough while at the same time
concise. Requires effort and talent on the part of the judge.
D. Composite Method
Use the above two methods as dictated by the circumstances and
the needs of the decision.
E. Apply the law and precedents to those facts.

Answer the important arguments of the parties, discussing in
detail the side of the party who shall lose the case. When you
start writing the decision, you have already made up your mind
on who will win the case. You do not discover the winner while
writing it.
F . Pr
Pree par
paree a ggood
ood dispositi
dispositivve por tion.
portion.
It should be written after the judge has reviewed the decision
itself and the prayers of the parties in their previous pleadings.
Avoid an order that cannot be enforced. If the parties can locate
a reason to justify a motion for clarification, then this can be
unsettling to the judge.
G . The decision proper and the judgment should put

an end to the contr
controoversy .
The matter in issue should be disposed of in a manner that enables
the parties to determine, with reasonable certainty, the extent to
which their rights and obligations are resolved.
H. Flexibility
Even as you adopt your own style and use your pattern as much
as possible, there should be flexibility in their use. Writing of
good decisions is a work of art. You should also enjoy reading
your own decision and taking pride in it. A little editorializing
and use of quotable or newspaperable pontificating can be done
if you know how to do it.
I. Fair ness and Objecti

airness vity
Objectivity
There should always be fairness and objectivity without
losing track of the philosophy involved and what the correct
result shall be. Avoid partiality and most important, deliberate
error.
VII. A DDITION AL P OINTS

DDITIONAL TO C ONSIDER
A. Isolate the main issue or go for the jugular. Avoid being

unnecessarily engrossed in side or minor issues.
B. Identify the unavoidable side issues or subordinate, but

important, issues. Avoid trivia or minutiae. Do not abet pro
forma items by giving them importance.
C. You may have to explain briefly why some arguments or

issues are ignored or treated sub silencio.
D. Do not handle attacks and personal criticism in the decision,

e.g., 90% was given to the personal criticism and only 10%
to the issues.
E. Be aware of pitfalls in factual presentations and problems in

sifting through the mass of testimony and exhibits. There is
also the problem of answering or discussing the arguments

and submissions of the parties, especially when their counsels
can hardly be understood. Be aware of the problems of
suspicious litigants and lawyers who downgrade the court by
looking for items that can be criticized, or those who
downgrade fellow lawyers.
F. Always use the latest pronouncements, not a law or regulation

already repealed or amended, and not a decision already
reversed or modified. Accuracy in citing a statute or decision
is essential. Check the errors of your researcher or stenographer.
1. You may be certain of the principle of law involved, so
limit efforts to look for it in primary sources. Law includes
the Constitution, codes, statutes, decisions found in the
Reports, treaties, ordinances, administrative rules and
regulations, rules of procedure, and amendments or
modifications.
2. Know how to use basic codes, compilation of statutes,
compendiums, law dictionaries, and careful use of
textbooks, newspapers, and abstracts of decisions. You
cannot know all these, but you should know where and
how to look for them.
G. Have appreciation for and willingness to approximate

excellent decisions of the Supreme Court, Court of Appeals,
those of your own colleagues, and foreign decisions.
H. Some useful hints from experts in the handling of evidence:

1. Find the preponderant evidence or that which is beyond
reasonable doubt.
2. Give attention to the manner of testifying, intelligence,

means of knowing the facts whereof they testify,
probability or improbability of testimony, interest or want
of interest, personal credibility, and number of witnesses.
3. Separate the controverted from the uncontroverted. See
the overall picture, not piece by piece. Look into self-
contradictions, innocent mistakes, or deliberate falsehood.
4. Reconcile any contradiction if it is proper to do so. Deal
with inherently improbable testimony. Pass upon the
demeanor, gestures, postures, nervousness, and movements
of the hands or legs.
VIII. A TTENTION TO F ORM AND S TYLE
A. Careful Preparation and Organization

Before you start preparing your decision, examine first the records
of the case. Determine whether the records are complete and the
pleadings chronologically filed, i.e., complaint, answer, position
papers, affidavits, annexes, evidence and exhibits, transcripts of
stenographic notes, minutes of hearing, and memoranda of parties.
B. Coherent and Logical Presentation

Do not use the Agatha Christie style of mystery throughout the
decision where the outcome becomes known only at the very
end.
C. Need for Clarity

Decision is for others and not for yourself. If you have difficulty
understanding it, how can you expect others to do so?
D. Need for Brevity

1. The bikini principle: concise yet comprehensive.
2. Examples: People v. De Leon (128 SCRA 121 (1984))
and (People v. Banayo, 129 SCRA 725 (1984)).
3. Wade through voluminous transcripts and citations, and
include them in a concise decision.
4. Edit your own work. Know how to cut out your own
work, which you prepared with great effort and difficulty.
Do not hesitate to cross out what is not necessary.
E. Need for Sincerity

1. Decisions should appear bona-fide, authentic and serious.
Avoid affected and artificial form and style.
2. Correct use of citations. No altering or misquoting to
suit your convenience.
3. Need for accuracy, completeness, and relevance in
citations.
F . Need ffor
or Cor
Corrrect Eng lish
English
1. Explore the wealth of the language warmth, strength,
beauty, extremely wide range and variety.
2. Mortal sins of grammar and composition - tenses,
agreement of subject with predicate, overloaded and too
long sentences, misplaced clauses, dangling modifiers, split
infinitives, awkward clauses and sentences.
3. Avoid legalese and archaic or stilted language - heretofore,
hereunder, hereunto, above-described, etc.
4. Know the correct use of the Thesaurus, the dictionary

and law dictionary. Use these frequently and ensure
correct legal bibliography.
5. Some preferred ways of spelling and writing down of
words and use of punctuations. Examples: goodbye or
good-bye; hyphenated words like door-to-door; co-
workers; pre-existing; reglementary; Sept. 7 or 7th day
of September; Pl.00 but 75 centavos; 15 minutes; 10
years old; attorneys fees or attorneys fees.
IX. T HE P ERSON ALITY

ERSONALITY OF THE J UDGE
A. Appearance like clean fingernails or neck of his shirts.
B. Essential to Quality and Quantity

1. Uphold the integrity and independence of the Judiciary.
Order and proper decorum. Courtesy but with discipline.
Prompt disposal of courts business. Professional
competence in court management, not lackadaisical and
unsystematic. Development of personnel. Proper
representation of the Judiciary and higher courts in his
community, but avoiding administrative positions, except
civic duties like most outstanding teachers in Metrobank
search. Model of leadership and behavior.
2. Integrity, objectivity, punctuality and promptness in acting
on business matters.
3. The extra factor of creati
creati vity
vity..
eativity
T he Ar
Arcchitectur
hitecturee of Ar gument
Argument
I. INTRODUCTION ..................................................................................... 112

II. THE UNIVERSAL LOGIC OF THE LAW ...................................... 113
III. A UNIVERSAL OUTLINE FOR JUDGMENTS, BRIEFS,
MOTIONS, AND OTHER SUBMISSIONS .................................. 114
IV. A SEVEN-STEP RECIPE FOR ORGANIZATION ...................... 117
A. Identify and partition the issues.
B. Prepare an OPP/FLOPP analysis for each issue.
C. Arrange the analysis of issues like rooms in a
shotgun house.
D. Prepare an outline with generic and case-specific
headings.
E. Write a beginning.
F. Write an ending.
G. Review your draft with a checklist and a friend.
Delivered at the Lecture on Judicial Writing, on May 21, 2002,

at the PHILJA Conference Room, Manila. Copyright James C.
Raymond 2002.
Dr. James C. Raymond, PhD, has been teaching legal writing to

judges and lawyers from North America to Australasia for more
than twenty (20) years. He has conducted a series of lectures
and seminars upon the request of Supreme Courts, legal and
judicial organizations, and educational bodies. His books on
legal writing include Clear Understandings: A Guide to Legal
Writing, Moves Writers Make, English as a Discipline, Literacy
as a Human Problem, and Writing (Is An Unnatural Act).
I. I NTRODUCTION
NTRODUCTION
I once had the following exchange with a gracious judge who

allowed me to review his work in a tutorial session.
I had tr oub
troub
oublele ffiguring
iguring out w hat
hatss ggoing
what oing on in
this case until I ggot ot to pag
pagee 15,
15, I said. T his is
This
w her
heree yyou
ou gget
et ar ound to mentioning the issues.
around issues.
Yes, Pr
Yes, of
Prof essor
essor,, I can see that.
ofessor that.
And now that I kno
now w w
know hat the issues ar
what e, it seems
are,
to me that probably twelve of the first fifteen
pages could be omitted, since they have nothing
anyy of these issues.
to do with an issues.
Y
Yes, of
Prof
es, Pr essor
essor,, I ag
ofessor agrr ee.
ee.
J ust out of curiosity
Just curiosity,, w
whhy did yyou
ou w ait until pag
wait pagee
15 to enunciate the issues?
W ell, Pr
Well, of
Prof essor
essor,, to tell the tr
ofessor uth, I didn
truth, didnt kno
knoww
what the issues were myself until I got to page
15.
15.
It was an instructive admission. Writing is often a means of
discovering what we think. It is not unusual for judges and lawyers
to discover the case as they write it.
They make a mistake, however, when they require their readers
to wander through the same process of discovery to follow
them down blind alleys, wrong turns, false starts, and irrelevant
facts until the issues finally pop up like mushrooms after rain.
He has also written articles for the Pepperdine Law Review,

Alabama Law Review, and The Judicial Review: Journal of the
Judicial Commission of New South Wales, as well as the preface
to Decisions: A Practical Handbook for Judicial Writing.
2002] THE ARCHITECTURE OF ARGUMENT 113
II. T HE U NIVERSAL L OGIC OF THE L AW
Every legal argument can be distilled to the same simple structure,

a variation of the classic categorical syllogism:
acts (nar
T hese ffacts rate ffacts)
(narrate acts)
viewed in the context of this law contract
law/contract regulation
contract/regulation
regulation/
precedent section
precedent/section of the Constitution
Constitution/principal of
principal
equity (choose one)
lead to this conclusion (relief sought).
The logic never varies. At trial, the judges job is to discover
this pattern of thought in the morass of facts, distortions, outright
lies, genuine issues, and spurious arguments that the contending
parties allege. And the attorneys job is to assist the judge in
reducing the facts and evidence to this pattern.
In jurisprudence, only three arguments can occur one about
facts, the other two about the law:
1. The litigants may contest factual allegations.
2. Or they may claim that the other side has cited the wrong
law.
3. Or they may concede that the other side has cited the
right law, but misinterpreted it.
Every case boils down to some combination of these
three basic disputes; there are no others. Even when some
procedural issue is argued (venue, for example, or timeliness), the
argument will always be the same. One side will allege certain
facts in the context of a controlling law, or principle, or standard,
and the other side will either dispute the facts, or argue that the
wrong law has been cited, or that the right law has been
misinterpreted.
When several issues are involved, each must be resolved with

the same logic: certain facts, considered in the context of a
particular law, lead to an ineluctable conclusion.
The logic of jurisprudence is the same in trial courts and
courts of appeals. The only difference is that at trial, litigants are
likely to argue about both facts and law, whereas in courts of
appeals, arguments tend to focus on the law the appellant arguing
that the court below has applied the wrong law or misinterpreted
the right one. Appellate courts are not equipped to examine the
quality or quantity of the evidence itself. They cannot call in
witnesses, or examine exhibits, or indulge litigants in the lengthy,
unpredictable and often disorderly proceedings that are
characteristic of a trial. Courts of Appeals may hear arguments
about the admissibility or sufficiency of certain evidence, but
except in rare circumstances, they will not second-guess trial courts
on the inferences drawn from whatever evidence they deem
admissible.
Because the pattern of legal logic is always the same, the
structure of an effective pleading, at any level, is identical to the
structure of a judgment. These genres have different audiences,
but the same purpose: to persuade. There is one important
difference: a judgment has the advantage of authority. A judge
can issue an order, instead of merely asking for one.
III. A U NIVERSAL O UTLINE FOR J UDGMENTS ,

B RIEFS , M OTIONS , AND O THER S UBMISSIONS
If the logic of the law is so simple and repetitive, why do judges

and lawyers have so much trouble organizing what they write?
Because despite the appearance of logic, litigation is always
messy and uncertain. It relies on facts inferred from observations
that cannot be replicated, reported by witnesses who may or may

not be telling the truth, or by experts who are generally
contradicted by opposing experts. Inferences made from events
described by witnesses are never as reliable as scientific inferences,
which are made from replicable observations. Even expert evidence
that claims to be scientific can be contested by other data or
other interpretations of the same data.
Nor do the issues arise from the facts, with a logical
inevitability. Good lawyers can find many issues in any set of
allegations, some more likely than others to benefit their clients
position. Unanticipated issues and surprising facts may arise during
the trial, and sometimes on appeal. Even when opposing lawyers
agree on the issues, they can frame them differently to gain an
advantage.
In addition, the logic of the law often melts like a pocket
watch in a surreal painting. Analogies, which are the basis of
common law (the claim that the case at bar is essentially like a
precedent), always limp. Precedents are always distinguishable.
Furthermore, the language of the law is rotten with ambiguity.
Despite the best efforts of legal drafters, a motivated reader can
find more than one meaning in any text. A word like murder
may seem plain enough until we have to decide how it applies
in cases of abortion or assisted suicide. A term like marriage
may seem plain enough until we have to decide when
cohabitation becomes marriage, or whether one member of a
same-sex union can claim spousal benefits on the others insurance
policy. Absolutely no word in the law is immune from the
ambiguity it might contract, like a contagious disease, in the context
of a novel set of facts. What seems like plain meaning when a
legal text is drafted disappears in a swirl of indeterminacy when
the text is applied to facts the drafters did not anticipate.
Despite these problems, the credibility of common law

depends upon the ability of lawyers and judges to control the
chaos by conveying their reasoning in a form that reflects the
universal logic of jurisprudence. Instead of controlling the chaos,
however, they often reproduce it, failing to provide their readers
with the issues that form a context in which individual facts have
meaning, rambling through facts and allegations without
distinguishing the credible from the implausible, switching from
one partys version to the others as if they were court reporters,
reproducing the testimony instead of analyzing it. Their
arguments meander, just as their own thoughts must have
meandered. They produce a stream of consciousness instead of
an orderly sequence, a diary of dawning awareness instead of an
engine of logic in which a result emerges from an application of
law to fact. They forget that the goal of jurisprudence is to
pluck the essential issues, the relevant facts, and controlling laws
from the maelstrom of arguments, allegations, precedents,
principles, and pretensions that rage about during a trial. It is
not an easy task, but it would be easier if advocates would remember
the simple logical structure that must underlie the resolution of
every issue in every case.
Many jurisdictions publish rules to assist lawyers in organizing
their submissions.These rules generally make excellent sense. First,
tell us what the issues are, they seem to say, reflecting an awareness
that facts have no significance until they are placed in the context
of an issue. Then tell us what the case is about reflecting the
frustration of judges who have to read dozens of pages before
discovering the basic fact situation from which the case arises.
And finally, Organize the rest of the judgment in a logical and
predictable order a plea from readers who are continually
surprised by what pops up next in an argument.
Paradoxically, judges and lawyers sometimes forget that, as

readers, they want precisely what their readers want from them.
Rules for pleading or for appellate procedure generally work just
as well on either side of the Bench, and at every level, all the way
up to the Supreme Court.
IV
IV.. A S EVEN -S TEP R ECIPE FOR O RGANIZATION
GANIZATION
Here is a recipe for organizing a pleading or a judgment in even

the most complex case:
A. Identify and par tition the issues .

partition
Plan the body of the pleading or the judgment before settling
on an introduction.
Use a stack of note cards, or half sheets of paper, or the
equivalent space on a computer screen. On each card write the
word ISSUE, followed by a brief statement of any question the
court must decide. If the issues change as the case proceeds, prepare
separate cards for the new ones and discard those that become
irrelevant.
Deter mining the issues ear
Determining earlly is essential to ef
effficienc
iciencyy
in the writing pr ocess and econom
process economyy in the rresult.
esult. You
cannot distinguish relevant facts and arguments from pointless
digressions until you have determined precisely what questions
the court is being asked to settle.
Partitioning the issues is essential to the structure of your
argument. Unless each issue is clearly separated from the others,
your argument will seem like a vast swamp, shapeless and devoid
of direction. Dividing your argument into discrete issues enables
you to focus your analysis on each one individually. It also enables
your reader to move from one issue to the next with a sense of
orderly progression.
B . Prepare an OPP /FLOPP analysis for each issue.

The easiest way to organize the analysis of each issue is to follow
this pattern:
OPP (Opposing P ar
Par ty
tyss P
arty osition)
Position)
FL OPP (Fla
FLOPP (Flaww in Opposing P ar
Par ty
tyss P
arty osition)
Position)
CONCLUSION
(If you are a judge, change OPP to LOPP, or Losing Partys
Position.)
OPP: R espondent contends that he had not been
Respondent
inf or med of the penalty cclause
infor lause in the contract.
FL OPP: T he eevidence
FLOPP: vidence sho ws that both the
shows
r espondent and his attor ney r ecei
eceivv ed the contract
attorney recei
thir ty (30) da
thirty ys bef
days or
oree signing it.
befor
CONCL USION:
CONCLUSION: heref
T her efor
ef ore,
or e, rrespondent
espondent
espondentss
contention that he was unaware of the penalty
clause has no merit.
The first sentence in this pattern would be followed by
supporting details, perhaps by quoting the respondents
contention verbatim; and the second sentence would be followed
by citing evidence, indicating that respondent had received the
contract beforehand and had plenty or enough time to examine
it.
When the conclusion is obvious, it may be effective to leave
it unstated and allow your readers to complete the syllogism on
their own. Judges, of course, have to make their conclusions
explicit in the form of findings or orders, usually at the end of
the ruling as a whole. Sometimes it is effective to refer to an

unstated conclusion as if it were so obvious that it can be
safely tucked away in a subordinate clause (e.g., Because
respondent had ample time to examine the contract before signing
it). Understatement of this sort can be more powerful than
rhetorical excess. It implies that any reasonable reader would agree
with you.
Be careful about using highly charged language to characterize
the opposing partys position. Charged language is a rhetorical
weapon that often backfires. It pleases readers who agree with you
in advance, but it alienates impartial readers and infuriates the
opposition and anyone who may be sympathetic to the
oppositions point of view. Charged language is often a sign that
an argument is based on passion rather than the law. Normally,
judges try to rise above emotion. They want you to give them
reasons, not feelings nor even ideals, that will survive scrutiny on
appeal. If you are a judge, you should be able to express the losing
partys position as effectively as you can as if you were
representing that party yourself and then identify the flaw in
that position with surgical detachment. If you cannot find the
flaw in your best statement of the losing partys position, you
may need to reconsider your conclusion.
The OPP/FLOPP pattern can be effective even when the
writer is the moving party and the opposing party has not yet
expressed a position. The OPP in this situation is whatever the
opposing party has done or said (or failed to do or say) that
motivates you to file this particular motion or application. The
FLOPP explains why the opponents words or actions are factually
inaccurate or incompatible with some law or legal principle.
One exception to the LOPP/FLOPP pattern occurs when
the controlling law is not so much a law as a principle of equity
or a matter of judicial discretion. In determining custody or

visitation rights, for example, Family Court judges can help calm
raging emotions by downplaying the notion of a losing party.
An adverse ruling in Family Court is never easy to accept, but
disappointed parents will find it easier to respect a decision that
focuses on the childs best interest rather than on a finding that
either party has been found a less competent parent. Even when
the decision is actually based on the unsuitability of one parent,
it does no harm to acknowledge whatever parental strengths the
judge can attribute to that parent, even if, for the record, it also
mentions the weaknesses that are critical to the decision.
Bankruptcy cases and contract disputes where assets have
to be divided equitably in the absence of clear language or
mathematical formulae are often best resolved by downplaying
the notion of a winner and a loser. In cases like these, judges
sometimes have little to rely on other than a subjective sense of
fair play. Whenever possible, the tone of the judgment can ease
the disappointment of the litigants, even though both parties are
likely to be dissatisfied with the result.
Another exception to the LOPP/FLOPP pattern occurs
when judges are finding facts. It generally makes sense to begin
with the position of the party with the burden of proof, whether
that party loses or wins.
Plaintiff argues that the value of the condominium
at the time of divorce was $150,000.
Respondent, ho
howwe v er
er,, pr esented eevidence
presented vidence that the
value was roughly half that amount.
After carefully weighing the evidence presented
by each side, I find thatbecause
Again, in an actual judgment, each of the first two sentences

would be followed by a summary of the evidence presented, and
the third sentence would be followed by an indication of why
the judge found one partys evidence more persuasive than the
others.
This is a tricky business. Many trial judges believe, with good
reason, that by expressing reasons for findings based on credibility
of experts or other witnesses, they invite the United States Court
of Appeals to second guess them and to reach different
conclusions. On the other hand, failure to give reasons can tempt
the Court of Appeals to remand on grounds that the findings
were not supported by sufficient evidence. Balance is the key.
Support your findings with sufficient reasons to show that they
are not arbitrary and capricious, but do not provide so much
detail that your readers will be tempted to draw inferences of
their own. You, after all, were present to observe nuances in the
testimony that will not be available to the Court of Appeals.
In general, though, litigants benefit from a judgment that is
as definitive as an umpires call at home plate or a line judges
verdict in a tennis match. Even if we know that they are
occasionally wrong, we do not want referees to have doubts. We
want them to be decisive so we can get on with the game or
with our lives.
Perhaps, more importantly, the OPP/FLOPP pattern helps
judges and lawyers think clearly about the application of fact to
law. It helps lawyers determine whether they have a case or not,
and whether they should advise their clients to settle rather than
enter into litigation they are likely to lose. It also keeps judges
honest, protecting them from their own biases. Nothing is more
frustrating to the Bar and to the public than a high profile decision
that is not supported by a clear and logical application of law to
facts. And nothing can be more damaging to public trust in the

integrity of the judiciary.
C. Ar rang
rangee the anal
Arrang ysis of issues lik
analysis likee rrooms
ooms in a shotgun
house.
The most frequent cause of obscurity in jurisprudence on both
sides of the Bench is not technical language or complex issues or
arcane subjects. It is haphazard organization compounded by facts
and allegations that have no bearing on any of the issues.
The easiest way to organize a judgment or a pleading is to
imitate the structure of what in some parts of the United States
is called a shotgun house a house in which each room follows
the other in a straight line: front porch, back porch, and a series
of perfectly parallel rooms between.
The front porch is the introduction, the back porch the
conclusion. Each room between contains the analysis of a
particular issue. This pattern can be effective whether there is one
issue or fifty.
Once you have determined the issues, arrange them in a
sequence that makes sense. If you have written each issue on a
separate card, you can spread the cards across a table and select the
sequence that works best.
Sometimes there would be threshold issues (e.g., standing),
and normally these are dealt with first. Sometimes issues can be
grouped in categories (e.g., three dealing with the admissibility
of evidence, two dealing with jury instructions, five dealing with
sentencing). Sometimes the issues can be arranged in a logical
chain, each issue dependent on the other for its viability.
Sometimes each issue is completely independent of the others. In
this situation, consider arranging the issues chronologically, if
the material allows it. Or consider arranging them for their

rhetorical effect, perhaps beginning with those for which you have
your best analysis, with the alternative arguments trailing behind.
The analysis of each issue should be self-contained, like a
stanza in a poem or a room in a shotgun house (stanza actually
means room). You should have as many rooms as you have
issues.
In some cases, another section needs to be added to the
structure: the rhetorical equivalent of a foyer, an antechamber
just after the introduction and just before the analysis of the first
issue. This section is necessary in cases that cannot be understood
without a detailed narration of facts.
When necessary, I NTRODUCTION

NTRODUCTION
add procedural Issue 1
history or
Opposing/ Losing Partys Position
detailed facts
Flaw in Opposing/Losing Partys
after the
Position
introduction.
(Conclusion)
Issue 2
Opposing/Losing Partys Position
Position
(Conclusion)
Issue n
Opposing/Losing Partys Position
Position
(Conclusion)
R ELIEF S OUGHT
( OR O RDER)
Although a foyer for extended facts, background, or

procedural history may be necessary at times, more often than
not, it can be avoided by writing a beginning that provides an
essential overview, and mentioning necessary details in the analysis
of the issue to which they are most relevant. Narrating the detailed
facts twice in the beginning and in the analysis of the issues
creates unnecessary work for your readers.
D. Prepare an outline with generic and case-specific

headings.
If a pleading or judgment is very short two or three pages it
may need no headings. In longer texts, headings are essential.
At the beginning of a document, i.e., in the table of contents,
headings provide a roadmap, foreshadowing the journey you want
your reader to take. Within the document, headings serve as
signposts marking the boundaries between various stages of the
journey. They show where each argument ends and another begins.
To serve these functions effectively, headings must be as brief as
possible. They should not be entire arguments (though it is often
effective to put a brief summary of an argument immediately
after a heading).
There are two kinds of headings: generic and case specif ic.
specific.
Words and phrases like Introduction, Background, Order,
Relief Sought, Cases Cited, Issues, and Findings of Facts
are generic headings. Generic headings can be transferred from
case to case, regardless of the facts and issues. They can be very
useful, and sometimes they are required.
In addition to generic headings, however, are case-specific
headings, like Was the Warrant Valid? or What is the meaning
of obscenity in Section 905? Case-specific headings are
extremely useful when they mark boundaries between analyses of

separate issues.
There are three ways to phrase a case-specific heading. You
can phrase it as an argument:
The University of Montevallo is not an Agency
of the State.
You can phrase it as a question:
Is the University of Montevallo an Agency of the
State?
Or you can phrase it as a topic:
State Ag enc
encyy.
Agenc
Some lawyers prefer argumentative headings, never wanting
to pass up an opportunity to press their point of view.
Others think topics or questions are more effective as headings
because they convey a sense of detached objectivity, which is in
itself a persuasive stratagem. It is a matter of personal preference,
based upon the authorial persona you want to create and on the
way you think a particular reader or set of readers is likely to
react.
Even though you should write every pleading and judgment
as if you expected your readers to follow it from beginning to
end, chances are they wont. Effective headings will aid those
readers who raid your text like marauding pirates, looking for
what interests them and ignoring the rest. The safest policy is to
let them know where they can find whatever they are looking for
those issues in which they are most interested in your argument.
No matter how you phrase them, however, they should be clearly
foreshadowed by the end of the introductory section.
E. Write a be ginning
ginning..
beginning
It may seem odd to suggest writing an introduction at this stage,
after you have already developed the heart of your argument.
But you are not in a position to write an introduction until you
know what you are going to introduce. Sometimes you have no
idea what the issues are, or how many, or how they should be
resolved, until you have drafted an OPP/FLOPP analysis for
each issue.
Avoid beginning with technical, dry, or uncontested assertions.
Imagine, for example, the reaction of a weary judge with a busy
schedule and other things to do when she or he reads an opening
paragraph like this:
1. Pursuant to this Cour t tss R ule 25.5, appellees
Rule
City of New York, et al., rrespectfull espectfull
espectfullyy submit this
Supplemental Brief responding to an argument
made by the Solicitor General for the first time
in his R Ree pl
plyy Brief on the merits. A ppellants ha
Appellants havv e
c laimed that appellees in invv ocation of jurisdiction
under 28 U U.S.S .C. 1331 in the district cour
.S.C. courtt ffailed
ailed
because that statute do es not cr
does eate a cause of
create
action, much less authorize adjudication of a suit
ag ainst the ggoov er nment absent an inde
against pendent
independent
w ai
aivv er of sosovv er eign immunity
ereign immunity.. R Ree pl
plyy Brief ffor or
the A ppellants (R
Appellants (Ree pl
plyy Br
Br..) at 3 n. 1. A ppellants
Appellants
f ailed to raise these ar guments belo
arguments below w, in their
Jurisdictional Statement to his Cour t, or in their
opening brief on the merits.
If you are a typical reader, you probably did not read this
example in its entirety. You skipped over it as soon as you glazed
over. Yet some lawyers are convinced that they are bound by
tradition, rules, or logic to begin their pleadings in this way. A
judge is likely to react to a beginning like this in very much

the same way you reacted to it when you read it or failed to
read it.
Similarly, judges should try to imagine the reaction of their
readers when they encounter opening lines like these:
Dec larator
laratoryy JJudgment
Declarator udgment (Ar tic le 453 C.P
ticle .C.)
C.P.C.)
T his Cour t, ha
Court, ving eexamined
having xamined the pr oceedings and
proceedings
the exhibits, considered the arguments of counsel,
and dul dulyy deliberated, doth no now ender the
w rrender
f ollo wing Dec
ollowing laratoryy JJudgment:
larator
Declarator udgment:
This self-congratulatory gambit serves no purpose. It is a sort
of judicial throat clearing. It enables the judge to put something
on paper before getting around to the case at hand. Why not just
get around to it? Skip the throat clearing.
A perfect introduction provides two things: a synopsis of
the ffacts
acts and a brief statement of the issues. Imagine how
you would begin if you were telling a neighbor about the case.
Start with the issue if it has far-reaching implications. Otherwise,
start with a thumbnail sketch of the facts, a brief story indicating
the human conflict, who did what to whom, followed
immediately by a concise statement of the questions (the issues)
that the court needs to decide.
This combination of facts and issues in a nutshell provides
the context in which your arguments will make sense and be worth
reading. In addition, by delineating the issues in a few lines, you
can foreshadow the structure of the argument to follow. Here is
an example:
Har
Harrr y Saunders w as con
was victed of assault, batter
convicted batteryy,
rape, and murder, each in the first degree.
Accor ding to the eevidence,
According vidence, Saunders w or
oree gglo
wor lo
lovv es
and a mask when he committed these crimes,

concealing his identity from his victim and from
witnesses on the scene.
In this appeal, Saunders argues that the lineup in
whic
hichh he w as identif
was ied w
identified as sug
was sugggesti
estivve, that ar tic
artic les
ticles
of clothing used in his identification were illegally
seized fr om his apar tment, and that he had no
from
access to counsel at key points during the
in
invv estig ation.
estigation.
This beginning is exceptional not only for what it does, but
perhaps more importantly for what it does not do. It does not
establish standing or jurisdiction with the ubiquitous phrase,
Pursuant to Rule 123 appellant asks . It has no legal jargon
or long, tangled sentences. In fact, there is nothing in this opening
that would seem odd or technical in a good newspaper. And that,
despite whatever misgivings you might have about the media, is
an excellent standard for legal writing.
The writer (a judge in Idaho) also avoided citing specific
sections of the code and specific references to precedent. He did
not feel obliged to tell us that assault, battery, rape, and murder
are illegal activities (e.g., contrary to sections w, x, y, and z of
the Criminal Code). Nor did he feel obliged, at this stage, to tell
us what statutes, precedents, or standards the appellant had
invoked in support of his claims. This may be essential
information at some point the precedents will have to be cited
and distinguished, the statutes and standards may have to be
quoted if there is any dispute about their meaning or the
application to this particular set of facts. But details of this sort
should be saved for the sections in which issues are analyzed. No
need to clutter the opening paragraph with more information
than the reader needs at this point.
This beginning provides the necessary context for

understanding the analysis that follows. You can even predict the
heading: Line-up Identification, Search and Seizure, Access
to Counsel. And in predicting the headings, you are predicting
the structure of the rest of the document. You are, in effect,
promised an easy and interesting read. Although lawyers are not
obliged to make their writing interesting, doing so does have the
effect of helping the reader pay attention to the argument.
In this case, the writer felt the need to interpolate a detailed
narration (foyer) between the opening paragraphs (the front
porch) and the analysis of first issue (the first in a series of rooms).
He did this by telling the story of the lineup in which Mr.
Saunders was identified, beginning with, There were three lineups.
The first occurred . The second occurred . The third
occurred .
In most cases, however, a simple story-plus-issue is the best
way to gain the readers interest and attention. But the temptation
to write abstractly is hard to resist. Here is the opening paragraph
in a case about unlawful detention:
[1] T his is an application suppor ted bbyy an af
supported afffidavit
idavit
in which the applicant is seeking to be admitted
to bail pending her trial. T he af afff ida vit disc
idavit loses
discloses
that the applicant who has been in custody since
October, 1985 was on 3 rd December, 1985
committed to the High Cour t ffor or trial ffor
or the
offence of Infanticide. On 18 December, 1985
th
she applied to the High Cour t at Kitw Kitwee to be

admitted to bail pending her trial.
This is an adequate beginning, but it reads like an abstract
problem in the law instead of what it really is, a case about a
young woman who has been improperly held in jail without bail.
Starting with the story would have given the case the sense of
urgency and human significance it deserved:
[1] Rosemar
osemaryy Chilufy
Chilufyaa has been in jail ffor or near
nearll y
five months, awaiting trial on a charge of
inf anticide. T he High Cour t has rrefused
infanticide. efused to set
bail, on the ggrr ound that inf anticide is a ffor
infanticide or m of
murder, and murder is not a bailable offense. A
thr eshold issue in this case, ho
threshold howw e v er
er,, is w hether
whether
the Supr eme Cour t has the authority to
Supreme
Stating the issues effectively requires steering a course midway
between too much detail and too little. The example below
provides too much detail because it overwhelms the reader and
predicts what follows in bewildering specificity:
1. The issues in this appeal in respect of the
Appellant
ppellantss 1994 taxation yyear
ear ar e:
are:
a. Whether the Appellant, in determining LCT
liability under Part 1.3 of the Act, is entitled to
deduct the amounts of the Estimates from its
capital, or whether such amounts are to be
included in its capital:
i. as reserves pursuant to ss.181(1) and
181.2(3)(b), or
ii. as other surpluses pursuant to
s. 181.2(3)(a);
b. Alternatively, if the Estimates are reserves or
other surpluses, whether the Appellant, in
computing its income under Part I of the Act , is
entitled to deduct the amounts of the Estimates
from its revenue;
c. Whether the Appellant, in determining LCT

liability under Part 1.3 of the Act, is entitled to
deduct the $37,481,776 amount as a deferred
tax debit balance within the meaning of
s.181.2(3)(h).
The other extreme is to provide too little detail:
The issue is whether the appellant is entitled to
deductions he cclaimed
laimed on his tax rretur
etur ns ffor
eturns or 1994.
This version does not predict the structure of what follows,
nor does it give the reader a glimpse of the grounds on which
each side bases its argument.
It is also possible to provide too much and too little at the
same time too much by including information the reader does
not need at the outset; too little by not explaining what is at
stake and by presuming a reader who knows the code by heart:
The issue is whether the appellant is entitled to
deductions pursuant to ss.181(1), 181.2(3)(a),
181.2(3)(b), and 181.2(3)(h) of P ar
artt 1.3 of the
Par
Income Tax Act.
A good statement of issues foreshadows the structure of what
follows, and provides the reader with a glimpse of the grounds of
the argument. It does not cite laws, precedents, or records that
can be more usefully cited in the analysis section. In this particular
case, after a brief description of what the appellant claimed in his
tax returns, the issues might have been effectively stated like this:
The issues are:
Whether the Appellant is entitled to deduct
the amounts of the Estimates fr om its capital;
from
the amounts of the Estimates from its revenue;

the $37,481,776 as a def er r ed tax de
defer bit
debit
balance.
balance.
Some pleadings (for example, an appellants opening brief
filed in a United States Court of Appeals) are required by rule to
begin with a statement of jurisdiction, even if jurisdiction is not
contested. If you are writing such a pleading, minimize the
distraction by making it seem like the boiler plate that it is. Give
it a heading (Jurisdiction) and a single sentence citing the
applicable rule. If possible, set it off in a box in a corner of the
page a ritual recognition that you would not be in court if you
had no right to be there.
Then use another heading (Background, Introduction,
or Summary of the Case) to direct your readers attention to
your brief narrative and statement of the issues. If jurisdiction is
actually contested, list it as your first issue, but save your argument
for the analysis section. Avoid getting bogged down in a
jurisdiction issue before telling your version of the essential facts.
A strategic narrative of the facts may dispose your reader to rule
in your favor on jurisdiction when the ruling could reasonably
go in either direction.
When jurisdiction and standing are uncontested, starting with
Pursuant to to answer a non-argument is like putting a hotdog
stand on prime real state. The first paragraph and the last are
possibly the only places where you can count on the readers
attention. Why waste this space by filling it with information the
reader can be presumed to know?
A good beginning makes the reader want to read more. A
notable example is this introduction in a per curiam by the Ontario
Court of Appeals:
[1] Professor Starson is an exceptionally intelligent

man. His ffieldield of eexper
xper tise is ph ysics. Although
physics.
he has no ffor or mal qualif
ormal ications in that ffield,
qualifications ield, he is
in regular contact with some of the leading
ph ysicists in the w
physicists wor or ld. In 1991, he co-author
orld. co-authored ed
an ar tic le entitled, Discr
ticle Discrete ete Anti-Gra
Anti-Gravityvity
vity,, with
Pr of
Prof essor
ofessor H. Pier
Pierr Noy who teaches ph
r e No y es, w ho teac hes ysics at
physics
Stanford University and is the Director of the
Stanford Linear Accelerator Center. Professor
No
Noyy es has described Pr of
Prof essor Starson
ofessor Starsons thinking
in the ffield
ield of ph ysics as being ten yyears
physics ears ahead of
its time.
[2] Unf or
Unfor tunatelyy, Pr
tunatel
ortunatel of
Prof essor Starson has a histor
ofessor historyy
of mental illness, dating back to 1985. He has
been diagnosed as suffering from a bipolar affective
disorder. On several occasions during the last fifteen
(15) years, he has spent time in mental institutions.
Novv ember 1998, Pr
In No of
Prof essor Starson w
ofessor as ffound
was ound
not criminally responsible on account of mental
disorder on two counts of uttering death threats.
In JJanuar
anuar
anuaryy 1999, the Ontario R Reeview Board or
Board ed
dered
order
der
that he be detained at the Centre of Addiction
and Mental Health (the Centre).
Notice that this passage does not call attention to itself as
writing. The words are transparent, invisible, like lenses through
which we see characters and events. The writer does not seem to
be trying to write. The art conceals the artifice. It is as if the
story wrote itself. But of course it did not. A story is almost
always an argument all the more effective because it does not
seem like an argument.
In this case, the plot thickens when we find out that the
unusual Professor Starson has a history of mental illness. And
it thickens further when we discover a few sentences later that he
does not want the medication the Ontario Review Board wants
to give him, because it would cloud his mind and hinder his ability
to conduct his theoretical research.
A beginning like this entices the reader to continue reading.
Who would not be curious to know how the case was resolved?
F . Write an ending
ending..
If you are a lawyer, do not pass up the opportunity to recapitulate
the essence of your argument at the end. Briefly summarize what
you want the court to decide, what remedy you want the court
to grant, and what grounds the court has for granting it. Write
your conclusion as if you suspected that a busy judge might read
your ending before reading anything else, hoping to find there
your argument in a nutshell.
If you are a judge, your concluding section may include
only an order. However, if you think the court above yours, or
the press, or the losing party might miss the essence of your
analysis, use your conclusion as a summation. Repeat your analysis,
but in different words, and succinctly. Brevity is essential. A
conclusion that exceeds one page is likely to seem like a new
argument instead of a conclusion.
The concluding section also provides an opportunity for
obiter dicta instructions to the Bar on related matters that are
not logically essential to the case you are deciding. And when
your decision is based on common sense or pure equity, the
concluding section can include what I like to call the To-rule-
otherwise trope. Judges rely on this device when they have little
or no law to justify their decisions. To rule otherwise would be
to invite they say, and then list the horrible, unjust, and
illogical things that would follow from a different decision.
The concluding section of a brief or motion provides a similar

opportunity for lawyers when justice, equity, or common sense is
on their side, but the law is not particularly helpful. Pointing out
unjust consequences can be persuasive when the law is a feeble
ally.
In a very short pleading, where repeating the reasons would
be tedious, a conclusion that specifies the relief sought without
repeating the reasons may be adequate.
CONCLUSION
F or the rreasons
easons aboabovv e, plaintif
plaintifff s Motion to
Remand is due to be ggranted. Plaintifff asks this
ranted. Plaintif
Cour
Courtt to issue an or der rremanding
order emanding this action to
the Cir cuit Cour t ffor
Circuit or Barbour County
County,, Alabama,
Clayton Division. In addition, plaintiff requests
that this Cour t or der def
order endants to pa
defendants payy all just
costs and eexpenses,
xpenses, inc luding attor ney
including neyss ffees,
ees,
incur esult of the impr
incurrred as a rresult oper and ggrroundless
improper
r emo
emovval of this case.
It would take only minor editing to make this conclusion
appropriate for a judgment:
F or the rreasons
easons abo abovv e, plaintif
plaintifff s Motion to
ranted. T his action is rremanded
Remand is ggranted. emanded to the
Cir cuit Cour t ffor
Circuit or Barbour County
County,, Alabama,
Clayton Division. In addition, defendants will pay
all just costs and eexpenses,
xpenses, inc luding attor
including ney
neyss ffees,
attorney ees,
incur
incurrred as a rresult
esult of the impr oper and ggrroundless
improper
r emo
emovval of this case.
In a pleading of any complexity, however, an ending of this
sort misses an opportunity to revisit the argument. A brief review
of the argument, like the one below, can assist the reader.
CONCLUSION
Def endant, Tarw
Defendant, ater Tobacco Co
arwater Co.,., has succeeded
in ha ving this case rremo
having emo
emovv ed fr om state to ffederal
from ederal
cour
courtt on ggrr ound that Tarw ater
aterss local ag
arwater ents w
agents er
eree
wer
named as co-defendants by plaintiff as a ruse
(fraudulent joinder) to obtain a favorable local
venue.
T he standar
standardsds ffor emovval on the basis fraudulent
or rremo
emo
of joinder ar aree quite high. In this case, Tarw ater
arwater
w ould ha havv e had to pr proov e either that ther
theree is no
possibility of a verdict against the local defendants,
or that the complaint against them was based on
f alse inf or mation.
infor
Tarw ater has met neither standar
arwater d. T her
standard. heree is no
evidence of fraudulent inf or
infor mation in the joinder
ormation joinder..
Nor is there any question that a jury would find
ag ainst Tarw
against ater
aterss local ag
arwater ents if the ffacts
agents acts alle
allegg ed
ar
aree pr
proov ed at trial.
For these rreasons,
easons, w espectfullyy rrequest
wee rrespectfull
espectfull equest the cour
courtt
to rremand
emand the case to the Cir cuit Cour t ffor
Circuit or
County,, Alabama, Cla
Barbour County yton Di
Clayton vision, fr
Division, om
from
w hic
hichh it w as r emo
was remo v
emov ed.
We also rrequest
equest the courcourtt to or der that costs and
order
attor ney
neyss ffees
attorney ees be assigned to Tarw ater
ater.. T heir ffailur
arwater ailur
ailuree
to pr
proovide cr edib
credib le eevidence
edible vidence ffor
or their cclaim
laim amounts
to a frivolous delaying tactic, taxing the plaintiff
with unnecessary costs and taxing the resources of
this cour t.
It may seem paradoxical that a good ending resembles a good
beginning (which, in turn, often resembles a good head note).
The resemblance is not accidental. Judges and lawyers are busy
people. They do not necessarily read from top to bottom. If they
get lost in an argument, they may flip to the end, hoping to find
a synopsis there. They will not be helped by a conclusion that
says merely, For the foregoing reasons, sending them right
back to the thicket they had just abandoned. An effective
conclusion summarizes those foregoing reasons in a nutshell, in
plain English, without repeating citations and references that are
already included in the body. Here is how the Ontario court
concluded the case about Professor Starson:
[14] Putting aside an anyy pater nalistic instincts
paternalistic
and we think that neither the Board nor the
appellants have done so we conclude that
Professor Starson understood, through the screen
of his mental illness, all aspects of the decision
whether to be treated. He understands the
inf or mation rrele
infor elevv ant to that decision and its
ele
reasonably foreseeable consequences. He has made
a decision that may cost him his freedom and
accelerate his illness. Many would agree with the
Board that it is a decision that is against his best
interests. But for Professor Starson, it is a rational
decision, and not one that reflects a lack of
capacity
capacity.. And ther
therefef or
efor e, it is a decision that the
ore,
statute and s.7 of the Canadian Char ter of Rights
Charter
and FFrr eedoms per mit him to mak
permit make.e.
[15] T he appeal is dismissed.
Enough said.
G . Review yyour
our draft with a cchec
hec klist and a friend.
hecklist
Persuade a friend, preferably a non-lawyer with no knowledge
of the case, to help you review your draft with the following
checklist:
Ask your friend to tell you, after reading only the first
page, who did what to whom and what issues need to be
settled.
Test the overall structure by asking your friend, after
reading only the introduction, to guess what headings
will follow. If there is a good match between the
introduction and the structure that follows, your friend
should be able to guess, in substance, the case-specific
headings that separate the analysis of each issue from the
others.
Ask your friend to tell you, after reading the last full
page, what you decided (or what you want the court to
decide) and what grounds you gave for the decision.
Ask your friend to locate the beginning and the end of
the analysis of each issue and to tell you the losing
(or opposing) partys argument and the flaw you found
in it.
Check for economy and consistency. If you announced
five issues at the outset, be sure that you have analyzed
five issues. Delete any information that is irrelevant to
the issues. Look for repeated information; see if it can be
mentioned in one place and omitted in the other.
If your friend does not answer any of these questions to your
satisfaction, do not explain. Revise.
A well-written pleading or judgment is as smooth as a grape.
There is nothing extra.
R ECOMMENDED R EADING :
Garner, Bryan A. The Winning Brief: 100 Tips for Persuasive

Briefing in Trial and Appellate Court. New York: Oxford UP,
1999.
Stark, Steven D. Writing to Win. New York: Doubleday, 1995.

Writing Style
Justice Camilo D. Quiason (ret.)
Supreme Court
I. INTRODUCTION ..................................................................................... 141

II. STAGES OF WRITING PROCESS ........................................................ 142
A. Pre-Writing
B. Writing
C. Rewriting
D. Revision
E. Polishing
III. ELEMENTS OF EFFECTIVE STYLE ............................................ 143
A. Simplicity
B. Conversational Quality
C. Individuality
D. Correctness
IV. POINTERS ON STYLE ........................................................................... 144
A. Words
B. Phrases and Clauses
C. Sentences
Justice Camilo D. Quiason (ret.) is a member of PHILJA's

Department of Jurisprudence and Legal Philosophy. He was
appointed as Associate Justice of the Supreme Court on
February 2, 1993 and retired on July 18, 1995. He was formerly
Vice President and General Counsel, Meralco Securities
Corporation (1972-1973); Designated Special Prosecutor,
Department of Justice (1963-1964); Solicitor, Office of the
Solicitor General (1956-1966); and Acting City Judge,
2002] WRITING STYLE 141
I. I NTRODUCTION
NTRODUCTION
According to Fogiel, style is the art of creating a well-balanced

writing that flows effortlessly and gives the reader the feeling that
the writer knows the subject. He is referring to the manner a
writer expresses his ideas. Style is personal to a writer and is said
to be a window of his personality. Some writers have a style of
writing peculiar to them to the extent that you can identify them
just from the way their articles are written.
Style is the product of the writers experience and is the
influence of many things, including his reading habits, academic
background, and his knowledge of the rudiments of grammar. If
one wants to write well, he must read a lot of good writing.
Municipal Court of Manila (1958-1964). He is also currently

Corporate Secretary and General Counsel of Manila Electric
Company; Director of Lopez, Inc. (formerly Benpres
Corporation), Enrico Realty Corporation, First Philippine
Holdings Corporation, Eugenio Lopez Foundation, Inc., Manila
North Tollways Corporation, First Philippine Industrial
Development Corporation, Maynilad Water Services, Inc.,
Semper Investment, Inc., and Quemabar Investment, Inc.; and
Founding Partner of the Quiason Makalintal Barot Torres &
Ibarra Law Firm. He is a Member of the Academy of American
and International Law Alumni Association of the Philippines,
Association of Judge Advocate General, Fullbright Scholars
Association of the Philippines, Integrated Bar of the
Philippines, Philippine Commission of Jurists, Philippine
Society of International Law, and the University of the
Philipines Alumni Association. He obtained his law degree and
Master of Laws degree from the University of the Philippines,
and finished Special Studies from Southwestern Legal Center,
Dallas, Texas.
To improve your style of writing, you can select some writers

you admire and then use them as your model. Select the good
qualities in their writings and adapt them in your own style.
Carefully analyze the sentence structure, syntax, diction, the use
of monosyllablic words, the tone and rhythm, and how the writing
unfolds. By doing so, you may discover the weaknesses in your
writing.
II. S TAGES OF W RITING P ROCESS
The writing process incorporates five stages: pre-writing, writing,

rewriting, revising, and polishing.
A. Pr
Pree -Writing
-Writing
The pre-writing stage consists of the organization of ideas that
have to be translated from the writers mind into written form.
The writer collects his thoughts and outlines all the points he
wants to make.
B. Writing
Next, the writer prepares the first draft. This is the writing stage,
where the writer should keep on writing without stopping to
correct anything.
C. Rewriting
Rewriting follows the writing stage. The text is moved from the
writer-oriented first draft towards a reader-oriented, final draft.
D. Re vision
Revision comes after the rewriting of the draft. It concentrates
on sentence structure, grammar, and punctuation.
E. Polishing
The last stage of the writing process is polishing, which includes
checking for grammatical and typographical errors. Failure to
polish the legal writing can erode the meaning and import of the
writing.
III. E LEMENTS OF E FFECTIVE S TYLE
Four elements that contribute to an effective and pleasing style

are: simplicity, conversational quality, individuality, and
correctness.
A. Simplicity
Simplicity is expressing ones ideas in terms that are clear, logical,
and specifically geared to the level of the persons for whom one
is writing. In the case of lawyers, their writings may be intended
for other lawyers, judges, and government officials, or for their
clients. It goes without saying that the writings intended for clients
should have a simpler style.
Simplicity in writing is often more effective than pompous
language that makes the writing sophomoric. Shaw says:
Simplicity without substance is childish; but great
thoughts, like great inventions of whatever kind, achieve
much of their effectiveness and power through simplicity.
(IV, 38)
B. Con
Convversational Quality
The conversational quality of what we read helps us to grasp the
idea being presented. It also makes the writing more relaxed and
sound less didactic.
C. Individuality
Individuality is the imprint of the writers personality on his
writings.
D. Cor
Corrr ectness
Lastly, the writing must be correct both factually and
grammatically. To be grammatically correct, a sentence must be
consistent in tense, subject, voice, number, and person.
IV
IV.. P OINTERS ON S TYLE
A. Wor ds
ords
1. Use economy of words. Economy in the use of words may

be achieved through the following methods:
a. Change adjectives into nouns.

Instead of:
What impressed me most was the fact that he was very frank.
(12 words)
Write:
What impressed me most was his complete frankness.
(8 words).
b. Change adjectives into adverbs.

Instead of:
The crowd cheered in a way that was wild. (9 words)
Write:
The crowd cheered wildly. (4 words)
c. Change verbs into nouns

nouns. Use gerunds.
Instead of:
Often the beauty of a dress lies in the way it is worn.
(13 words)
Write:
Often the beauty of a dress lies in the wearing. (10 words)
d. Chang
Changee vverbs
erbs into adjecti
adjectivves. Use the suffixes
-able, -ed, and -ing to change verbs into adjectives.
Instead of:
That was a play you could really enjoy seeing. (9 words)
Write:
That was really an enjoyable play. (6 words)
e. Use the infinitive phrase instead of a clause

be ginning with that or so that.
beginning that.
Instead of:
Open the window so that you get some fresh air. (10 words)
Write:
Open the windows to get some fresh air. (8 words)
f. Remo
emovve w or
wor ds lik
ords likee w ho has or w
who hic
hichh is in
whic
relative clauses.
Instead of:
Our neighbor, who was the mayor of the town, was always
very friendly to us. (15 words)
Write:
Our neighbor, the town mayor, was always very friendly to
us. (11 words)
g. Use a pr
pree positional phrase to star t a sentence
instead of an adverbial phrase
phrase.
Instead of:
As soon as spring arrives, we will go out to the lake every
Sunday. (14 words)
Write:
In spring, we will go out to the lake every Sunday.
(11 words).
h. Use a single adjecti

single adjectivve to do the work of a phrase
work
For instance, a brave man for a man of bravery. There are
cases, however, when the phrase is better than the single word,
as when it yields emphasis or rhythm, e.g., a thing of beauty
instead of a beautiful thing.
i. Delete rredundant
edundant or unnecessar
unnecessaryy w or
wor ds.
ords.
j. Use shor
shortt wor
words, w
ords, hic
hichh ar
whic aree usuall
usuallyy cclear
learer
er,, crispier
learer crispier,,
and more exact.
If you have a choice between a short and a long word
conveying the same meaning, use the former. But when a
longer word is clearer and more exact, by all means, use it.
2. Be accurate in the choice of words.

3. State the points to be emphasized in concrete and specific

terms. The minds of the readers respond more readily to the
specific, the tangible, and the concrete. Conversely, the use of
abstract terms serve to de-emphasize a point. A hungry man
is not interested in an academic discussion like nutrition or
nourishment; uppermost in his mind are sizzling steak, crispy
pata or hamburger.
4. There are various ways of emphasizing a word or group of

words:
a. Give more space to the more important, rather than the
less important idea of a sentence.
b. Place the more important part in a prominent position,
which is either the beginning or the end of the sentence.
The latter kind of sentence is called the period sentence.
c. Transitive words shall not be placed at the beginning or
end of a sentence, unless the sentence is very short.
d. The main thought in the sentence should be put in the
main clause in order to be emphasized.
5. Do not use while in place of although, and do not use

since in place of because.
a. Although he does not have all the answers, he does know
the questions. (With while, the sentence can mean
during the time he does not have the answers.)
b. Because he has talked with the lawyer, we have decided
they are serious. (With Since instead of Because, the
sentence can refer to time, i.e., Since the day he talked
with the lawyer)
6. For emphasis, a writer may also use parallelism, which is the

use of repetition of like words in the same order. Parallelism
means like construction for like ideas. An example of
parallelism is Julius Caesars I came, I saw, I conquered, instead
of After I arrived, I looked, and then I conquered.
Parallelism may be formed with two or more words, phrases,
dependent clauses, independent clauses or sentences.
7. For a vigorous style, use balance structures. Unlike using

similar words as in parallelism, a balance structure uses words
which are roughly of the same length and which sound
rhythmical to the readers ear. Rhythmic pattern within
sentences increases readability. The Bible uses abundantly the
device of balance structure. Another way of attaining a
rhythmic flow or sequence of sound is the use of an alternation
of stressed and unstressed syllables.
To determine the subject, predicate, and object of a
sentence, ask yourself the question: Who is doing what to
whom? Then focus on these three key elements: the actor
(who), the action (doing what), and the object (to whom).
Avoid wordy sentences. There are words that can be
deleted from the sentence, although not redundant, without
changing the thought conveyed, thereby making the sentence
crispier and clearer. See to it that the proportion of glue
words to working words is not too high.
8. Be consistent in using the same word for the same idea. Once
you used a word in writing, do not use its synonyms in the
subsequent portions thereof, for the reader will be wondering
if you are changing the sense of what you have said before.
Use short sentences to emphasize a point. A short sentence

is easier to read and makes a stronger statement. However, do
not use such emphatic sentences in a row, which could cause
an impression of an impatient, angry tone. Also, do not use
choppy sentences which read like telegrams.
B. Phrases and Clauses
1. Modifying adjectives, adverbs, phrases, and clauses should be

placed close to what they are talking about, and the
relationship between these words and their antecedents should
be clear and logical. Otherwise, you will have dangling
modifiers.
Wrong:
Lying in the sun, the day was clear.
Correct:
Lying in the sun, I enjoyed the clear day.
Do not use a conjunction followed by a pronoun when
linking a subordinate clause to a main clause. A conjunction
can only be used when linking grammatical units of the same
kind. A phrase cannot be joined to a clause.
2. Put your minor ideas in subordinate clauses or phrases and

your main ideas in the main clauses or phrases.
3. Avoid mixing metaphors. Mixed metaphors result when the

writer uses incongruous words in comparing objects.
Wrong:
The long arm of the law smelt the criminals in their hideout.
Correct:
The long arm of the law caught the criminals in their hideout.
C. Sentences
1. To write effective sentences involves matters such as unity,

completeness, coordination, word order, and transition:
a. A sentence has unity when it contains a single thought or
a group of closely-related words.
b. A sentence, to be complete, must have both a subject
and a predicate.
c. Coordination is the placing of important thoughts in
main clauses and minor ideas in subordinate clauses.
d. The usual word order of the elements of a sentence is:
first, the subject; second, the predicate; and third, the
object. Start the sentence with its subject. If the subject
is placed at the end of the sentence, the reader will have
to comprehend all the words that precede it before it
appears. For emphasis, the elements of the sentence may
be inverted with the predicate at the beginning and the
subject at the end. This is the periodic sentence, where
the full meaning is not initially apparent and appears only
at the end. Therefore, the reader is kept in suspense. Keep
the subject and the predicate closely together. The sense
of the sentence cannot be understood unless the subject
and the predicate are used as a unit.
e. Transition refers to the method by which writers
bridge gaps in what has been covered once he reads them.
2. Express your thoughts in affirmative, not negative, sentences.

The reader can understand affirmative sentences more quickly
and easily than negative ones.
3. Avoid beginning or ending a sentence with weak and relatively

unimportant words or ideas. This is where the attention of
the reader is most keen. Reserve the beginning position for
the more emphatic word. There are times when a transitional
word like and or but, ordinarily weak words, have to be
placed at the beginning of a sentence for emphasis.
4. Avoid the continuous use of only one kind of sentence

structure. Intersperse long sentences among short sentences,
compound sentences among single sentences, sentences with
modifiers at the end, the beginning, or in the middle.
5. Sentences should vary in length. Using several short sentences

in succession or in a row can create an impression of an
impatient, angry tone. Using only short sentences makes the
writing monotonous.
6. Avoid run-on sentences which do not stop.
7. End your sentences swiftly and effectively.

Plain English
I. INTRODUCTION .............................................................................. 154

II. VISIBLE ELEMENTS OF STYLE ................................................. 158
A. Avoid legalese and foreign languages.
B. Substitute ordinary English for lawyerly English.
C. Call parties by name rather than by their positions
in court.
D. Avoid parenthetical aliases.
E. Use as few words as possible.
F. Avoid the verb to be when it can be replaced
by a more specific verb.
G. Avoid it and there as dummy subjects.
Delivered at the Lecture on Judicial Writing, on May 21, 2002,

at the PHILJA Conference Room, Manila. Copyright James C.
Raymond 2002.
Dr. James C. Raymond, PhD, has been teaching legal writing to

judges and lawyers from North America to Australasia for more
than twenty (20) years. He has conducted a series of lectures
and seminars upon the request of Supreme Courts, legal and
judicial organizations, and educational bodies. His books on
legal writing include Clear Understandings: A Guide to Legal
Writing, Moves Writers Make, English as a Discipline, Literacy
as a Human Problem, and Writing (Is An Unnatural Act). He
has also written articles for the Pepperdine Law Review, Alabama
Law Review, and The Judicial Review: Journal of the Judicial
Commission of New South Wales, as well as the preface to
Decisions: A Practical Handbook for Judicial Writing.
2002] PLAIN ENGLISH 153
H. Avoid passive voice.

I. Avoid using words with overlapping meaning in the
same sentence.
J. If it goes without saying, let it go unsaid.
K. Avoid block quotations.
L. Avoid quoting the charge (unless the language of the
charge is at stake).
M. Dont put dates, times, or places in the judgment just
because they happen to be in the record.
N. Write short sentences?
O. Avoid faulty parallelism.
P. Avoid redundant doublets and triplets.
III. INVISIBLE ELEMENTS OF STYLE ............................................... 173
A. Dont use commas unless you need them.
B. Put a pair of commas around clauses beginning with
which.
C. Dont confuse which with that.
D. Dont put ellipsis dots at the beginning of quoted
material.
E. Avoid misplaced modifiers.
F. Make sure subjects and verbs agree.
G. Make sure the verb agrees with the subject, even if it
links a plural noun with a singular noun.
H. Make sure objects are in the objective case.
I. Use possessives before gerunds.
J. Dont split infinitives.
K. Dont end sentences with prepositions
IV. TESTING FOR PLAIN ENGLISH .................................................. 183
I. I NTRODUCTION
NTRODUCTION
From a pragmatic perspective, writing is good if it conveys what

the writer wants it to convey to the readers that he/she wants to
reach. This is obviously a relative standard. Technical jargon is
good if its intended readers know the jargon so well that they
hardly notice it. Scientists and engineers are entitled to write to
other scientists and engineers in ways that only they can understand.
Of course, the rest of us are grateful when they write in ways that
we find interesting and easy to read. But there is no reason
to hold specialists to this standard when they write for other
specialists.
Why then do we complain when lawyers write about the law
in a language that excludes non-lawyers?
Because law is rarely an exclusive preserve of experts the way
science and technology are. Non-lawyers are expected to
understand and abide by the law. Most people can get by without
understanding physics or microbiology or cybernetics. But law
touches other peoples lives more directly than other disciplines,
and ordinary people are understandably annoyed when lawyers
write to them or about them in a language that only other lawyers
can understand.
There is another good reason for lawyers to write in plain
English: it enables them to understand one another. In fact,
sometimes it enables them to understand themselves.
One of the great myths of the legal profession is that the
language of the law is precise and scientific, hallowed and refined
by centuries of precedent, as clear to lawyers as scientific and
mathematical symbols are to scientists and mathematicians.
Nothing could be farther from the truth. Ask a lawyer whether
there is a significant difference between Will and Testament.

Not one in ten can tell you; but they will insist on using both
words for fear that something might go wrong if they dont.
Legal language is not clear if no one understands it. Yet lawyers
repeat it, like magical incantations passed from one generation of
a secret society to the next, quarantined from the evolution that
makes ordinary language intelligible to people who use it.
I sometimes test the notion that legal language is intelligible
to lawyers by projecting the following passage onto a screen:
The governments concern lest the Act be held to be a
regulation of production or consumption rather than of
marketing is attributable to a few dicta and decisions of
this court which might be understood to lay it down that
activities such as production, manufacturing, and
mining are strictly local and, except in special
circumstances which are not present here, cannot be
regulated under the commerce power because their effects
upon interstate commerce are, as a matter of law, only
indirect.
At first, any roomful of lawyers will claim that the passage is
perfectly clear. But then I remove it from the screen and ask,
OK, is the government concerned that the court is going to do
something or concerned that the court is not going to do
something? Invariably there is no consensus among the group,
often no response at all.
Notice that aside from the word dicta, there is no technical
language to blame for the obscurity. If we changed dicta (short
for obiter dicta) to asides or digressions, the passage would
not be materially improved. The problem with legal language,
then, is not just that it is laden with legalisms and Latin. The
problem is that many lawyers get themselves tangled in syntax so
knotty that they cannot understand it themselves.
The proof that lawyers could write about the law in plain
English with precision is that some of them do. Good models
abound. I dont mean just lawyers-turned-novelists, like Turow
and Grisham. I mean lawyers who write lucidly about the law:
Jeffrey Rosen in the New Republic and occasionally in The New
Yorker; Linda Greenhouse in The New York Times. Every year
lawyers publish books that are perfectly intelligible and even
interesting to non-lawyers. Good examples include Actual
Innocence (by Barry Scheck, Peter Neufeld, and Jim Dwyer);
The TV or Not TV: Television, Justice, and the Courts (Ronald
L. Goldfarb); One Case at a Time (Cass Sunstein); Closed
Chambers (Edward Lazarus); A Civil Action (Jonathan Harr);
The Buffalo Creek Disaster (Gerald M. Stern); and Getting
Away with Murder: The Canadian Criminal Justice System (David
M. Paciocco). Law and Literature (Richard A. Posner) is more
scholarly in style, but light years ahead of most academic writing
in clarity.
And Nina Totenberg of NPR. We may think of Totenberg
as a newscaster rather than a writer, but her reports on the U.S.
Supreme Court are invariably models of precision and clarity.
Nothing in the nature of the law prevents lawyers and judges
from communicating with the public in the same way.
Good legal writing is characterized partly by absences: an
absence of unnecessary repetition, an absence of irrelevant detail,
and an absence of tangled sentence structure. In good writing,
every word counts. Remove one and you miss it, just as you would
miss a piece left out of a jigsaw puzzle. If you are an experienced
reader of legal arguments, you know how tedious they can be,
not because the concepts are difficult, but because they have been
obscured by verbiage that serves no purpose.
Good legal writing is also characterized by an absence of
unnecessary jargon. Of course, every profession has its special
language. Even non-lawyers have to accept expressions like
estoppel, habeas corpus, and arguable decree nisi, if there are
no handy equivalents in ordinary English. But there is no excuse
for phrases like inter alia when there are handy English equivalents
(among other things). And while it may be understandable
that lawyers would speak to one another of filing a pro hac
petition, nunc pro tunc, they should probably tell their clients
that they are seeking permission, retroactively, to practice in a
jurisdiction other than their own.
Nor is there any reason for lawyers to use ordinary words
(such, same, said) in ways that ordinary people do not use
them. In his A Primer of Opinion Writing for Four New Judges,
George Rose Smith of the Arkansas Supreme Court tells new
judges to test for legalisms by imagining how a phrase would
sound if in ordinary conversation. You would never say, I have
mislaid my keys, dear, have you seen same? You would never say,
Sharon Kay stubbed her toe. Such toe is mending now. You
would never say, May I have another slice of pie? Said pie is the
best you ever made. Nor would you say, Let me tell you
something funny about our dog, hereinafter called Mo. This
sort of mumbo jumbo may impress the uneducated, but it makes
lawyers the laughing stock of literate society.
To be fair, lawyers have the good grace to laugh at themselves.
Hardly a year goes by without someone sending Christmas
greetings that parody the worst habits of the profession. One
year it was a card that began, From us (the wishor) to you
(hereinafter called the wishee). Another year it was a well known
Christmas tale that began, Whereas, on or about the night before

the Holiday of which one can take judicial notice is commonly
called Christmas.
To write parodies like these, someone, presumably a lawyer,
has to say, How can I modify perfectly lucid language to make
it sound as though a lawyer wrote it?
The cure for legalese is to reverse this process. Rules for plain
English may heighten your awareness, but the main thing is
attitude and determination. If you want to sound like an ordinary
person instead of like a lawyer, ask yourself at every turn, How
would I say this if I were speaking to my next door neighbor or
to my mother-in-law? assuming, of course, that your next
door neighbor and your mother-in-law are not lawyers.
II. V ISIBLE E LEMENTS OF S TYLE
The rules below will help you identify legalisms and locate
situations in which you could tighten up your flabby prose. Follow
these rules and your prose will be visibly improved.
A. Avoid le
leggalese and ffor
or eign languag
oreign es .
languages
Legal writing has a few legitimate terms of art words or phrases
that either cannot be easily translated or perhaps should not be
translated because the original language triggers a doctrine that
lawyers might not recognize by any other name (e.g., habeas
corpus, estoppel). Aside from exceptions like these, however, the
law works best even for lawyers when non-lawyers can make sense
of it.
I NSTEAD OF THIS :
Hotstuff has to establish (inter alia) that the peppers

were delivered to the right place and at the right time.
DO THIS :
Hotstuff has to establish, among other things, that the

peppers were delivered to the right place and at the right
time.
B. Substitute ordinary English for lawyerly English.

I NSTEAD OF THIS :
He confessed prior to being advised of his rights.

Mr. Noto signed the contract. Said contract specified a
price and a schedule of payments.
DO THIS :
He confessed before he was advised of his rights.

Mr. Noto signed the contract that specified a price and a
schedule of payments.
C. Call par ties bbyy name rather than bbyy their positions
parties
in cour t.
court.
Calling parties by positions often requires readers to skip back
and forth between the text and the cover sheet (style of cause
in some jurisdictions).
I NSTEAD OF THIS :
Respondent and two other shareholders set up Lakeside

Realty in 1978.
DO THIS :
John McIntyre and two other shareholders set up Lakeside

Realty in 1978.
I NSTEAD OF THIS :
Plaintiff claims that Defendant had failed to provide

payment for sixteen carloads of chile peppers delivered
over a six week period.
DO THIS :
Hotstuff claims that Kiwimart had failed to provide

payment for sixteen carloads of chile peppers delivered
over a six week period.
Referring to people by their proper names can help avoid
confusion on appeal, particularly when the position of the litigants
has changed from moving party to responding party. Sometimes,
of course, it is impossible to call parties by individual names,
particularly when there are multiple plaintiffs or multiple
defendants. Then you have no choice but to resort to their
positions in court or to group them under some other appropriate
heading (e.g., the survivors, or the victims, or the Joneses).
Practice varies regarding subsequent references to persons
named in the opening paragraphs. Should you call them by their
first names only which some litigants might regard as excessively
familiar? Or by last names only, which some litigants might regard
as unmannerly?
Some lawyers think that by calling opposing parties by their
positions before the law (e.g., applicant or defendant), they
mask the humanity of opposing parties and make them less
sympathetic in the judges eyes. Most judges, however, having
practiced law themselves, are likely to see that ploy for what it is.
Certainly the most polite option is to refer to litigants with
their ordinary titles, (e.g., Mr., Miss, Ms., Lieut., Rev., etc.). This
is standard editorial practice in The New York Times, even when
dealing with the most heinous criminal. Oddly enough, treating

opposing litigants with this semblance of respect may be
paradoxically persuasive. If you call someone Mr. Capone, and
then calmly explain the irregularities in his tax returns, or Mr.
Bin Laden, and then present compelling evidence of his
complicity in terrorism, you seem to be above politics, passion,
and personal vendetta. You seem to be a servant of the law, serenely
objective, rather than a crusader whose reason may be clouded by
emotion.
Using conventional titles for all parties, particularly when
there is a legitimate argument at issue, endows judgments and
pleadings with a kind of magisterial dignity and mitigates the
losing partys embarrassment. And when the losing or opposing
party is patently undeserving of respect, there is little danger that
a proper title will convey it; if anything, the subtle irony of
unmerited deference is persuasive in itself.
I NSTEAD OF THIS :
Hemphill responded that McIntyre should either invest

more capital or personally guarantee a loan.
C ONSIDER THIS :
Mr. Hemphill responded that Mr. McIntyre should either

invest more capital or personally guarantee a loan.
Subsequent references to parties in family law are particularly
difficult to manage. If the parties are divorced, they may object
to being called the husband and the wife, or Mr. Jones and
Mrs. Jones (though in this situation, the modern Ms. Jones serves
a useful purpose because it implies nothing about marital status).
In custody disputes, it is often possible to refer to the parties as
the mother and the father. Depending upon the culture and
on the parties, first names might seem friendly or inappropriately
chummy. Its all a matter of perception. All you can do is consider

the options and choose the one that best suits the circumstances.
Whatever you choose, be consistent. Give everyone proper
titles, or call everyone by last names alone, or call them by their
positions in court; but do not switch from one convention to
another just for the sake of variety.
D. Avoid par enthetical aliases.

parenthetical
I NSTEAD OF THIS :
Hotstuff Chile Pepper, Ltd. (hereinafter called

Hotstuff ) seeks judgment for breach of a contract.
Hotstuff had agreed to(18 words)
DO THIS :
Hotstuff Chile Pepper, Ltd. (Hotstuff ) seeks

judgment for breach of a contract. Hotstuff had agreed
to(16 words)
OR BETTER YET, THIS :
Hotstuff Chile Pepper, Ltd. seeks judgment for breach

of a contract. Hotstuff had agreed to(15 words)
Sometimes the identity of parties can be easily inferred from
the facts. For example, there is no need to waste sentences
identifying a father and mother if this information can be easily
conveyed in telling the story.
I NSTEAD OF THIS :
The applicant is John Smith (hereinafter called the

father). The respondent is Cheryl Ellis (hereinafter
called the mother).
DO THIS :
John Smith and Cheryl Ellis have been trying for years
to agree on contact rights that would be satisfactory to
themselves and to their three daughters.
E. Use as ffew
ew wor
words as possib
ords le.
possible.
I NSTEAD OF THIS :
He underwent three evidential breath tests by means of

an evidential breath-testing device.
It is also necessary to make clear that Officer Rigby
accepted that there was no reason to stop the defendant
in the first place.
McFarland made the acquisition of three buildings.
DO THIS :
He took three breath tests.

Officer Rigby admitted there was no reason to stop the
defendant in the first place.
McFarland acquired three buildings.
F . Avoid the vverb

erb to be when it can be rreeplaced bbyy a
when
mor
moree specif ic vverb
specific erb
erb..
To apply this rule, you should memorize all the forms of the
verb to be which is the most irregular verb in English. It has
eight basic forms:
am, are, is
was, w er
eree
wer
be, being, been
This verb has legitimate uses, of course, but your writing will
be more forceful and more economical if you replace it with a
more specific verb lurking elsewhere in the sentence, disguised as
an adjective or an abstract noun.
I NSTEAD OF THIS :
Boeings contention is that those shares are worth $100

million.
Mr. Bledsoe has been resistant to the advice of her counsel.
The argument advanced by Stevens was that
DO THIS :
Boeing contends that those shares are worth $100 million.

Mr. Bledsoe has resisted the advice of her counsel.
Stevens argued that
G . Avoid it and ther e as dumm

there dummyy subjects.
It and there are considered dummy subjects (It was or
There were) where they stand in for words that might be the
real subjects of the sentence. Like the verb to be, dummy
subjects have their legitimate uses. Sometimes, however, they can
be replaced by a real subject and a stronger verb.
I NSTEAD OF THIS :
It was submitted by counsel for the plaintiff that the

extension was not qualified by the proviso.
DO THIS :
Plaintiff s counsel submitted that the extension was not

qualified by the proviso.
H. Avoid passi
passivv e vvoice
oice .
In passive voice, the grammatical subject receives the action (e.g.,
John was kissed by Mary), as opposed to the active voice, in
which the grammatical subject performs the action (e.g., Mary
kissed John). The passive voice has legitimate uses, but lawyers
tend to lapse into it unnecessarily when active voice would be
more direct and economical. Active voice is always more
economical and forceful.
I NSTEAD OF THIS :
No other evidence was called by the Defendants to give

support to the allegations.
DO THIS :
Defendants called no other evidence to support the

allegations.
I. Avoid using w or
wor ds with oovver
ords lapping meaning in the
erlapping
same sentence.
I NSTEAD OF THIS :
On appeal, appellant argues that

The building was round and circular in shape.
DO THIS :
Appellant argues that

The building was round.
J. If it goes without saying, let it go unsaid.

I NSTEAD OF THIS :
The parties agreed that this appeal comes before the

High Court pursuant to 26 of theTaxation Review
Authorities Act 1994 and Part XI of the High Court

Rules.
DO THIS :
(Just leave it out.)

If the parties had not agreed to this, it would have been
raised as an issue. Because it has not been raised as an issue, it
belongs among hundreds of other conceivable issues that might
have been concocted from the facts none of which need
mentioning.
I NSTEAD OF THIS :
A special meeting was called and held to reconsider the

resolution.
DO THIS :
A special meeting was held to reconsider the resolution.

Ordinarily, readers will presume that if a meeting has been
held, it must have been called. Only the exception to this
presumption an uncalled meeting, a surprise meeting, a secret
meeting would have to be signaled.
I NSTEAD OF THIS :
Mr. Justice LeDain, for the majority, considered the issue

of when the relevant provision took effect as well as how
the effect of the words was to be characterized. LeDain J.
held that the phrase whether or not he believes that she
is fourteen years of age or more defined one of the
constituent elements of the offence, the mens rea, at the
time of the offence, not at the time of the trial.
DO THIS :
LeDain J. held that the phrase whether or not he believes

that she is fourteen years of age or more defined one
of the constituent elements of the offence, the mens rea,
at the time of the offence, not at the time of the trial.
If Mr. Justice LeDain held that the phrase was relevant, it
would be safe to assume that he gave the issue some thought.
K. Avoid bbloc
loc
lockk quotations .
As readers, most judges and lawyers skip over block quotations,
hoping to glean their essence from what precedes or follows. As
writers, however, they seem to imagine that their readers will be
more patient than themselves, carefully examining what they
themselves would skip, searching for a nugget of authority buried
within a mound of dross.
The best way to avoid this problem is to trust your ability to
paraphrase. You, after all, have done the hard work. You have
read and deciphered the authority, and you have reached a
conclusion about its relevance to the issue at hand. Why make
your reader repeat that task? Just say what the passage means, in
your own words, instead of pasting the original passage in a form
the reader is sure to skip.
If you trust your ability to paraphrase and if you think
your reader trusts your ability you need not quote. On the
other hand, if you would like to provide your readers with the
original text for their convenience, just in case they might like to
check your paraphrase, then go ahead and quote it. But precede
the quoted material with your own paraphrase. The paraphrase
will assist your readers in deciphering what may be difficult
language, like Lord Diplocks in the passage below; and it will
ensure that readers who are inclined to skip the quoted material
will not miss the inference that you want them to draw from it.
I NSTEAD OF THIS :
All the authorities confirm the fundamental doctrine

stated by Diplock LJ in Freeman & Lockyer (A Firm) v.
Buckhurst Park Properties (Mangal) Limited [1964] 2
QB 480 at 503 in these terms:
An apparent or ostensible authorityis a legal
relationship between the principal and the contractor
created by a representation, made by the principal to the
contractor, intended to be and in fact acted upon by the
contractor, that the agent has authority to enter on behalf
of the principal into a contract of a kind within the scope
of the (apparent) authority so as to render the principal
liable to perform any obligations imposed upon him by
such contracts. To the relationship so created the agent is a
stranger. He need not be (although he generally is) aware
of the existence of the representation, but he must not
purport to make the agreement as principal himself. The
representation, when acted upon by the contractor by
entering into a contract with the agent, operates as an
estoppel, preventing the principal from asserting that he is
not bound by the contract. It is irrelevant whether the
agent had actual authority to enter into the contract.
DO THIS :
Normally, a company is not bound by contracts entered

upon by agents who have no authority to do so. However,
if someone represents himself or herself as an agent of a
company with authority to sign contracts for that
company, and if the company does anything that would
give the impression that the employee did in fact have
that authority, the company may be considered bound

by those contracts. (See Diplock LJ in Freeman &
Lockeyer (A Firm) v. Buckhurst Park Properties
(Mangal) Limited [1964] 2 QB 480 at 503.)
If your pleading or judgment includes paraphrases of more
than a few pages, consider attaching the original passages in an
appendix instead of in the main text. If your jurisdiction allows
you to file pleadings electronically, you might also use hyperlinks
to lead readers from the citation to the full text and back again.
L. Av oid quoting the cchar

har
hargge (unless the languag
languagee of
the charge is at stake).
The language of official charges or complaints is often clumsy
and antique. Normally there is no need to quote it, least of all at
the beginning of a judgment or pleading, where a short paraphrase
is all the reader needs. If you say that John Jones has been charged
with grand larceny, or that Mary Callahan is suing her employer
for hazardous conditions at work, you need not quote the charge
verbatim. Save the exact language for the body of the argument
if it is necessary to prove a point.
I NSTEAD OF THIS :
Erick Causewell is charged with two offences under the

Road Traffic Ordinance 1960 (hereafter referred to as
the Ordinance). Firstly, that at Eggerston on 8th May
1998 being the driver of a private car number 13646,
negligently drove that motor vehicle on Vaitele Street
and did thereby cause death to Kristi Posoli, contrary to
s.39A of the Ordinance. Secondly, that on the same day
and place, when driving the said vehicle, he was under
the influence of drink to such extent that he was incapable
of having proper control of the said vehicle, (hereafter

referred to as the drink and drive charge) contrary to
s.40(1) of the Ordinance.
DO THIS :
Erick Causewell is charged with negligent driving causing

death and with driving under the influence of alcohol.
The extra detail in the charge may be necessary in the
discussion of a particular issue, especially if the charge is defective
or the meaning of the language is at issue. But it is rarely necessary
in an opening paragraph. There all a reader needs is a generic
decription of who did what to whom just enough detail to
provide a context in which the issues will make sense.
M. Don
Dont put dates, times, or places in the judgment
just because they happen to be in the record.
On 21 January 1998, the wife commenced proceedings
under the Matrimonial Property Act in the Family Court
at Auckland. Various conferences and orders followed
and on 26 February 1999, the Court directed that the
matrimonial property application be set down for a
two-day hearing.
Specifics like these burden the reader for no purpose. Better not
to put them in unless they affect the resolution of the case.
I NSTEAD OF THIS :
The defendant was driving his private car a two-door

sedan registered number 13646.
DO THIS :
The defendant was driving his car.

Unless there is some question of identity to be settled by the

registration number, or some reason to distinguish a private car
from some other sort of car, these details should be omitted.
Details of this sort distract readers, who think for a moment
that they must be significant, or else they would not be there.
The court reporters job is to reproduce the record. The job
of the attorney and the judge is to interpret the record. By the
time you write the facts, you should have drawn some inference
from them. It is a mistake to deploy the evidence as if you were
a secretary recording minutes a blow by blow summary of what
one side said followed by what the other side said.
Your disposition of the facts, then, should be designed to
lead the reader to the same inference. In practical terms, this
requires distinguishing between essential facts facts that support
the inference you consider important and everything else in
the record.
N. Write shor
shortt sentences?
I put a question mark after this rule, because some of the finest
sentences in law and literature are long ones. A more accurate
rule would be, If you dont know how to write a good long
sentence, stick to short ones.
The problem with many legal sentences is not their length,
but their tangled syntax clauses and phrases jumbled like a
spilled box of toothpicks. The obvious solution is to break long
sentences into two or three short ones. It also helps to look for
suppressed narratives in long sentences. If the sentence contains
two or three events, try putting the events in short sentences
arranged chronologically.
I NSTEAD OF THIS :
The governments concern, lest the Act be held to be a

regulation of production or consumption rather than of
marketing, is attributable to a few dicta and decisions of
this court which might be understood to lay it down that
activities such as production, manufacturing, and
mining are strictly local and, except in special
circumstances which are not present here, cannot be
regulated under the commerce power because their effects
upon interstate commerce are, as a matter of law, only
indirect.
DO THIS :
In the past, this court has held that production,

manufacturing, and mining are local activities, which
are normally not subject to the commerce power. Now
the government is concerned that we will exempt
marketing from federal regulation, on the theory that it
is a local activity with only indirect effects on interstate
commerce.
O . Avoid ffaulty
aulty parallelism .
When you write a series of any kind, make sure the elements in
the series are parallel in form and content.
I NSTEAD OF THIS :
None of these cases involved patients who were terminally

ill, a process hidden from the public, involving secrecy,
lies, the destruction of evidence or the treating physician
acting alone.
DO THIS :
None of these cases involved patients who were terminally

ill. None of them involved secrecy, lies, a decision process
hidden from the public, or the destruction of evidence.
None of them involved a physician acting alone.
P. Avoid rredundant
edundant doub lets and triplets .
doublets
Some conventional doublets and triplets (e.g., Will and
Testament, give, bequeath, and devise) can be traced to historical
periods when English law was an unstable mixture of Old French,
Latin, and Anglo-Saxon. Lawyers back then were careful to cover
all bases. In modern usage, if the second and third words are
intended to signal a distinction, that distinction is likely to have
been lost in the annals of history.
INSTEAD OF THIS: DO THIS:
null and void void
ordered, ajudged, and decreed ordered
changed or altered (choose one)
rest, residue, or remainder (choose one)
III. I NVISIBLE E LEMENTS OF S TYLE
Punctuation and grammar are invisible elements of style. People

will never congratulate you for correct grammar, any more than
they would recommend a book for its flawless punctuation. But
make a mistake, even a trivial one, and the damage to your
credibility can be completely out of proportion to the error.
In some cases, punctuation and grammar are more than
cosmetic flaws. The rules, which are not nearly as absolute as one
might imagine, are often invoked to determine the precise meaning

of a clause in a contract, a statute, or a precedent the presumption
being that the judge or lawyer or legislator actually knew the
rules. Sometimes millions of dollars hang in the balance.
Sometimes, in fact, it is a matter of life and death.
Rule books about punctuation and grammar are too numerous
to mention. Some are more comprehensive than others, some are
easier to use than others, but they all agree about the essentials.
The important thing is to choose one or two favorites and keep
them close at hand when you write.
One frequently overlooked source is somewhat misleadingly
called, A Handbook of Style, which you can find at the back
of every Websters Collegiate Dictionary. It does not have a thumb
tab, so you have to check the Table of Contents at the front of
the dictionary to find it. Once you do, glance at it quickly just to
get a sense of what it covers. Then, when you have a punctuation
question, you will know where you can find an answer.
The American Heritage Dictionary has no comparable guide
to punctuation, but it does offer more explicit guidance in matters
of usage. If you worry about whether data should be singular or
plural, for example, or when you should use between as opposed
to among, this dictionary will let you know what its usage panel
prefers. A usage panel is no more scientific than a focus group,
but you might find its opinion worth considering when you have
no strong opinion of your own. Even more useful in these
matters, however, is A Dictionary of Modern American Usage,
now available in a much improved edition by Bryan Garner, who
is also the editor of the current edition of the indispensable Blacks
Law Dictionary.
In addition, every court system, law review, legal reporter,
publishing house, or newspaper may have its own set of rules or
its preferred rulebook. Consult these when you write for

publication.
There is no point repeating here the rules you already know:
begin every sentence with a capital letter, end it with a period or
question mark (you wont find many exclamation points in legal
writing), put quotation marks around quoted material. Everybody
knows these things. The rules below are intended to cover just
those situations that seem to be common problems for lawyers
and judges.
A. Don
Dont use commas unless yyou
ou need them.
This rule presumes that you know where you do need commas.
Ordinarily, commas are used in three situations:
1. To set off clauses or phrases tucked within a sentence.
Justice OConnor, in a passionate dissent, reviewed
the history of habeas corpus.
The defendant, who had twice escaped custody, was
escorted into the court with chains on his hands and
feet.
2. To set off clauses and phrases at the beginning or the end
of a sentence.
In a passionate dissent, Justice OConnor reviewed
the history of habeas corpus.
When the defendant entered the courtroom, the
jurors were startled to hear a chain rattling between
his feet.
At the date of separation no formal appraisal was
available, although the parties had some rough
estimates.
3. To separate independent clauses joined by and, or, but,

for.
The accident occurred in California, but the suit was
filed in Oklahoma.
The defendant rose slowly from his chair, and the
foreman intoned the verdict in a tone reeking of self-
satisfaction.
Competent editors disagree about whether you should put a
comma before and or or joining the last two elements in a series
of three or more.
The judgment was verbose, obscure, and just plain
wrong.
The judgment was verbose, obscure, and just plain
wrong.
I prefer the comma in this situation because it seems more
normal to me that is, I see it more often than not in what I
read. Both versions are defensible; it is a matter of personal
preference. But be consistent: dont switch randomly from one
convention to the other.
B. Put a pair of commas around clauses beginning with

w hic
whic h.
h.
hich.
The appraisal, which was filed at this hearing, indicated a
value of $13,000.
One comma is enough if the which clause occurs at the end of a
sentence.
The wife signed the agreement, which was then signed by
the husband.
C. Don
Dont confuse w hic
whic h with that.
hich that.
When you cannot put a comma before a which, you probably
should have written that.
The agreement satisfied all claims, which either party might
have against the other under the Matrimonial Property
Act. (WRONG)
Which is normally used to insert non-essential information
into a sentence. This is why which clauses are normally set off by
parenthetical commas. But because the final clause in the example
provides essential information, the comma should be omitted
and the which changed to that.
The agreement satisfied all claims that either party might
have against the other under the Matrimonial Property
Act. (RIGHT)
This may stike you as an obscure and pedantic rule, but in
some circumstances it affects the meaning of a sentence. Notice
the difference between the following two examples.
The appraisal, which was filed at this hearing, indicated a
value of $13,000.
The appraisal that was filed at this hearing indicated a
value of $13,000.
The first version implies that there was only one appraisal.
The second suggests that there may have been others.
D. Don
Dont put ellipsis dots at the be ginning of quoted
beginning
material.
According to the police officers report, the defendants
jeep would have been travelling at least 80kph.
(WRONG)
The ellipsis dots are unnecessary because the initial lower case
w in would indicates that words have been omitted at the
beginning of the quoted sentence.
According to the police officers report, the defendants
jeep would have been travelling at least 80kph.
(RIGHT)
E. Avoid misplaced modif iers .

modifiers
A modifier is misplaced if it seems to describe the wrong word.
The Constable, based on previous experience with the
defendant, felt it best to contain him in the vehicle.
(WRONG)
Based on the foregoing testimony I find that the defendant
intentionally concealed the marijuana. (WRONG)
These sentences suggest that the constable and the judge were
themselves somehow biased on what they observed.
F . Make sure subjects and verbs agree.

The limits of police powers to stop a vehicle on a road
are not entirely clear and has been debated for some time.
(WRONG)
The subject of has been in this example is limits. Every
competent speaker of English knows that limits has been is
wrong, but writers sometimes get confused when the subject and
the verb are separated, as they are in this case, by intervening
words.
The limits of police powers to stop a vehicle on a road
are not entirely clear and have been debated for some
time. (RIGHT)
G . Make sure the verb agrees with the subject, even if

it links a plural noun with a singular noun.
Defenses based on sovereign immunity has become a
vexed question. (WRONG)
Defenses based on sovereign immunity have become a
vexed question. (RIGHT)
If the correct version seems awkward to you, rephrase the sentence
entirely.
The courts have given mixed signals regarding sovereign
immunity.
H. Make sure objects are in the objective case.

The Master asked my learned opponent and I to submit
additional evidence. (WRONG)
Between you and I, there are no significant issues in this
case. (WRONG)
Linguists call this error hypercorrectness: trying too hard to
get it right a result, no doubt, of the unfortunate writers
having been corrected by schoolmarms and schoolmasters for
saying things like Mickey and me went to the movies.
The error normally occurs when there are words between the
verb or preposition and first person pronoun (I/me). The
solution is to remove the intervening words and trust your ear.
You wouldnt say, The Master asked I to submit additional
evidence. Nor would you say, Between I and you in any context.
So dont let the intervening words confuse you about the correct
form of the pronoun.
The Master asked my learned opponent and me to
submit additional evidence. (RIGHT)
Between you and me, there are no significant issues in

this case. (RIGHT)
I. Use possessives before gerunds .

A gerund is the -ing form or a verb used as a noun. (It is not to
be confused with a present participle, which is the -ing form
of a verb used as an adjective or part of a compound verb.)
This agreement was conditional upon the plaintiff
securing suitable premises in the North Mall in Ulster
Street Hamilton. (WRONG)
Constable Brew remained on the property despite the
defendant telling him to leave. (WRONG)
Officer Noble, almost as an afterthought, mentioned that
he felt the defendants driving warranted him being
stopped and spoken to. (WRONG)
This is a rule few people understand; but those who do will
take notice if you get it wrong. Notice that in the last example,
the writer gets it right at first (the defendants driving), but
then errs at the end (him being stopped).
This agreement was conditional upon the plaintiff s
securing suitable premises in the North Mall in Ulster
Street Hamilton. (RIGHT)
Constable Brew remained on the property despite the
defendants telling him to leave. (RIGHT)
Officer Noble, almost as an afterthought, mentioned that
he felt the defendants driving warranted his being
stopped and spoken to. (RIGHT)
If the correct version sounds awkward, rephrase the sentence
entirely.
Constable Brew remained on the property even though

the defendant had told him to leave.
J. Don
Dont split inf initi
initivves .
infiniti
An infinitive is the form of a verb preceded by to (e.g., to
file, to argue, to grant, to deny, etc.).
Was there a lawful basis to initially search the defendants
apartment? (WRONG)
This is a silly rule, but it has been around for so many centuries
that people are accustomed to seeing it observed. It is based on a
faulty analogy with Latin, in which infinitives consist of one
word instead of two, and are therefore impossible to split. If you
can avoid splitting an infinitive, you should do so rather than
risk distracting those few readers who would care.
Was there a lawful basis to search the defendants
apartment initially? (RIGHT)
When the correct version strikes you as awkward, rephrase
the sentence. Sometimes, however, you may choose to defy
convention and split an infinitive just because you prefer it that
way.
K. Don
Dont end sentences with pr
pree positions.
Prepositions are words that show relationships, including
relationships in time, space, or agency (e.g., by, for, with,
before, on, upon, etc.).
The rule against ending sentences with prepositions is also
based on a faulty analogy with Latin, and it occasionally does
violence to the natural idiom of English. In Latin and in languages
derived from Latin, prepositions are a group of words that just
dont make any sense unless they have a noun after them. Thats
why these words are called pre-positions.They must have another
word after them. You cant imagine a sentence ending with cum in
Latin any more than you could imagine one ending with avec in
French or con in Spanish.
But English is different from these other languages. It is
basically a Germanic language, and in Germanic languages, words
that sometimes behave like prepositions can, in fact, occur at the
end of a sentence, as illustrated in the following example, which
occurred in the highly respected New York Times Book Review:
One is Heidi Franklin, an art historian whom he observes
to be as homely as himself and whom he resolves to later
hit upon.
Even though it makes no sense to subject English to the
rules of foreign languages, the notion that we should imitate
Latin in this matter has been with us for so long (since the
eighteenth century) that many people accept it as sacred.
Violating this rule, then, is likely to distract people who happen
to know it.
At times, though, following the rule is more awkward than
violating it. Robert Stone, the author of the example above, could
have written the following sentence instead:
to be as homely as himself and upon whom he resolves
to later hit.
Thats a bit stilted and antique. Stone was right to follow the
natural inclinations of the English language and ignore the
artificial rule.
You may have noticed that Stone also splits an infinitive: to

later hit. So to be perfectly correct, he should have written this
sentence:
to be as homely as himself and upon whom he resolves
to hit later.
If you read this sentence aloud, you will probably agree that
the rules were broken with good reason. Still, it is good to know
the rules, so you can observe or break them by choice rather than
by accident.
IV
IV.. T ESTING FOR P LAIN E NGLISH
Give your best draft to a non-lawyer who knows nothing about

the case, and ask that reader to circle any words or phrases that she
or he has to read twice, along with any words or phrases that she
or he does not understand. Translate these words or phrases to
plain English if you can unless they belong to the handful of
exceptions that can be justified as terms of art. Do not defend
yourself by saying, Oh, lawyers would know what I mean. Thats
an excuse the best legal writers avoid. Law is not just for lawyers.
And even within the law, legal documents routinely find their
way to lawyers who may not be familiar with terms that seem
ordinary to those who are working within a specific subspecialty.
Proofreading normally requires a second pair of eyes. Give
your draft to someone who knows the rules. Give that person
free reign with a blue pencil the tool editors traditionally use to
repair faulty punctuation and grammar, and to banish words that
do not earn the space they occupy.
R ECOMMENDED R EADING :
Garner, Bryan A. A Dictionary of Modern American Usage.

New York: Oxford UP, 1998.
Goldfarb, Ronald L., and James C. Raymond. Clear
Understandings: A Guide to Legal Writing. New York:
Random House, 1983.
Lanham, Richard. Revising Prose. 4th ed.
Boston: Allyn and Bacon, 1999.
LeClerq, Terri. Expert Legal Writing.
Austin: University of Texas Press, 1995.
Mailhot, Louise, and James D. Carnwath. Decisions, Decisions
Cowansville (Qubec): Les ditions Yvon Blais, 1998.
Mellinkoff, David. The Language of the Law.
Boston: Little, Brown, 1962.
Legal Writing: Sense and Nonsense. New York: Scribner, 1982.
Procopiow, Norma. The Elements of Legal Prose.
Boston: Allyn and Bacon, 1999.
Raymond, James C. Writing (Is An Unnatural Act.)
New York: Harper, 1980.
Smith, George Rose. A Primer of Opinion Writing for Four
New Judges, 21 ARK. L. REV. 197 (1967).
Strunk, William, Jr., and E. B. White. The Elements of Style.
4th ed. Boston: Allyn and Bacon, 2000.
Wydick, Richard C. Plain English for Lawyers. 4th edition.
Durham: Carolina Academic Press, 1998.
Case Anal ysis and Le
Analysis Leggal Writing
Commissioner Myrna S. Feliciano
To be of any use,
the language of the law (like any other language),
must not only express, but convey thought.
David Mallingby
THE LANGUAGE OF THE LAW (1963)
Commissioner Myrna S. Feliciano of the National Commission

on the Role of Filipino Women (NCRFW) is also the Executive
Director of the Supreme Courts Mandatory Continuing Legal
Education (MCLE) Committee, the Chairperson of PHILJAs
Department of Legal Method and Research, and Professor at
the University of the Philippines (U.P.) College of Law. She
was also former Director of the U.P. Institute of Judicial
Administration. Indeed, she is well known in both legal and
judicial circles. Aside from a law degree, she also holds a degree
in Master of Library Science from the University of
Washington, and another Master of Laws degree from Harvard
University. She has been a Consultant to both governmental
and non-governmental agencies, foremost among which are the
Senate Policy and Studies Group of Congress, the Department
of Foreign Affairs Sub-Committee on Legal Issues, the
Committee on Legal and Political Issues of the National
Preparatory Committee for the World Conference on Women,
and to various projects on women and gender issues of the
United Nations.
I. INTRODUCTION .............................................................................. 188

II. BASIC CHARACTERISTICS OF JUDICIAL OPINIONS ............. 190
A. Judicial opinions reflect the principal activities
of courts in the legal system.
B. Unlike legislatures, courts must wait for litigants
to present disputes to them for decision, and
these disputes must be real ones.
C. Except in limited circumstances, courts must
decide cases within the scope of their
subject-matter jurisdiction.
D. The Philippine system of litigation is an adversary
one, and judicial opinions necessarily reflect the
parties positions and arguments.
E. Courts state the reasons for their decisions in their
opinions.
F. Judges state the facts of the case in their opinions.
G. When legislation does not govern a dispute,
courts will use the common law to resolve
the matter.
H. In their opinions, courts articulate general rules
that cover a class of disputes or situations.
I. Judicial decisions need not be unanimous.
J. Judicial opinionsvary in style, completeness,
accuracy, and clarity.
III. BRIEFING A CASE ........................................................................... 194
A. Parties, Their Relationship, and How the Matter
Reached This Court
B. Legal Theories (Cause/s of Action and Defense)
C. Facts
D. Relief Requested
E. Issues
2002] CASE ANALYSIS AND LEGAL WRITING 187
F. Holding/s and Disposition

G. Reasoning
H. Resulting Legal Rule/s
I. Dictum
IV. ANALOGIZING AND SYNTHESIZING ......................................... 197
A. Steps in Applying Analogy
B. Synthesizing
V. FORMULATING ARGUMENTS AND USING PERSUASIVE
WRITING TECHNIQUES ............................................................... 200
A. Types of Arguments
1. Logical
2. Emotional
3. Ethical
B. Basic Methods of Formulating Arguments
1. Standard Logical Technique
a. Inductive Reasoning
b. Deductive Reasoning
c. A Fortiori Argument
2. Handcuff Technique
3. Emphasizing the Purpose of a Rule
4. Paradigm Case
5. Hypothetical Cases
6. Extreme Consequences Technique
7. Policy Arguments
a. Lesser of Two Evils
b. Floodgates Arguments
i. Difficulty of Circumscribing
the Area of Liability
ii. Fraudulent Claims
iii. Unlimited Liability
iv. Burden on the Courts
c. Economic and Social Policy Arguments

i. Distribution of Costs
ii. Who Can Avoid the Costs Most Cheaply?
iii. Economic Efficiency
VI. CASE RESOLUTION ................................................................... 209
A. Findings of Facts
B. Factors to Consider in Burden of Proof
D. Statement of the Law
E. Dispositive Portion
VII. RULES IN LEGAL WRITING ................................................... 215
A. Use words in their literal sense.
B. Omit archaic legalisms.
C. Use the same words to refer to the same thing;
use different words to refer to different things.
D. Use simple, familiar words.
E. Use concrete rather than abstract words.
F. Use words that are consistent in tone.
G. Avoid equivocations.
H. Use unqualified nouns, adjectives and verbs.
I. Avoid jargon from other fields.
J. Watch out for redundancy in legal writing.
VIII. CONCLUSION .............................................................................. 222
I. I NTRODUCTION
NTRODUCTION
The most basic function of lawyers is solving legal problems.

The problems with which lawyers must deal are infinitely varied.
Many of these problems are subsumed in a category requiring
a reliable prediction of the probable consequences of a particular
state of affairs. As Professor Marjorie D. Rombauer puts it,
reliable prediction requires identification of five (5) problem

elements1 (not necessarily in the order given):
1. Raw facts;
2. The law which may possibly control;
3. Legal question/s;
4. Legally significant facts; and
5. The law which will probably control.
The raw facts are given in the problem at hand and presented
for resolution, while the law which may possibly control is found
in the legal research procedure. In the search for the law in the
broader sense, one also looks for precedents. These are decisions
in individual cases which may serve as authority for decisions in
future cases. Under our legal system, the courts will stand by
these decisions and will not disturb settled points.2 This is the
doctrine of stare decisis.
There are several justifications for using stare decisis in
our jurisdiction:
1. It encourages even-handed treatment of those who come
before the courts;
2. It saves time and energy because the courts do not have
to hear the same arguments on a point over and over
again;
3. By contributing to the predictability of the law, it
facilitates planning by private parties and encourages
settlement of disputes;
1. Legal Problem Solving 1 (1973).

2. Blacks Law Dictionary 1261 (5th ed., 1979).
4. It provides a certain degree of protection from capricious

or arbitrary judicial rulings; and
5. It helps maintain public faith in the Judiciary.3
Nevertheless, the Philippine Supreme Court recognizes that
stare decisis does not require that clear error be continued,
especially if such is inconsistent with subsequent developments
like constitutional amendments or new legislation.
One important aspect of the doctrine of stare decisis is that
judicial decisions do not have the same weight of authority. Some
decisions are binding or mandatory while others are, at most,
persuasive. Recognizing the difference between mandatory and
persuasive precedents is critical to legal writing. In our court
system, decisions of trial courts, or inferior appellate tribunals,
do not make binding precedents. Under the stare decisis doctrine,
inferior courts have a duty to adhere to the decisions of the
Supreme Court until those decisions have been overruled or
altered by legislation.
II. B ASIC C HARA CTERISTICS

HARACTERISTICS
OF J UDICIAL O PINIONS
In considering the nature of decisions from a broader perspective,

Professor Larry L. Teply notes that the following are basic
characteristics of judicial opinions that should be recognized and
remembered:4
3. L.L. Teply, Legal Writing and Oral Arguments 156 (1990)

citing the case of Morgana v. U.S. Marine Lines, 398 U.S. 375,
403-5 (1970).
4. L.L. Teply, supra note 3 at 103-5.
A. Judicial opinions rrefef lect the principal acti

eflect vities of
activities
cour ts in the le
courts leggal system.
Courts review the validity of legislative enactments, interpret
their meaning, and determine their application. They perform a
similar function with respect to administrative and executive
actions. Courts also develop and enforce the unwritten common
law through their decisions, and maintain the procedural and
administrative integrity of the judicial system through their orders,
rules, and regulations. It is one or more of these matters with
which judicial opinions will be concerned.
B. Unlik
Unlikee le gislatur
legislatur es, cour
gislatures, ts must w
courts ait ffor
wait or litig ants
litigants
to present disputes to them for decision, and these
disputes must be real ones.
Judicial opinions are based on actual controversies, not
hypothetical situations that may or may not arise. Furthermore,
the courts must wait for the litigants to present these controversies
for decision.
C. Ex ce
Exce pt in limited cir
cept cumstances, cour
circumstances, ts must decide
courts
cases within the scope of their subject-matter
jurisdiction.
Subject-matter jurisdiction (a courts authority to hear certain
types of cases) is determined by constitutional and statutory
provisions. Judges cannot avoid deciding cases within their
jurisdiction because the issues are too controversial or difficult.
Occasionally, however, judges will devote a judicial opinion to
explaining why they are refusing to decide a matter. The most
common reasons include mootness, ripeness, and political
questions.
D. The Philippine system of litigation is an adversary

one, and judicial opinions necessarily reflect the
par ties' positions and ar
parties' guments.
arguments.
Courts refer frequently to the parties contentions in the text
of opinions, and sometimes reporters will summarize the
parties arguments. The parties briefs are often available
separately. Clearly, knowing what each party argued enhances
ones understanding of the opinion. However, failure to
distinguish between what a party has asserted and what the
court has decided frequently confuses the reader of judicial
opinions.
E. Cour ts state the rreasons

Courts easons ffor
or their decisions in their
opinions.
In their opinions, courts usually state the reasons for their
decisions. This practice forces a court to carefully consider
its decision and to inform the parties why it decided the case
the way it did. This practice also assists others in predicting
how the court may rule in similar situations in the future.
Thus, in reading judicial opinions, significant emphasis
should be placed on the reasoning articulated by the court.
F . Judg es state the ffacts

udges acts of the case in their
opinions.
Judicial opinions ordinarily state in detail the facts of the
case. Such statements ordinarily go beyond those facts that
might be viewed as strictly relevant to the stated bases for
the decision. These detailed factual statements play an
important role in the process of growth and change in the
law.
G . W hen le gislation do
legislation es not ggoover
does ernn a dispute, cour ts
courts
will use the common law to resolve the matter.
The early English courts developed the Common Law by
applying principles of justice, reason, and common sense to the
particular situations presented for decision, which were also the
sources of the American Common Law. Over time, American
courts developed and modified this body of law, which was then
applied to meet Philippine conditions and circumstances. Article
8 of the Civil Code provides that:
Judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the
Philippines.
This is reinforced by the provision that:
No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.5
H. In their opinions, cour ts ar

courts ticulate ggeneral
articulate eneral rrules
ules that
co
covver a cclass
lass of disputes or situations.
The courts usually articulate general rules that cover a class of
disputes or situations in their opinions. In this way, judicial
opinions are important sources of legal rules that order society
and regulate human behavior. However, remember that over time,
courts may find that they have stated a rule too broadly or too
narrowly, or that exceptions should displace the rule.
I. Judicial decisions need not be unanimous.

Judges do not always agree. In deciding a case, the opinion of the
majority of the court determines the outcome. Concurring and
5. Civil Code, Art. 9.

dissenting opinions may be filed. These opinions are often useful

for understanding the rationale of the majority of the court.
J. Judicial opinions vvar ar

aryy in style, completeness, accurac
accuracyy,
and cclarity
larity
larity..
In your research, it is necessary to take the time out to find the
important rulings which are applicable to your problem under
consideration.
III. B RIEFING A C ASE
Why is there a need to brief cases? The reason for briefing cases
is that you will understand and remember them better than if
you merely read them. This will also facilitate the organization of
memorandum of law or appellate brief, as well as oral arguments
before a court. Briefing involves three steps:
1. Carefully reading an opinion;
2. Selecting data from the plethora that the opinion contains;
and
3. Inserting the data in an outline. Professor Gertrude Block
suggests the following nine-point outline for briefing
cases:6
A. Par ties, T heir R

arties, elationship
elationship,, and Ho
Relationship Howw the Matter
Reac hed T his Cour
eached Courtt
The names of the parties usually appear in the caption at the
beginning of the opinion. Their relationship also appear there,
the plaintiff/s first, followed by the defendant/s after the v.
(for versus). When multiple parties are involved, list only the
6. Effective Legal Writing 94-96 (1988).

last name of the first litigant on each side. These are the names
that appear in the body of the opinion. Even in captions reading,
In re... or In the Matter of..., there are at least two opposing
parties, and their names should appear in your brief. In this section
of your brief, indicate as well the status of each party, e.g.,
employer and employee, appellant and appellee,
petitioner and respondent.
In how the matter reached this court, briefly note any prior
proceedings and explain why this court is now involved. Most of
the cases you will brief are appellate court cases and their previous
history should appear at the beginning of the opinion.
B. Le (Cause// s of Action and Def

Leggal T heories (Cause ense)
Defense)
These are the legal rules that form the basis of the plaintiff s
claim. The plaintiff always advances one or more legal theories in
order to obtain his desired objective. The defendant may also
advance one or more legal theories if, instead of merely denying
the validity of the plaintiff's cause of action, he raises a separate
claim (an affirmative defense), called a counterclaim.
C. Facts
The fact section of your brief contains a succinct summary of
the salient information, often called key facts, of the opinion.
Key facts are those facts upon which the court based its holding,
and most importantly, those facts that could not be omitted or
altered without changing the decision.
D. Relief Requested
Requested
The plaintiff states here what he hopes to achieve by going to
court, i.e., his remedy. In some cases, the relief requested is in
the form of money.
E. Issues
Issues are the precise legal questions that must be resolved by the
court in order to reach its decision in the case under consideration.
Often the issues are expressly stated in the opinion. If not, such
can be identified by reading the courts holding and the reasons
given to support it. The complete issue is the rule of law applied
to the key facts of the case at hand.
Holding// s and Disposition

F. Holding
The holding is stated as the courts affirmative or negative response
to the issue. In its entirety, it contains the rule of law that was
applied and the key facts of the case. In your own briefs of case
opinions, however, you will probably include only a short answer
to the issue (i.e., yes or no) because you have already completely
stated the rule of law and the key facts in the issue statement.
The disposition is whatever the court says it will do
procedurally as a result of its holding. Stated in a few words, it
usually comes at the end of the opinion (e.g., vacated and
remanded).
G . Reasoning
In its reasoning, the court justifies its holding on each issue. When
the case presents more than one issue, the court may intermingle
the reasoning behind its holding on several issues, but it should
still separate the courts statements and the reasoning applied to
each issue. To identify the reasoning of the court, look for its
reasons for agreeing with one party and disagreeing with the other,
for accepting some legal precedents and rejecting others, and for
extending or limiting other courts opinions. Also look for the
courts citation of enacted law and its interpretation of the intent
of that law.
H. Resulting Le
Leggal Rule// s
ule
Rule
The legal rule is a broad statement of principle developed by or
applied in this decision. The rule may then become precedent for
analogous cases in future decisions. Few decisions enunciate a
new legal rule; many cite a rule previously developed and applied
in the case at hand. This item and that which follows, dictum,
are often omitted from briefs. However, they are helpful in placing
the case under consideration into perspective, with respect to cases
that have preceded or will follow it.
I. Dictum
Dictum (the plural of which is dicta) is an official, but incidental
and gratuitous, language that is unnecessary to the decision of
the case under consideration. Since courts are supposed to reach
decisions only on the narrow questions before them, decisions
theoretically should not contain dicta, but they sometimes do.
Dictum can be recognized as any statement a court makes based
on facts other than those presented in the controversy, or any
conclusion a court reaches based upon law that is not applicable
to the controversy. Dictum should be identified because courts
may agree later with the view expressed as such, although it is not
binding on subsequent court decisions any more than the
minority decision.
IV
IV.. A NAL OGIZING
ALOGIZING AND S YNTHESIZING
Analogizing cases involves selecting information from your

case briefs and applying it to other cases or fact situations in order
to make predictions about the decision a court will reach, at the
same time considering new facts presented by the problem at
hand.
A. Ste ps in A
Steps ppl
Appl ying Analog
pplying Analogyy
Analogizing, or pointing out similarities and differences among
cases, is the primary form of legal reasoning. It is of great
importance to legal arguments because of the doctrine of stare
decisis which rests upon the presumption that justice requires
the law to treat persons similarly in similar circumstances.
You will rely on precedent when you compare your case or
fact situation to earlier cases or fact situations. You cannot apply
precedent to the facts of your case, however, unless:
1. Your case is analogous in significant respects to the case
you are comparing it with; and
2. The opinion in the earlier case is either binding upon
your case or persuasive to it.
A case is considered analogous to a previous case if its key
facts and the rule of law to be applied are similar. Conversely, if
either the key facts or the applicable rule of law is different, then
the case can be distinguished from the preceding case and the
doctrine of precedent will not apply.
To apply analogy, there are four (4) steps to be followed:
1. Compare and contrast the key facts of the precedent cases
with your facts;
2. If the key facts are similar, extract from the earlier cases
the legal principle/s upon which these cases were decided;
3. Apply these principles to your case;
4. Arrive at a conclusion based upon the application of
those principles to your case.7
7. G. Block, supra note 7 at 125-6.

B. Synthesizing 8
A case synthesis is a summary of two or more cases, describing
their similarities and differences. Through synthesis, it can be
discovered why appellate courts sometimes reach similar
conclusions in cases with seemingly different facts, as well as
different conclusions in seemingly similar cases. Case syntheses
also illustrate how legal rules are expanded, narrowed, or abandoned
by court opinions.
In writing a case synthesis:
I. Make an introductory statement broad enough to include
all of the cases you are comparing, but narrow enough to
exclude other cases.
2. Show, by analyzing your briefs of the cases, how the cases
resemble each other and how they differ. (That is,
analogize and distinguish the cases.) In your analysis,
discuss the following:
a. Causes of action;
b. Issues raised;
c. Holdings of the courts;
d. Rule/s formulated, applied, expanded, narrowed,
or overturned; and
e. Reasoning of the courts.
3. Come to some conclusion/s as a result of your analysis.
For example, what legal rule/s would result from these
decisions? What trend do the decisions indicate? Can you
predict the outcome of similar cases? (That is, will the
8. Taken from G. Block, supra note 7 at 93-4, 134.

legal rule be retained intact, expanded, narrowed, or

abandoned in subsequent cases?)
V. F ORMULA TING A RGUMENTS AND

ORMULATING
U SING P ERSU ASIVE W RITING T ECHNIQ
ERSUASIVE UES
ECHNIQUES
Persuasion is one of the important skills used by lawyers. It is

used in memoranda in support of motions, position papers, trial
and appellate briefs, and settlement proposals and letters.
A. Types of Ar guments 9
Arguments
According to Professor Teply, persuasive writing in law practice is
ordinarily a blend of three types of arguments:
1. Logical
Persuasive legal writing uses logical arguments principally
deductive reasoning and analogy. These arguments most often
rely on the authority of prior decisions or the application of
statutes.
2. Emotional
Persuasive legal writing uses, in part, emotional arguments
principally fairness and bias. Courts are sensitive to appeals
contending that the application of the letter of the law may
result in unfairness. Usually, judges are receptive to resolutions
that avoid harsh or undesirable results. Moreover, lawyers have
traditionally argued in subtle ways for positions that aid the poor,
the feeble, the oppressed, and the suffering. Arguments based on
9. L.L. Teply, supra note 3 at 304.

such biases, however, are to be distinguished from appeals to

prejudice.10
3. Ethical
Persuasive writing in law uses, in part, ethical arguments
principally the honesty, good faith and straightforwardness of
the attorney and his client. This type of argument is achieved by:
a. Appearing to present arguments in a fair, well-balanced
and reasonable manner by not inserting too much emotion
into the presentation; and
b. Carefully characterizing the clients action in a favorable
manner.11
If appropriate, the dishonesty, unreasonableness, duplicity,
or morally reprehensible conduct of opposing counsel or party
can be carefully mentioned. This type of appeal most significantly
affects the tone of the presentation.
B. Basic Methods of FFor

or mulating Ar
ormulating guments 12
Arguments
Lawyers use several basic methods of formulating arguments that
include:
1. Standar
Standardd Logical Tec hnique
echnique
Of the standard logical techniques, inductive reasoning, deductive
reasoning, and a fortiori argument are the most often used
approaches.
10. R. Aronson & D. Weckstein, Professional Responsibility 300

(1980).
11. L. Squires & M. Rombauer, Legal Writing, 196-97 (1982).
12. Taken from L.L. Teply, supra note 3 at 310-11, 315-20.
a. Inducti
Inductivve Reasoning
Reasoning
When the ratio decidendi of a judicial decision that a lawyer
wants to assert is not specifically or clearly stated in a courts
opinion, a lawyer must formulate it. Even when the legal
proposition has been stated, the lawyer may want to
reformulate it in light of other decisions. This formulation
or reformulation process often involves inductive reasoning.
Thus, a lawyer might analyze the facts of several cases
that, when viewed together, form the basis for a proposition
that had not been articulated before. This process of analysis,
as we have seen, is aided by the use of analogy.
Use inductive reasoning to formulate or generalize a legal
proposition from a series of particular holdings or applications.
b. Deducti
Deductivve Reasoning
Reasoning
Deduction starts with a major premise, such as a legal doctrine
that is accepted as true.The minor premise places the particular
situation or case within the class or terms described by the
major premise (usually a factual statement of the case at hand).
Lawyers often assert a ratio decidendi of a judicial decision
or proposition based upon a statute as the major premise of
a syllogism.
A proposition derived through inductive reasoning can
be the major premise in a deductive argument.
The facts of the case argued by lawyers form the minor
premise. The conclusion is then, supposedly, apparent.
As previously noted, the debate usually centers on
whether the facts of the current case are as the lawyer asserts
them to be and whether these facts have been properly
classified.
c. A FFor
or tiori Ar
ortiori gument
Argument
Another standard logical technique used in persuasive legal
writing is the a fortiori argument. Such an argument is
to the effect that because one ascertained fact exists, therefore,
another, which is included in it, or analogous to it, and
which is less improbable, unusual, or surprising, must also
exist.13
Use a fortiori reasoning to draw a conclusion that is
inferred to be even more certain than another.
2. Handcuf
Handcufff Tec hnique
echnique
The handcuff technique uses a logical chain of propositions
emanating from a simple general proposition or premise that the
reader would not readily dispute. Often, the premise is relatively
abstract in nature.
An example of a simple starting proposition for the defendant
is: The law of negligence is based on fault. From this
proposition, the defendants lawyer could lead the reader to the
following conclusion: Because the defendants mental illness was
sudden and unexpected (and, thus, not the defendants fault), the
defendant was not negligent.
3. Emphasizing the Pur pose of a R

Purpose ule
Rule
In considering the potential application of a rule, particularly a
statutory rule, conclusions are often reached based on the purpose
of the rule.
Assume that a statute provides that no vehicle may be
brought into the park. When someone tries to drive a tank into
the park, the statute applies without doubt. A tank is commonly
13. Blacks Law Dictionary 56 (5th ed. 1981).
understood to be a vehicle. But what about a boy riding a bicycle?

Is a bicycle a vehicle for purposes of the statute? If the purposes
of the statute are to maintain peace and order within the park,
certainly a boy riding a bicycle is not violating this purpose.
Legal rules are not self-executing. A good way to determine
how a rule should be applied is to examine the purpose/s of that
rule.
4. Paradigm Case
Another accepted means of formulating legal arguments is to use
the paradigm case. A paradigm is an outstandingly clear or typical
example. Use the paradigm (along with decided cases) for
comparison.
Assume that the application of a statute is in issue. For
purposes of developing an argument, a lawyer may present a case
which he asserts is covered by a statute without regard to
whatever else may also be covered by the statute. The lawyer then
asserts that the instant case is or is not significantly different
from the paradigm case.
In some instances, the paradigm may be a hypothetical
situation, perhaps derived from the legislative history of the statute
or the apparent purpose of the enactment. In other instances, the
paradigm may be derived from a prior judicial decision applying
the statute. In theory, the court should decide the instant case
different from that of decided cases and from the paradigm cases
under statutes only if it can point to a significant difference
between the instant case and each of the decided cases and paradigm
cases.14
14. Citing Christie, Objectivity in the Law, 78 YALE LJ. 1131,
1134 (1969).
5. Hypothetical Cases
Closely related to arguments based upon the paradigm cases is
using hypothetical cases for the purpose of comparison. A
hypothetical case is one in which facts are assumed for the purpose
of explaining and discussing the applicable law.
Christie explains the use of hypothetical cases as follows:
In deciding the case before it, the court may also refer to
hypothetical cases posed by the parties or by the court
itself. The consideration of hypothetical cases is an
important adjunct to the use of the paradigm case for
hypothetical cases are of material assistance in establishing
the relation of the instant case to the prior cases and to the
paradigm cases. To be pertinent, a hypothetical case must
be one not significantly different from the instant case. A
court which has constructed or which is referred to such a
hypothetical case must then determine whether the
hypothetical case is itself significantly different from the
prior cases and the pertinent paradigm cases. For the court
to decide the instant case in a particular way, not only the
instant case, but also all pertinent hypothetical cases, must
be significantly different from the prior cases and the
paradigm cases pointing to a contrary result. Only then can
it be said that the instant case is truly significantly different
from these cases and not just apparently significantly
different.
The use of hypothetical cases thus broadens the scope of a
courts inquiry and helps it to deal with the body of law
which it is administering. Hypothetical cases, for example,
help a judge to appreciate the reach of his decision by
indicating the extent to which, in deciding the instant case,
he is committing himself to decide future cases in a
particular way. Similarly, hypothetical cases are a bridge
between the instant case and previously decided cases whose
relevance to the instant case the judge has not initially

appreciated. In this way, hypothetical cases broaden his
understanding of existing legal materials and help him to
comprehend more fully their restraining influence on the
choices available to him in the instant case. At the same
time, this approach requires that hypothetical cases
themselves pass the significant difference test and thereby
prevent their use from degenerating into a ludicrous and
improper reductio ad absurdum, the so-called parade of
horrors which law students are quite properly told to
avoid.15
The best approach to attacking a hypothetical case is to show
that it is significantly different from the case at hand.
6. Extr eme Consequences Tec

Extreme hnique
echnique
The extreme consequences technique demonstrates the potential
adverse effects of a rule. Hypothetical cases are usually directed
to possible applications of a rule. The extreme consequences
technique focuses on the effects of a rule its costs, disruption,
and potential harm.
To counter an extreme consequences argument, consider
carefully whether the asserted consequences are likely to occur.
Watch also for improper reductio ad absurdum in the guise of
legitimate use of the extreme consequences technique.
7. Polic
olicyy Ar guments
Arguments
Policy arguments can be critical to the outcome of cases in which
conflicting legal rules may be applicable.
Sometimes a court is faced with two or more rules that could
apply plausibly to a situation before it. In addition to using
15. Christie, supra note 16, at 1336-37.
precedent, legislative history, hypotheticals, and the like, a lawyer

will often attempt to bolster the argument in favor of a particular
rule by using policy arguments. This subsection considers the
various types of policy argument.
a. Lesser of Two Evils

Sometimes none of the solutions available in a case offers a
particularly satisfactory resolution of the matter. In that
situation, an argument can be made that a solution should be
chosen because it is the lesser of two evils.
b. Floodgates Arguments
In deciding whether a particular rule should be adopted,
several variants of a floodgates argument are sometimes made.
Floodgates arguments generally focus on the expected
subsequent adverse consequences of an initial decision (if
made in a certain way).
i. Difficulty of Circumscribing the Area of

Liability
One form of a floodgate argument is that there is no
rational way to confine liability within reasonable limits.
ii. Fraudulent Claims

Another type of floodgates argument relates to a
potentially dramatic increase of fraudulent claims.
iii. Unlimited Liability

The problem of unlimited liability is another type of
floodgates argument.
i v . Bur den on the Cour

Burden ts
Courts
Sometimes the floodgates argument is specifically focused
on the burden that increased litigation would place on
the courts. This type of argument seems to be more
frequently accepted in federal courts.
c. Economic and Social Polic

olicyy Ar
Polic guments
Arguments
i. Distribution of Costs
When the proper rule is in doubt, a variety of economic
arguments can often be made. One approach is to consider
the distribution of costs.
ii. W ho Can A
Avvoid the Costs Most Cheapl y?
Cheaply?
This argument focuses on who can avoid the costs most
cheaply. It is unusual for a court to be this directly
articulate about cost efficiency. The underlying policy
argument, however, is one that can be used effectively.
iii. Economic Efficiency

Economic efficiency is another policy argument that may
be used in support of, or against, a particular rule. Such
arguments may arise in a variety of contexts. For example,
in contract law, it is argued that:
Repudiation of obligations should be encouraged where
the promisor is able to profit from his default after placing
his promisee in as good a position as he would have occupied
had performance been rendered To penalize such
adjustments through over compensation of the innocent
party is to discourage efficient reallocation of community
resources.
Another aspect of economic efficiency sometimes

considered is transaction costs.
VI. C ASE R ESOLUTION
The requirements of form and content of a resolution is more

or less the same as that of a decision rendered by a judge or an
administrative officer. Section 14, Article VIII of the 1987
Constitution provides that:
No decision shall be rendered by any court without
The purpose of this requirement is to inform the person
reading the decision, especially the parties, of how it was reached
by the court after consideration of the pertinent facts and
examination of the applicable laws.16 A similar provision is found
in Section 1, Rule 36 of the Rules of Court. Thus, in the form
of the decision or resolution, matter should dominate manner,
i.e., the reader should be left with the thought that the arguments
are complete and convincing. However, the essence of effective
legal writing is communication that should be brief, accurate and
clear.
The traditional part of a decision consists of four parts:
1. Nature of the case if a decision is involved or the issue
to be presented if an order is involved;
2. Findings of fact;
3. Applicable law; and
4. Dispositive ruling.
16. Francisco v. Permskul, G.R. No. 81006, May 12, 1989.

A. Findings of Facts
The former Justice Ricardo Puno identifies the following forms
in narrating the findings of facts:
In regard to facts, we have two basic types of
narration: the reportorial type and the synthesis.
A cross between the reportorial type and the synthesis is
the semi-reportorial type. The reportorial type is
the easiest to handle. As the term indicates, it is
nothing more than a report of what happened during
your trial. It usually consists of a summation of what
the witnesses testified to. It is a stereotype kind of
narration.
You begin in a criminal case, for instance, with the
usual opening: The accused stands charged with the
crime of bigamy allegedly committed as follows: Then
you copy the information. The prosecution presented
witnesses A, B, C, D and E. A, testified as follows:
Then you just narrate everything that he testified to.
B, testified as follows: Narrate everything that B said.
After the parage of prosecution witnesses, then you
shift to the defense: On the part of the accused, he
presented three witnesses, namely, X, Y and Z. X, testified
as follows: After summarizing all these testimonies,
you make a brief summation of what you consider as
the correct version.
xxx
In the synthesis type of decision-making, the judge
summarizes the factual theory of the plaintiff or
prosecution, as the case may be, and after that the version
of the defense. After summarizing both versions, the judge
will state which version he takes as true and correct, and
then renders the adjudication.
In the semi-reportorial type, the judge summarizes the

version that he accepts, and then reports on the version
that he rejects.
There is a fourth type which is a sub-classification of the
synthesized decision. In this last type, the court just
summarizes the version that it accepts and adopts, without
at all narrating or explaining what the other version is.
After the summation of that particular accepted version,
then the judge renders his decision.17
B. Factors to Consider in Burden of Proof

In deciding cases, there are certain standards which must be met.
In civil cases, the party having the burden of proof must establish
his case by a preponderance of evidence.18 In a criminal case, the
defendant is entitled to an acquittal, unless his guilt is shown
beyond reasonable doubt. 19 In determining where the
preponderance of evidence lies, the court may consider the
following:
1. All the facts and circumstances of the case;
2. The witnesses manner of testifying;
3. Their intelligence;
4. Their means and opportunity of knowing the facts to
which they are testifying;
5. The nature of the facts to which they are testifying;
6. The probability or improbability of their testimony;
17. Cited by Justice Reynato S. Puno in his Lecture on Decision

Writing.
18. Rules of Court, Rule 133, Sec. 1.
19. Rules of Court, Rule 133, Sec. 2.
7. Their interest or want of interest;

8. Their personal credibility so far as the same may
legitimately appear upon the trial; and
9. The number of witnesses, though the preponderance is
not necessarily with the greatest number.20
In an administrative determination of contested cases, which
are judicial by their nature, there is no requirement for strict
adherence to technical rules since the atmosphere is one of
expeditiousness and as restricted by technical or formal rules of
evidence. Nevertheless, it is essential that due process be observed,
for requirements of fair play are not applicable in judicial
proceedings only.21
In the judicial review of decisions of administrative agencies,
the Supreme Court uses the substantial evidence rule which means
more than a scintilla or relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other
minds equally reasonable might opine otherwise.22

Justice Reynato Puno mentions several techniques used by judges
in the difficult task of weighing evidence:
20. Rules of Court, Rule 133, Sec. 1; People v. Maisug, G.R. No.
L-22187, March 28,1969, 27 SCRA 742 (1969).
21. C.L. Lopez, Philippine Administrative Law 64 (1994); See
Ang Tibay v. Court of Industrial Relations, 69 Phil. 642 (1940)
for rules in administrative due process.
22. Lansang v. Garcia, G.R. No. 33964, December 11,1971,
42 SCRA 480 (1971).
1. The uncontroverted facts must be separated. They come from

the pleadings, pre-trial proceedings, and evidence during the
trial in the forms of admission, uncontradicted allegations,
clear implications, etc. These uncontroverted facts are helpful
to measure the truth or falsity of other evidence.
2. In interpreting the testimony of a witness, his whole testimony

must be considered, i.e., his direct cross examination, redirect
and recross. The truth in testimony cannot be distilled in a
chopped fashion.
3. Self-contradictions by a witness usually happen. In assessing

self- contradictions, the judge should determine whether they
are due to innocent mistakes or deliberate falsehood. Innocent
mistakes usually cover minor details. If the self-contradictions
are innocent, then these should be disregarded. If deliberate,
then these should be counted against the witness.
4. Contradictions between witnesses also commonly occur.

Initially, the judge should try to reconcile them. If they cannot
be reconciled, the judge has to make a choice as to which
testimony to adopt as true and reject as false. To guide him in
his choice, he has to consider the character of the witness, his
ability and willingness to speak the truth, his means of
knowledge, motives, manner and demeanor, the consistency
or inconsistency as well as the probability or improbability
of his statements.
5. Contradictions between testimony on the witness stand and

prior affidavit are also common. If they are irreconcilable,
affidavits should normally prevail. Oral testimony is often
unreliable due to passage of time.
6. Testimony that is inherently improbable must be rejected. To

be credible, evidence must coincide with the common
experience of mankind.
7. Demeanor of witness is an important factor to be considered

in weighing his testimony.23
D. Statement of the La
Laww
How do you discuss the applicable law in your decision? Again,
there is no hard and fast rule. If the applicable law is clear, then its
simple recitation will suffice. Its further explanation will more
often than not be a mere exercise in redundancy. One legal writer
said:
It seems that reverence for citation is the greatest handicap
of lawyers and judges. We delight in cumulative authority.
We think that one citation is not enough if we can cite
twenty, even though the proposition is obvious enough to
require no citation at all. x x x It will suffice to cite one
case if it is controlling, along with a reference to a reliable
text or encyclopedia.
However, if the applicability of the law is arguable, then
you have to justify your choice of law. Your discussion may
take quite a length. You may have to go through its history. You
may have to summon analogous rulings even of foreign courts.
You may have to invoke abstract concepts of justice and equity.
In any event, this is where you have to display your legal
scholarship. Always remember that substance should not be
sacrificed for style.
23. Lecture on Decision Making 12-13 (1994).

E. Dispositi
Dispositivv e P or
Por tion
ortion
The dispositive ruling must be complete. This is the test of
completeness:
1. The parties know their rights and obligations.
2. The parties should know how to execute the decision
under alternative contingencies.
3. There should be no need for further proceedings.
4. It terminates the case by according the proper relief.
The proper relief usually depends upon what the
parties asked for. It may be merely declaratory of rights,
or it may command perfor mance of positive
prestations, or order the party to abstain from specific
costs.
5. It must adjudicate costs.
Thus, the judgment of a case is what is contained in the
dispositive portion. The general rule is where there is a conflict
between the dispositive part and the opinion, the former must
prevail over the latter on the theory that the dispositive portion
is the final order while the opinion is merely a statement ordering
nothing.24
VII. R ULES IN L EGAL W RITING
Basic grammatical skills are important in legal writing.

Grammatical construction is one method by which courts
interpret contracts and statutes. There are many rules on how to
24. M. Moran, Comments on the Rules of Court 194

(1963 ed.).
be concise in writing. Professors Squires and Rombauer in their

book, Legal Writing, mention only eleven (11) rules in making
word choices.
A. Use w or
wor ds in their literal sense.
ords
Two common sources of imprecision in legal writing are
personification (the givens of human qualities to abstractions
or objects, e.g., coldblooded decision) and metononym
(the substitution of an attributive oral suggestive word for the
word identifying a person or thing, e.g., stage hand for stage
worker). In some writings, this kind of imprecision may
be acceptable. However, in legal writing, it may introduce
ambiguity.
Imprecise: California has so held.

Precise: The California Court of Appeals has so held.
B. Omit archaic legalisms.

Archaic legalisms are words and phrases such as hereinafter,
heretofore, aforesaid, forthwith, herein, hereby, for
purposes hereof, notwithstanding anything to the contrary
herein, so made, by these presents, and said. Not only are
these words obstacles to the lay reader, but they are also imprecise
and, thus, troublesome to the legal reader.
A more serious fault is the way archaic legalisms create
the appearance of precision, thereby obscuring ambiguities
that might otherwise be recognized. For example, a question that
has been frequently litigated is whether herein refers to the
paragraph in which it is used, to the section, or to the whole
document.
C. Use the same w or

wor ds to rref
ords ef er to the same thing; use
efer
dif
difffer ent w
erent or
wor ds to rref
ords ef er to dif
efer difffer ent things.
erent
Never attempt to improve style by introducing synonyms or other
word variations that will create confusion or ambiguity. In the
following sentence, the substitution of the word prevailing for
the word dominant creates initial confusion.
According to the dominant view, this article is applied
to periodic meetings as well as to special meetings. The
pr
preevailing view is that Article 237 of the Commercial
Code provides the right for minority shareholders to
convene either type of meeting.
Is the author discussing two views? A corollary is to use
different words when you mean different things. If the same word
is used to mean different things, the reader will be momentarily
confused.
D. Use simple, ffamiliar

amiliar w or
wor ds.
ords.
When you have a choice between a short and familiar word, such
as call, and a longer, more elaborate word, such as communicate,
choose the shorter, simple one. Simple words are understood more
quickly, and they require less reading and thinking time.
Simple Words Elaborate Counterparts
after subsequent to
before prior to
begin, carry out implement, effectuate
happen eventuate, transpire
inform apprise
make render
send transmit
think deem
think, see regard envisage
E. Use concr ete rather than abstract w

concrete or
wor ds.
ords.
Concrete words such as split decision are easier to understand
than abstractions such as judicial dichotomy. Legal writers are
likely to use abstract, overblown language in part because many
of the cases that law students read during their first year reflect an
older, overstuffed style that is all too easy to imitate. Legal writers
must resist the old style.
Some common abstractions are simple words that can often
be eliminated without loss of meaning, for example, type, kind,
manner, state, area, matter, factor, system, and nature.
Example:
The central thrust of plaintiff s legal position is dependent
on matters having to do with three decisions of the
Supreme Court.
Revised:
Plaintiff s argument for summary judgment depends on
three Supreme Court decisions.
F . Use wor
wor ds that ar
ords aree consistent in tone.
All words have connotation (overtones of meaning) as well as
denotation (explicit meaning). Since connotation contributes to
tone, the word choices in a particular piece of legal writing should
have compatible connotations. Many briefs contain glaring
inconsistencies in tone, as in the following excerpt from a fact
statement:
A third-party park-sitter, unbeknowst to Plaintiff,

contacted said Plaintiff s head with a wine bottle. Plaintiff
now has two metal plates and twelve screws holding things
together.
G . Av oid equi
equivv ocations.
As lawyers, we often hesitate to make direct or dogmatic
statements. To protect ourselves or to reflect uncertainty, use
either equivocal or qualifying words that undermine their
meaning. Typical words and phrases used in this way are: It
seems to indicate, if practicable, it would seem, it may well
be, and it might be said that. If you are uncertain, state the
reasons for your uncertainty.
H. Use unqualified nouns, adjectives and verbs.

Many writers add modifiers to intensify or buttress poorly chosen
nouns, adjectives, and verbs. Ordinarily, the right word needs no
bolstering. The following modifiers can be removed without
compromising clarity.
absolutely nearly
actually obviously
basically particular
certain, certainly plainly
clearly practically
completely pretty much
deepest quite
extremely really
frankly so (as in so great)
generally sort of
given surely
greatly truly
in effect various
kind of very
more or less virtually
A plain style is usually the best style. If you wish to use
figurative language, do so where it would not interfere with the
communication of substance.
Cliches come readily to mind during writing. Thus, a standard
part of your revision should be to remove or renovate them.
Examples of cliches are height of absurdity, day of reckoning,
and cold light of reason.
I. Avoid jar
jarggon fr om other ffields.
from ields.
Words go in and out of fashion. Vague psychoanalytic terms,
such as interaction and supportive, were frequently used for
a time before they gave way to computer jargon, such as interface
and input. Avoid word fads altogether. Words in fashion are
quickly degraded. Their specific meanings disappear, leaving only
a vague general meaning.
J. Watc
atchh out ffor
or rredundanc
edundanc
edundancyy in le
leggal writing
writing..
As most lawyers know, redundant wording has a long and
respectable past. Our Anglo-Saxon ancestors gave us word pairings,
such as safe and sound. After the Norman invasion, French
synonyms were added to the Middle English word pairs. Thus,
many legal terms have come to us in triplicate, for example, give
and take (Old English). Some word pairings are still commonly
used, such as acknowledge and confess, act and deed, deem
and consider, fit and proper, goods and chattels, keep and
maintain, pardon and forgive, shun and avoid, aid and abet,
cease and desist, fraud and deceit, and null and void. Before
automatically adopting an archaic word pairing, consider whether

both words are needed.
Unnecessary word pairing continues to be a habit in modern
English. If you think about each word you use, then you will be
able to avoid redundancies such as the following:
basic fundamentals
telling revelation
basic starting point
terrible tragedy
false mispresentation
true facts
final result
unexpected surprise
if and when
unless and until
sufficient enough
save and except
A more pervasive form of redundancy is a throw-away phrase
such as:
a certain amount of
as a matter of fact
due to the fact that
all intents and purposes
in case of
the nature of the case is
in regard to
the necessity of
the fact of the matter
with reference to
Watch out for these phrases and gradually train yourself to

omit them. As an editing technique, ask the question, Do I re-
ally need this word or phrase?
VIII. C ONCLUSION
A good memorandum, brief or resolution is readable. Readability

is your goal, but do not lose sight of your objective the
resolution of a problem. Lawyers must focus on precision and
exactness of the language to avoid latent ambiguities or disputes
about meeting. Being an effective legal writer is not easy; legal
writing requires concentration, patience, judgment, and skill.
Nothing is included without good reason and nothing of
significance is omitted. Almost everything you need to know
about writing can be summarized in one principle: Write to
communicate.
Legal Logic
Fr. Ranhilio C. Aquino, PhD, JD
I. INTRODUCTION .................................................................................... 223

II. STRUCTURE OF LEGAL REASONING ........................................... 224
III. DEDUCTIVE REASONING IN LAW .................................................. 228
IV. ANALOGICAL REASONING IN LAW ........................................ 231
V. INDUCTIVE REASONING IN LAW ............................................. 232
I. I NTRODUCTION
NTRODUCTION
1. The Constitution requires that judicial decisions be logical,

for it requires that every judgment set forth with clarity the
facts as well as the law on which it rests. Obviously, then, it is
required that a judgment follow from the evidence adduced
as well as from the relevant law, and whether or not it does
follow is a question of logic.
Fr. Ranhilio C. Aquino, PhD, JD, heads the Academic Affairs

Office of the Philippine Judicial Academy (PHILJA) and chairs
its Department of Jurisprudence and Legal Philosophy. He is a
Research Fellow at the Catholic University of Louvian, Belgium,
and at the Commonwealth Judicial Education Institute (CJEI),
Dalhousie University, Halifax, Nova Scotia, Canada. He was a
member of the Philippine delegation to the Australia-
Philippine Judicial Cooperation Project in Sydney, Australia.
He graduated Summa Cum Laude in all his degrees in
Philosophy - Bachelor of Arts, Master of Arts, and Doctor of
2. More basic, however, than the constitutional demand is the

requirement of rationality. It is a demand of reason that
conclusions be reasonably arrived at, and, in law, this means
that they have to be correctly and validly argued.
3. Logically argued conclusions of courts of law contribute to

public confidence in the Judiciary. After all, a well-written
decision and a compellingly argued judgment need no further
defense.
II. S TRUCTURE
TRUCTURE OF L EGAL R EASONING
1. When the judge finds: Wherefore, this Court finds the

accused guilty of violating B.P. Blg. 22 and accordingly
sentences him, the Court is making a claim. In other
words, it is an assertion that the Court sets forth for the
acceptance of the parties, their counsel, the Executive Branch
of government, and society at large.
2. Before having reached the dispositive portion, however, of

the decision, the Court would have stated the following or
a variant thereof:
On July 4, 1998, the accused issued PNB Check
No. 12345, his personal check, in the amount of
Philosophy. He also holds a Doctor of Jurisprudence degree,

major in International Law, from the Columbia Pacific
University, California, USA. He is also Professor of Law at
Cagayan Colleges Tuguegarao; Professor of Philosophy at the
University of Santo Tomas and De La Salle University; and
Parish Priest at St. Rose of Lima Parish, Annafunan, Tuguegarao,
Cagayan Valley.
2002] LEGAL LOGIC 225
Twenty Thousand Pesos in payment of a watch

purchased from the complaining witness. At the time
he issued the aforementioned check, he had already
long closed his checking account with the Philippine
National Bank. Having been informed of the checks
dishonor, he has failed to pay the complaining witness
the amount due.
This factual recital constitutes the ground of the judgment.
A ground is a statement specifying particular facts about a
situation that is invoked to establish the truth, the correctness
or the soundness of the claim. Ground refers to the specific
facts relied on to support a given claim.
3. The judge must then make clear the law that allows him to
draw the conclusion that the accused is guilty from the facts
established in evidence. She could then cite Section 1 of B.P.
Blg. 22 that punishes as a crime the issuance of any check to
apply on account or for value, when the accused knows at
the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in
full upon presentment.
A warrant is what authorizes the drawing of a certain
conclusion from a given set of facts. A warrant is, therefore,
a step-authorizing statement. In law, the warrant of
conclusions is the law or the relevant rule that
authorizes that a conclusion be drawn from the facts adduced
in evidence.
Ground:
You issued a check in payment of a debt, knowing fully well
that at the time of issue, you had already closed your checking
account.
Warrant:
Sec. 1 of B.P. Blg. 22 renders punishable the issuance of such
checks for which no sufficient funds exist, a fact which the
issuer knows.
Claim:
Therefore, you are guilty of the crime punished by B.P.
Blg. 22.
4. When one invokes a body of experience that is relied on to

establish the trustworthiness of ones way of arguing, then
one makes use of a backing. Before a court of law, the question
often will be whether or not the judge has correctly applied
the law, properly made distinctions, and accurately recognized
exceptions. Judicial precedent together with the doctrine of
stare decisis come to his aid. These supply the backing.
WARRANT CLAIM
Section 1 of B.P. Blg. 22 The accused is guilty of
punishes the issuance a violation of B.P.
of a check for value Blg. 22.
if the issuer knows that
he has insufficient
funds to cover such a
check at the time of issue.
GR OUND
GROUND
B ACKING He issued a check in
This rule is enunciated in payment of a debt,
Nieva v. Court of Appeals, when, at the time of
G.R. 95796-97 (May 2, 1997), issue, he had already
and other cases. closed his checking
account.
5. The model of legal reasoning thus presented makes imperative

the following demands on the judge:
a. What is the plaintiff s claim? What is the defendants claim?

What does the court, after hearing (or upon perusal of the
pleadings), posit to be the claim?
Note: Connected with this is the entire gamut of
problems in remedial law such as whether a judge may or may
not resolve issues that were not raised by any of the parties,
but are necessary towards the resolution of the case. This is
also the necessity of a pre-trial order: to set forth very clearly
the issues that are to be resolved.
b. What are the facts? Which facts are key facts those facts,
which, if different, would engender a different result?
Note: In law, fact should mean what is judicially
established in conformity with the Rules on Evidence.
c. Do the established facts ground the claims? Do they ground

some other possible claim? A traditional way of asking this
question in civil law has been: Does the plaintiff state a cause
of action? In criminal law, one way of posing the question
has been: Do the facts alleged constitute the offense of which
the accused is charged?
d. As to the warrant, is the citation by the counsel of law and

precedent accurate? Does the law or jurisprudence in fact
warrant the conclusion that counsel would have the court
draw from the facts? Aside from the warrant already cited by
the parties through counsel, is there some law or precedent
that has not been considered and that may produce a different
result?
e. Which decision of the Supreme Court is on four with the

present case? Is there any decision of the High Court that
supports the present courts interpretation and application
of the law? Is there any reason to distinguish between the
present case and that decided by the Supreme Court which
supposedly lays down precedent? Is it really ratio decidendi
that is relied on or obiter dictum?
f. Where judicial precedent is lacking, what do foreign decisions

suggest? What is suggested by legislative history or
contemporaneous, executive construction? What conforms
with the presumption that the legislature intends that which
is just and equitable?
III. D EDUCTIVE R EASONING IN L AW
A contract is a meeting of minds.

Between A who offered to sell a car without any servicing
guarantee, and B who accepted to buy the car with a one-year
servicing guarantee, there is no meeting of minds.
Therefore, between A and B, there is no contract.
1. This form of reasoning is the most commonly used form

in law, and it is governed by the rules of the traditional
syllogism already explained by Aristotle and Thomas
Aquinas.
2. One must be aware, however, that since Aristotle and

Aquinas, a very powerful system of logic symbolic or
mathematical logic has evolved that allows such valid
conclusions as:
All corporations are juridical entities. Therefore, all

representatives of corporations are representatives of
juridical entities.
Which the entire logic of Aristotle and Aquinas would never
have permitted to be drawn.
3. In legal logic, the major premise will be supplied by the law,

supported by the judicial precedent involved. However,
before the appropriate law or administrative rule is determined
and isolated, the facts must be threshed out. It is only after
the facts are considered that it can be determined which law
controls. And then again, it will be necessary to take note of
exceptive clauses, exclusive clauses, the applicability provisions
of the law, and other modifying variables.
Example:
A orally agreed with B that B should construct As house for
Php4.5 million. It was further agreed that the construction
be completed in eight months. Two and a half years into the
contract, A having paid over Php2 million thus far, B is far
from complete. A sues for breach of contract, and B pleads
unenforceability of the contract since it does not comply
with the statute of frauds.
Any contract involving an amount of over Five
Thousand Pesos (Php5,000.00) is subject to the statute of
frauds.
The agreement between A and B is one such agreement,
involving as it does Php4.5 million.
Therefore, the contract between A and B is subject to
the statute of frauds.
4. The conclusion is false, not because the reasoning is erroneous,

but because the legal (or major) premise is not properly
qualified; the correct statement of the law being that where
there is partial performance (performance on the part of one
of the parties), the statute of frauds is no longer applicable.
5. The minor premise the key facts must be so stated as to

allow for an application of the law. Put otherwise, the facts
must be so stated as to allow a middle term to exist between
the statement of the law and the statement of facts. It must
be, however, that the evidence adduced and admitted by the
court, allows such a statement.
If one starts with the constitutional premise:
Every revenue measure must originate exclusively in the
Lower House.
Then, one introduces the statement of fact:
The new tax law was passed on the basis of a bill
produced by the Bicameral Conference Committee.
Then, hardly any conclusion can be drawn. Obviously, a
question of fact (as well as an interpretation of a legal term
originate) will be involved. Did the revenue measure
originate in the Lower House?
Since the Supreme Court has ruled that originate simply
means initiated by, one can then construct the syllogism
thus:
A revenue measure that the Lower House initiates is
valid. The E-VAT was initiated by the Lower House.
Therefore, the E-VAT is valid.
IV
IV.. A NAL OGICAL R EASONING
ALOGICAL IN L AW
1. The common-law element that has found its way into our
otherwise civil law system in this jurisdiction is the doctrine
of stare decisis et quieta non movere.
2. The application of judicial precedent is known even to law

students, but some points need highlighting:
a. Is the doctrine still maintained, or has it been abandoned
or qualified?
b. Is the doctrine uniformly stated by the court (considering
that different divisions of the same Supreme Court do
sometimes produce different results on the same facts)?
c. What are the factual similarities and differences that either
warrant or do not warrant the application of precedent?
d. Which is ratio and which is obiter dictum in any particular
Supreme Court decision?
3. It is obviously not necessary that all facts of the case at Bench

correspond to the facts in the judicial precedent. It is of the
essence though that the key facts be similar and the
constellation of facts be also similar.
Key facts facts that produce a result which, if otherwise,
would yield a different result.
Constellation of facts the arrangement of facts and their
relation to each other.
4. There are cases that indisputably call for the application of

judicial precedent. In penumbral cases, however, the
application (or non-application) of precedent will depend in

large measure on whether or not the judge considers the
differences significant enough to distinguish or similar enough
to apply precedent. And whether or not the differences are
significant or similar depends on considerations such as equity
and fairness.
5. Whether or not some differences are significant or not,

however, does not always depend completely on the judge,
but is itself circumscribed by certain rules, e.g., the rule that
unless the law itself distinguishes, the courts should not; the
rule that minor inconsistencies on the part of a witness
testimony strengthen, not detract from, the probative value
of her testimony.
V. I NDUCTIVE R EASONING IN L AW
1. It might not be easy at first, seeing how inductive reasoning

has a function in law, for it is more frequently encountered in
the empirical and experimental sciences. Senior Circuit Judge
Aldisert of the United States Court of Appeals insists,
however, that inductive reasoning is at the heart of common
law. Even if we are not a common law jurisdiction, our legal
system in the Philippines has more than just vestiges of it. I
have always believed it to be a hybrid of common and civil
law systems.
2. Such persuasions, however, as falsus in unu, falsus in omnibus,

and techniques for the impeachment of witnesses rely on
inductive reasoning that would proceed thus:
In Statement 1, the witness lied.

Therefore, in the present statement, the witness is lying.
It is obvious that the presumption this reasoning works with
is that the witness behavior will be consistent. While there is
some consistency in human behavior, the human person,
though, can make options for contrary behavior, often
without notice or predictability.
3. Similarly, when the court rules that the testimony given is

incredible because it is contrary to human experience, the
court presumes that it has an idea of what human nature is,
or about how human beings behave or react on the basis of
familiarity with an indefinite number of individuals.
4. At all times, the problem with inductive reasoning, however,

has to be reckoned with: Is it not possible that this persons
reaction was different from the reaction of most other people?
Should it not be granted that the accused could have behaved
otherwise than his usual pattern of behavior suggests? Is it
not to be granted that the witness could have been untruthful
in some parts of his testimony, but is now being truthful?
5. This is the reason that in reasoning of this sort, cumulative

evidence or the concurrence of indicators is more reliable
accompanied, of course, by a constant willingness to re-think
ones position that, in turn, presupposes a healthy intellectual
humility and reticence.

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PHILJA

OCTOBER - DECEMBER 2002 VOL. 4, ISSUE NO. 14

OCTOBER-DECEMBER 2002 VOL. 4, ISSUE NO. 14 UDICIAL

II. L EGAL W RITING

III. L EGAL L OGIC

The PHILJA JJudicial

The PHILJA Judicial Journal is published four times a year, every

Editorial and general offices are located at PHILJA, 3rd Floor,

CONTRIBUTIONS. The PHILJA Judicial Journal invites the

Copyright 2002 by The PHILJA Judicial Journal. All rights reserved.

For more information, please visit the PHILJA website at

SUPREME COURT OF THE PHILIPPINES

DEPUTY COURT ADMINISTRATORS

ASST. COURT ADMINISTRATORS

ASST. CLERK OF COURT

DIVISION CLERKS OF COURT

PHILIPPINE JUDICIAL ACADEMY

Hon. HILARIO G. DAVIDE Jr.

Hon. JOSUE N. BELLOSILLO

Hon. CANCIO C. GARCIA Hon. MINITA CHICO-NAZARIO

Hon. MARINO M. DE LA CRUZ, Jr. Dean ROMULO V. BORJA

Hon. ILUMINADA C. CORTES

Prof. SEDFREY M. CANDELARIA Hon. BERNARDO T. PONFERRADA

Dr. PACIFICO A. AGABIN Hon. RICARDO C. PUNO

Hon. OSCAR M. HERRERA, Sr. Hon. ROMEO J. CALLEJO, Sr.

Hon. PRESBITERO J. VELASCO, Jr. Hon. HILARION L. AQUINO

Prof. CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING

Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO

ACA ANTONIO H. DUJUA Atty. IVAN JOHN E. UY

Justice Ameurfina A. Melencio Herrera

Professor Sedfrey M. Candelaria

Dr. Pacifico A. Agabin, Constitutional Law

Copy Editing Layout and Design

Editorial Assistance Circulation

THE PHILJA JUDICIAL JOURN

OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ........... v

THE FOUR CS OF EFFECTIVE DECISION-WRITING:

WRITING AND WRITING STYLE

WRITING OF DECISIONS AND RESOLUTIONS

THE ARCHITECTURE OF ARGUMENT

II. LEGAL WRITING

CASE ANALYSIS AND LEGAL WRITING

III. LEGAL L OGIC

THE FOUR CS OF EFFECTIVE DECISION-WRITING:

WRITING AND WRITING STYLE

WRITING OF DECISIONS AND RESOLUTIONS

THE ARCHITECTURE OF ARGUMENT

II. LEGAL WRITING

CASE ANALYSIS AND LEGAL WRITING

III. LEGAL L OGIC

Justice Reynato S. Puno was appointed Associate Justice of the

III. TECHNIQUES IN DECISION-MAKING ........................................ 20

The question may be asked: Why should judges get a lecture on

Walter Perry Johnson Foundation; and Doctor of Juridical

II. F ORM OF D ECISION

As explained by Justice Isagani A. Cruz: