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LEGAL TECHNIQUE

AND LOGIC
CHAPTER 1
Preliminary Considerations
1.

Purpose of legal education[1]

The study of law is not a science. Rules of law are not


immutable like laws of nature. Rules of law do not describe objective
truth, they reflect subjective intentions. The lawyers task is not to
deduce the law from an unchanging set of principle, but rather to
predict how the law will emerge from a number of sources and a welter
of conflicting values. As Holmes said, The prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean
by the law.[2] Law students are not expected to memorize all the
rules of law, but are expected to learn how to persuasively argue for a
favorable interpretation of the law or for a change in the law.
The curriculum in the first year of law school now consists of
courses thought to have practical importance. In all these courses
students are expected to brief the cases, that is, to prepare a short
summary of each judicial decision, setting forth the facts, the issue, the
holdings, and the courts reasoning.
Most students consider the holding of the court, which
expresses the rule of the case, to be the most important part of the
brief, and commit these case holdings to memory for use on
examinations. Students do this because they believe that collectively
these rules are the law, and that studying the law essentially
consists of learning the holdings of the assigned cases and organizing
them into a coherent pattern called the outline of the course.
It is true that in law school students dedicate thousands of
hours to the job of memorizing the holdings of cases and preparing
course outlines, and this is no easy task. But memorizing case holdings
and course outlines is only half of what students must learn in law
school, and it is the easy half.
The truly hard part of law school, and the part that makes a
legal education truly useful, is mastering the art of legal analysis.
Students must learn not only the rules of law, the case holdings and
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course outlines, but must also learn how courts interpret the law and
create it. It is not enough to know what the law has been; it is also
necessary to develop the ability to predict what it may become.
Students must master this skill because it is basic to representing
clients competently.
The purpose of legal education is to teach students how to
think like lawyers. Students must learn how to make arguments for a
favorable interpretation of an existing rule of law, or for the adoption of
a new rule of law.
2.

Practice of Law

The practice of law takes various forms: (a) giving advice on


rights, duties, remedies, or courses of action; (b) negotiations; (c)
preparation of contracts and documents; (d) legal representation in
transactions, hearings and proceedings; and (e) other actions that
have legal importance or significance. Any field of human activities in
which the application of legal knowledge is important is covered within
the term.
Practice of law means any activity, in or out of
court, which requires the application of law, legal
procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally,
to practice law is to give notice or render any kind of
service, which device or service requires the use in any
degree of legal knowledge or skill."[3]
A lawyer performs the roles of investigator, adviser, and
advocate. In all these areas, lawyers are called upon to offer solutions
to varied problems which have legal implications. In a manner of
speaking, lawyers are problem-solvers.
3.

Knowing the law

The four-year study of law has the objective of equipping the


student with a basic foundation of knowledge about law in all its
essential fields, substantive and procedural.

The qualifying Bar Examination which must be passed before a


law graduate is admitted to the practice of law tests the examinee on
eight fields: (a) Political Law; (b) Labor Law; (c) Civil Law; (d) Taxation;
(e) Commercial Law; (f) Criminal Law; (g) Remedial Law; and (h) Legal
Ethics and Practical Exercises.
4.

Thinking like a lawyer

Thinking like a lawyer embraces competence in two general


areas: first, acquiring the basic foundation of legal knowledge, and
second, acquiring the basic skills of applying the legal knowledge in
finding solutions to legal problems.
Knowing the law is essential. But this alone is not enough.
Students should be able to learn how to apply the legal knowledge to
specific situations. Part of the education in law of students is to have
them learn and be trained in the basic skills needed to prepare them in
their practice of law in the future.
Lawyers perform a variety of activities, and the fields of practice
where legal education is essential or useful are broad enough to call for
a good range of skills. Whatever particular area of practice a lawyer
may choose to engage in, there are some basic or key skills that he or
she needs to acquire and develop to a high degree. These skills are:
a.
Written and oral communication skills. These involve
proficiency in the use of language in both written and oral form to
convey the lawyers thoughts, inferences, arguments, and rulings.
Language is the lawyers essential tool of trade.
A good lawyer is much more than a professional. A good lawyer is
a craftsman, applying his or her talents with imagination, diligence,
and skill. Although the practice of law requires a combination of
negotiating, counseling, research, and advocacy skills, there is one skill
upon which all others depend. The good lawyer, the craftsman, must
be able to write effectively. Effective legal writing combines two
elementslegal technique and writing. [4]
b.
Analytical skills. These involve the use of logic and
reasoning tools in the application of law in particular situations.

c.
Research skills. These involve knowing where and how
to locate and analyze authorities and other information necessary to
the completion of legal tasks.
d.
Problem-solving skills. These involve the ability to
identify and dissect legal problems and to come up with solutions and
strategies. [5]
5.

Complementary skills

In addition, lawyers must keep abreast of and use


technological advances in communication and research to enhance
their ability to respond to clients needs promptly and efficiently.
Lawyers often work under time pressure, and are always on call
to attend to office and client needs. So it is important that they are
able to develop a good work ethic, prioritize work, meet deadlines, and
overall, to manage their time well and balance their professional,
personal and other activities.
6.

Legal Technique

One author has described legal technique as an instrumental


skill, covering the entire legal process from making to applying the law.
[6] It involves the acquisition of skills in the application of legal
knowledge for specific tasks. These tasks cover the making,
researching, studying, interpreting, and communicating of legal
materials, ranging from the drafting of statutes to preparing judicial
opinions, from writing of pleadings to arguing in court, from giving
advice to negotiating transactions.
7.

Legal Logic

Logic refers to the system, principles, and modes of reasoning


used in a particular field of study, described as legal logic when
applied to the field of law. Legal logic is a science that deals with the
principles and criteria in demonstrating the validity of inferences or
conclusions drawn from premises. It is also an art as it requires the
ability to apply these principles and criteria in particular instances.
8.

Legal Reasoning

Preliminarily, the kind of thinking done in a profession is


described as inferential thinking, the mental activity involved in
drawing out or getting a truth or conclusion from something previously
known to the thinker. This mental activity is called reasoning, or the
process of comparing two concepts with a common third concept for
the purpose of establishing their agreement or disagreement with each
other. [7] Inference is the mental result of the act of reasoning.[8] To
reason is to make an inference from a previous proposition or
propositions, to give credence to it, or claim credence for it, as a
conclusion from something else. [9] Reasoning is the process by which
new truths are derived from those previously assumed to be true and
an inference is produced. [10]
In the field of law, this method of thinking is called legal
reasoning. It is a means of solving a legal problem by pondering a
given set of data (i.e., law and facts) to perceive the relationship
among the data and reaching a logical conclusion. [11]
Three distinct mental operations are involved in legal reasoning.
First is simple apprehension by which the essence of a thing is grasped
and a concept or idea is produced. Example is the concept of killing of
a person.
Second is judgment in which two or more concepts are gathered
together to construct a new structure of thought, as for example, the
concept of killing of a person and the concept of intent to kill, which
when combined lead to the judgment of homicide. This judgment of
homicide is then compared with a judgment drawn from a set of facts,
as for example, X intentionally kills Y.
The third mental operation of reasoning which is the process of
relating the two judgments (homicide and intentional killing by X of Y)
in order to reach a conclusion, as in the same example, X committed
homicide by his intentional killing of Y.

[1]
This part is taken from William Huhn, The Five Types of
Legal Argument, 2d Ed., Chap. 1, pp. 10-12
[2]
Id., citing Oliver Wendell Holmes, The Path of the Law, 110
Harv. L. Rev.. 991, 994 (1997), reprinted from 10 Harv. L. Rev. 457
(18987)
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[3]
Cayetano v. Monsod, G.R. No. 100113, 3 September 1991
[4] Okianer Christian Dark, Transitioning From Law Teaching to Practice
and Back Again: Proposals For Developing Lawyers Within the Law
School
Program,
http://
www.
law.ua.edu/
pubs/jlp/files/
issues_files/vol28/v28a4.pdf (accessed 3 November 2012), citing John
C. Dernbach & Richard V. Singleton II, A Practical Guide to Legal Writing
and Legal Method Xxi (1981)
[5]
Portions were adapted from Justice Serafin V. C. Guingona,
On Legal Education, IBP Journal, Vils. XX & XXI, 1992-93, pp. 59-67
[6]
Csaba Varga, Doctrine and Technique in Law,
www.univie.ac.at/ RI/ IRIS2004 /Arbeitspapierln /.../Csaba_Phil.doc
(accessed 5 October 2012)
[7]
Id., 97
[8]
Id., 3
[9]
John Stuart Mill, A System of Logic, http:// ebooks. adelaide.
edu.au /m/mill /john _ stuart/system_of_logic/index.html; accessed 5
Aug. 2011
[10]
Id., 7
[11]
Cf Ruggero J. Aldisert, Logic for Lawyer, A Guide to Clear
Legal Thinking, Third, Ed., 38