T E C H N I Q U E S

I N

D E C I S I O N
by:

W R I T I N G

ZENAIDA N. ELEPAO Deputy Court Administrator Supreme Court

GOOD MORNING TO ALL OF YOU! I would like to begin by saying that generally, lawyers and law students do not know how to talk and write plain English. The murder of the Kings language by lawyers is probably what urged Shakespeare to exact vengeance on the profession by proposing in Henry IV to first, kill all the lawyers. The following is a cross-examination question asked by a lawyer of a witness: Lawyer: Now, Mr. Witness, did you or did you not, on the date in question or at any other time, previously or subsequently, say or even intimate to the defendant or anyone else, alone or with anyone, whether a friend or a mere acquaintance, or in fact a stranger, that the statement imputed to you, whether just or unjust and denied by the plaintiff was a matter of no moment or otherwise? Answer me yes or no. Witness: Yes or no what, Sir? Time and again, we judges have been bombarded by lawyers with legal literature in pleading, memoranda and briefs showing atrocious grammar, horrible syntax, legal gobbledygook, incoherence and shallow argumentation. But then again, on hindsight, being a practicing lawyer myself for twentysomething years before joining the bench, I can say pretty much the same thing of the orders, resolutions, and decisions written by a lot of judges (or so they claim) and justices, too. This said. There should be no debate then that a well-researched, wellargued, and well-written judicial opinion is appreciated not only because it is by itself a work of art, but also because it helps demystify the law by making it clear and understandable to any reader. On this score, three related activities in writing a good decision are necessary involved: research, analysis, and writing. Legal Research, for a great number of law students, has not been treated with great respect simply because it is a non-Bar subject. Case Analysis and Argumentation has also been generally overlooked in the law curriculum on the misplaced assumption that the skill can be self-learned through osmosis and experience as one goes on reading jurisprudence, or through trial and error (more often, error) in writing research papers or answering examination questions as the students plods through four (4) years, maybe more, of law school. Legal Writing skills are presumed to have been developed in preparatory courses for law, a presumption which seems to have no basis at all given the current quality of writing generally ascribed to law students. To be able to produce a decision that can be understood in all its factual and legal complexities, one must know not only how to effectively communicate

b through the written word, but also and more importantly, to convince through good research and correct analysis, that ones position is correct. Justice Horace Stern of the Supreme Court of Pennsylvania said that the essential qualities of a good judicial opinion are firstly, accuracy of legal statements and reliability of logical deductions and secondly, organization, simplicity, clarity and style. While accuracy and reliability of statements and findings of facts and law can be achieved through proper research techniques and cases analysis, simplicity, clarity and style can be developed through writing skills. Decision writing by labor arbiters finds constitutional moorings in Sec. 14, Art. VII of the Constitution which provides that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. The 1990 Rules of Procedure of the NLRC as amended mandates that the decisions of the Labor Arbiter shall be clear and concise and shall include a brief statement of the facts on the case, the issues involved, the applicable law or rules, conclusions and the reasons therefore, and the specific remedy or relief granted. First, some hornbook principles: The decision is the culmination of the adjudicatory process of a case. It is composed mainly of five parts: (1) a Statement of Procedural Events which includes an identification of the parties, the nature of the case and the reliefs prayed for; (2) a Finding of Facts; (3) a Statement of Issues; (4) a Holding on each issue; and (5) the Disposition of the Case. A. Statement of Procedural Events To be able to thoroughly understand the case before you, it is necessary that you familiarize yourself with the events that have occurred in the life of the case, from the filing of the complaint to the submission of the last pleading. B. Finding of Facts To make a finding of facts, it is imperative that you know the theory of the case for the complainant as for the respondent. The theory for complainants case consists of a set of facts relating to his cause of action which he believes is supported by law and for which a legal remedy is provided. In looking for the cause of action, two questions must be answered: (1) What acts are alleged which constitute a violation of a right, and (2) What loss has resulted from such acts? It must also be remembered that the elements of a cause of action are (a) a legal right of plaintiff, (b) a correlative duty of the defendant, and, (c) an act or omission violating the legal right. If all these are established, the plaintiff has a cause of action. It is also a rule that the parties must stand by their theories upon which they ask and obtain dispositions of their claims. A party is not permitted to follow one theory in his pleadings and change or abandon it during trial or appeal. The respondents theory of his defense on the other hand consists of a set of facts, which he believes are true and supported by law, sufficient to offset complainants contentions. It may be either a negative defense, which is a denial that a cause of action is present, or an affirmative defense, which consists of facts negating complainants cause of action assuming that the latters allegations are true.

c Fully acquainted with the respective case theories of the contending parties, you now embark on a journey to discover facts. This akin to approaching what the noted astro-physicist Stephen Hawking calls the Event Horizon of a Black Hole. Here you will be bombarded with facts of every shape, size and color; and if you are not careful, you will be waylaid and pulled in every which way and in all directions and up losing sight of your purpose. Facts are established by evidence. Varying standards of proof are demanded by the particular proceeding involved. Criminal cases require proof beyond reasonable doubt for conviction. Administrative cases need only substantial evidence, while civil cases are established by mere preponderance of evidence, which means that on the balance, the fact finder concludes that more evidence supports than contradicts the complainants allegations of facts. The fact as narrated by the parties must be established by competent evidence. This is why you must read and study all the submissions of the parties, which appear in the complaint, verified position papers, and memoranda, and the documentary evidence attached thereto. C. Identification of Issues A major part of your draft decision is the identification of the issues on which you will make a ruling. An issue is a proposition alleged on one side and denied by another or any important point on which a case may turn. The issues, whether of fact or of law, are raised by the pleadings and are defined at the mandatory conference. There are two kinds of issues: that of fact or of law. Issues of fact are formed when there is a conflict in the evidence of the parties as to an essential fact. What do you do when the facts alleged by both parties conflict? Refer to the evidence. Determine and accord the appropriate weight to each piece of evidence submitted. Search for the earmark of truth. These are found in the transcripts, if the proceedings are recorded. Oftentimes the testimony or allegation of a party is inconsistent. Do not immediately discard is as untrue. Examine if the inconsistency is on minor point, because if it is, then this may be an indication of truth. Testimony or averments that are methodical and repetitious sound too pat and rehearsed. If the parties and witnesses are placed on the witness stand, their demeanor must be observed. In this aspect, it helps to take down notes. D. The Holding The heart of every decision is the holding by the court on each issue. The holding consists of: (a) the finding or conclusion for each issue; (b) the rule supporting the conclusion; and (c) proof of the rule through citation of authority, and explanation of how the authority stands for the rule. It is this process of argumentation that substance combines with form. I suggest that each finding of the fact be supported by a referral to the specific evidence that established it. In questions of law, for every finding or conclusion made in each issue, the pertinent rule supporting it must be stated, followed by proof of the existence of such rule by citation of authorities, whether these be law or jurisprudence. This process is where you justify your holding on each issue. One must be sure however that whatever authority cited is the existing pertinent law and current jurisprudence. How many times have we encountered cases where the authorities cited had already been amended, repealed or overturned and consigned to the Archives.

One must also not undermine the power of deductive reasoning, especially in resolving questions of facts. My one big lamentation on this matter is that there seems to exist a common inclination of lawyers and judges to rely more and more on citations of authorities, even on issues of fact, to convince the whole world (and themselves most especially) that their finding is correct. Corollary, they exhibit a particular disinclination to employ deductive reasoning or logic. This is not to denigrate the value of legal research. But this slavish predilection of lawyers for anthologizing authorities in the belief that the more cited, the stronger the finding (the more, the merrier), to my mind, indicates the growth of breed of lawyers whose brain cells are nothing more than physiological components of the cerebrum or the medulla oblongata rather then Go-given tools for critical thinking and analytical reasoning. While PhilJuris and Lex Libris can provide you with fingertip information of recent developments in law and jurisprudence, nothing beats the human brain for syllogistic deduction and reasoning. I am reminded here of the story of a lawyer who was so tired at the end of the day that he had to drag himself through their front door and slump into a sofa. Busy day at the office, dear? asked his wife. Terrible, he sighed, the computer broke down this morning and I had to think for the whole day! Therefore, use your reasoning powers inductive and deductive. But watch out for fallacies. I would not want you to follow the thought processes of the French Inspector Jacques Clousseau of the Pink Panther fame who proceeds from a number of proven facts as his premises and then concludes: I have a feeling that Monsieur Ravel is the thief! Or, to syllogize in the following manner: Nothing is better than God: a centavo is better than nothing; ergo, a centavo is better than God. There are pitfalls in logical reasoning that should be avoided for do not make for a clear and convincing conclusion. Some common fallacies are the following: 1. The Post Hoc fallacy (post hoc ergo proper hoc) - This assumes that because an event or action occurs after another event or action, the second event is caused by the first, (e.g. Every time I have a good laugh, something bad happens afterwards. Therefore, I will never laugh hard.) Hasty Generalization - this involves jumping into conclusion without adequate sampling (e.g., the company president and his female secretary work on Saturdays, therefore, they are having an affair.) Non Sequitur - Literally, it means it does not follow. Example: A ninety year old woman claimed that because of the accident in which she lost her sense of smell, she could no longer dance. I recall a poem in grade school delivered by a schoolboy, which ran this way: Cows is a very useful animal. Cows give milk. But as for me, give me liberty or give me death! Ad Hominem fallacy - writer attacks the person of his opponent rather than meet head-on his opponents arguments. Prof. Samuel Seigel, one of our lectures at the Academy of American and International Law in Dallas, Texas

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e advises lawyers that if they are strong on the facts, pound on the facts. If strong on the law, pound on the law. And if they are not strong on either fact or law, pound on the table; if there is no table, pound on the opponents head! 5. Begging the question - By basing a question upon a fact not yet established, the speaker puts the opponents in an unavoidable position of acknowledging guilt no matter how he answers the question. (e.g., have you stopped beating your wife?)

Once the findings of fact and law have been drawn, the disposition comes next. In labor cases involving monetary awards, the decisions or orders of the Labor Arbiter must contain the amount awarded. In case the decision contains an order of reinstatement, the Arbiter shall direct the employer to immediately reinstate the dismissed or separated employee even pending appeal. The order or reinstatement shall indicate that the employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. Having discussed the Pre-Writing Stage in the preparation of a legal opinion, i. e. research, Analysis and Argumentation, let us now focus on the Writing Stage. Since we write our opinion in English and, rarely in Pilipino, let me present a commentary by Richard Wydick, author of a book entitled Plain English for Lawyers1 who laments that We lawyers do not write plain English. We use eight words to say 1what could be said in two. We use arcane phrases to express commonplace ideas. Seeking to become precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on phrase within clause, glazing the eyes and numbing the minds of our readers. The Labor Code is a classis example of this style of writing. For instance, Art. 218 on the Powers and Duties of the NLRC is one lengthy sentence, paragraph (c) of which reads: to conduct investigation for the determination of a question, matter or controversy within its jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has been summoned or served with notice to appear, conduct its proceedings or any part thereof in public or in private, adjourn its hearings to any time and place, refer technical matters or accounts to an expert and to accept his report as evidence after hearing of the parties upon due notice, direct parties to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect or irregularity whether in substance or in form, give all such direction as it may deem necessary or expedient in the determination of the dispute before it, and dismiss any matter or refrain from further hearing or from determining the dispute or part thereof, where it is trivial or where further proceedings by the Commission are not necessary or desirable. And this is not even a clause it is only a phrase. A practitioner was once asked how he was able to write very clear concise and brief memoranda. His answer was: It is not hard, just omit the surplus words. What did he mean by this? Let me illustrate what he meant by this example: There was a man named Elijah who lived with some bears in a cave. Some boys tormented him and he said to them: If you keep throwing stones at me, Ill turn bears on you and they will eat you up. The boys did, and he did and the bears did.
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Carolina Academic Press, Durham, North Carolina, U.S.S., 3rd Edition, 1993.

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Resist Glue Words. There are two kinds of words in every sentence, the working words, and the glue words. Working words convey the meaning. Glue words hold the working words. Without them, the sentence will read like a telegram. An overdose of them results in a badly constructed sentence. e.g. The motion of the complainant was objected to by the respondent. This could be rewritten as: Respondent objected to complainants motion.

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Avoid Compound Constructions. Compound Constructions use three (3) or four (4) words to do work of one word. e.g. The employee was absent from for the reason that he was sick. Use instead because. The fact that she had died was immaterial. Change this to: Her death was immaterial

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Focus on the Actor, the Action, and the Object. e.g., It is possible for the Court to modify its judgment. Can be modified to: The Court can modify its judgment.

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Do not use redundant legal phrases, like null and void, force and effect, true and correct, full and complete, convey, transfer, and set over. e.g., The contract of employment was fully and completely null and void ab initio, and therefore of no force and effect.

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Use Action words to express life and motion base verbs are simple creatures and do not tolerate dressing up. Lets not nominalize by verbs transforming them into nouns such as using collision for collide (Two trucks collided, - instead of A collision occurred between two trucks.), action for act, assumption for assume. Lawyers love to nominalize. To them, persons do not act, they take action. They do not conclude, they make conclusions. They ask, Please make a statement about why you are interposing an objection to the question instead of Please explain why you object to the question. Prefer the active voice.

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Instead of saying: The contract was signed by the parties, say, The parties signed the contract. 7. Use short sentences and put only one main thought. Keep the average sentence length below 25 words. Avoid wide gaps between Subject, Verb, and Object. Wrong: This agreement, unless revocation has occurred at an earlier date, shall cease to take effect on 1 November 1998. Correct: Unless sooner revoked, this agreement shall expire 1 November 1998. And avoid The Russian Doll (Matrushka) modifiers like: Respondent who was driving a school bus of children who were already late for school that morning which rained very hard suddenly swerved to the right lane fronting the grandstand where a game was playing and crashed into a lamppost that was standing about three meters from the concrete pavement. When necessary, tabulate or enumerate. 9. Do not use Lawyerisms, such as aforementioned, hereinafter, heretofore, or the overworked said as in, said respondent, said claim, etc. e.g., The object of said conspiracy among said defendants was to fix said prices of said industry and commerce. 10. Avoid sexist language. e.g., The weaker sex, a manly effort, etc. 11. Punctuate carefully! Ship Captain John having gone to sea, his wife requests that the congregation pray for his safety. The techniques discussed here are not to be considered as strictures on your writing style as labor arbiters for some of you may have already developed your own methods of analysis and argumentation and writing. Nevertheless, all these I have mentioned are designed to stress the need for clearer, better organized and briefer opinions! Read extensively and observe how ideas are organized and expressed to attain exactitude and fluidity of thought. The Bible, is by all standards, one of the best of clear, uncluttered and concise thought. In, at, around, and/or in close proximity to the beginning, God, in conjunction with his agents assignees and successors in interest

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h created, devised, caused to be made, made, fashioned, formed, brought into being, conceived, invented and occasioned the Heaven and the Earth. And said Earth was voidable. 2

Douglas Lavine, in At Issue, Am-Bar Asso. Journal, vol. 69, September, 1983 p. 1192, quoted by G. Block, in Effective Legal Writing, 1986, 3rd Edition, Foundation Press Inc., Mineola, New York, U.S.