Professional Documents
Culture Documents
ON PRACTICAL EXERCISES
By: Atty. Edwin M. Carillo1
Based on the official syllabus, this year’s Bar Examinations shall have a
portion on Practical Exercises as part of the exams on LEGAL ETHICS. While
this has always been a part of previous Bar Examinations, this portion was
removed in the 2012 Bar examinations after it gained prominence in the 2011
Bar Examinations when the Bar Chairman opted to insert a skills examination
on a predominantly MCQ-type exam that year, asking the candidates to draft
both a legal opinion and a trial memorandum.
This year’s Bar Exam syllabus on Legal Ethics lists the following for
Practical Exercises:
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Atty. Carillo served as member of the College of Examiners in the 2011 Bar Examinations that
handled Legal Ethics and the Skills Examinations for Trial Memorandum. He is a professor of law
and bar reviewer teaching courses like, Political and Constitutional Law, Land Registration Law,
Administrative Law, Legal and Judicial Ethics, Trial Technique, and Legal Forms and Writing for
over two decades now. He currently serves the government as an Assistant Government Corporate
Counsel of the Office of the Government Corporate Counsel, an agency attached to the Department
of Justice.
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d. PUT A DATE in all the legal documents that you will draft as
required.
The patterns of legal forms, i.e., Business Legal Forms or Judicial Legal
Forms would be useful here. Familiarize yourselves with their respective
patterns to save you time when drafting any of them during the examinations.
(a) appears in person before the notary public and presents an instrument or document;
(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such instrument or
document. (This means that the declarant vows under penalty of law to the whole truth
of the contents of his statement. Note also that the elements of a jurat are connected by
a conjunctive “and”. As such, each one act should be reflected in the jurat.)
AFFIDAVIT
Affiant
┐
│
SIGNED AND SWORN before me this 6 June 2017 at Manila, affiant │
exhibited to me his Passport JJ2003*, issued on 9 January 2016 at Manila. │
│
│
(SGD) JUAN C. MENDOZA │
Notary Public for Manila │
Suite 212 Burke Building, Escolta, Manila │Jurat
Commission Serial 54342 │
Until Dec. 31, 2018 │
Roll of Attorney 38718 │
PTR 56789; 1-12-17; Manila │
IBP 24680 1-12-17 Manila │
Doc. 12; │
Page 8; │
│
Book II;
┘
Series of 2017.
(b) the oath or affirmation of one credible witness not privy to the
instrument, document or transaction who is personally known to the notary
public and who personally knows the individual, or of two credible witnesses
neither of whom is privy to the instrument, document or transaction who each
personally knows the individual and shows to the notary public documentary
identification.
This statement, jointly executed by the mortgage parties, is used only in chattel
mortgage contracts signifying that their agreement is valid and not for fraud. The absence of
this affidavit can render the contract void. This is a favorite form among examiners, as it will
require examinees to accomplish four (4) forms in one question, namely:
2. (ACKNOWLEDGMENT)
4. (JURAT)
CERTIFICATIONS
Another common sworn statement is the corporate or partnership certification.
Corporations produce resolutions, which may be certified either by the Corporate Secretary
or by the Board of Directors itself. Such certifications are known as the Secretary's
Certificate or Directors’ Certificate, respectively. In case of the latter, the Directors who
actually took part in the deliberation of the resolution shall sign it. In the case of
partnerships, the managing partner or all the partners execute certifications. Look at the
sample certificate below.
SECRETARY'S CERTIFICATE
(JURAT)
18.
Republic of the Philippines)
Calamba City, Laguna) S.S.
3. Finally, I declare that I have read this document and the quitclaim
given is made willingly and voluntarily and with full knowledge of my rights
under the law.
Doc. 6;
Page 4;
Book I;
Series of 2017.
A Deed indicates the unilateral act of a person in disposing his property or right in
favor of another after his receipt of a consideration. The transaction is terminated by the
conveyance of the thing or right. A typical deed has the following parts: Title,
Announcement, First Party, Consideration, Act or Conveyance, Second Party, Signature
and Acknowledgment. (Code:TAF-CAS-SA) Observe these parts in the deed below.
DEED OF SALE
to RICARDO LIM, of legal age, married, and residing at 2 Bangkal St., Manila.
(ACKNOWLEDGMENT)
If the act or conveyance is altered, the deed could be converted into another one.
The operative statement would change depending on what the examiner demands from the
examinee. The common deeds asked in the bar in the past are deeds of assignment,
donation inter vivos, easement of right of way, real estate or chattel mortgage, and powers
of attorney.
In drafting a deed of donation inter vivos, do not forget the acceptance of the donee
and the donor’s declaration that he reserved sufficient properties for himself and his
creditors. The operative statement that should be remembered would be something like
below:
Check out the following operative statements for the following specific deeds:
In a Deed of Assignment:
In drafting an agreement using a contract form, you must remember that it should
contain the essential requirements of object, consideration, and consent. The peculiarities of
a specific contract should also be taken into consideration. Using a contract form means that
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you must show the parties’ respective undertakings. A contract usually has the following
parts: Title, Announcement, Actors, Recitals, Agreement, Conditions, Signatories and
Acknowledgment. (Code: TAA-RAC-SA) Observe these parts in the contract below.
CONTRACT OF SERVICE
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JUAN N. BUELTA, Filipino, of legal age, and residing at 789 Craig St.,
Sampaloc, Manila.
TOMAS owns a house and lot at the above given address and his
property requires the prompt installation of a deep well;
1. TOMAS shall pay JUAN the sum of (P40,000.00) for both materials
and labor cost payable as follows:
2. JUAN warrants that the deep well it shall install and deliver to
TOMAS shall be free from hidden defects and against poor worksmanship.
3. JUAN assures TOMAS that the deep well shall yield the normal
volume of potable water for a standard family of six. Otherwise, the JUAN
undertakes to re-do the work at no cost to TOMAS. Should the project be
redone that will require installation of extra pipes of at least 12 feet long,
TOMAS shall defray the cost of the materials.
(ACKNOWLEDGMENT)
Note well that deeds and contracts forms both speak of agreements and, therefore,
covered by the civil law concept of contracts. They vary in templates or forms used as
shown above. Deed forms are unilateral and, therefore, a first person’s point of view is
utilized. Contract forms demonstrate bilateral or multilateral acts or undertakings. As such,
the third person’s viewpoint is recommended in drafting this.
ACKNOWLEDGMENT
They are known to me to be the same persons who executed the foregoing
contract and they acknowledged that their signatures prove their voluntary acts
for the purposes stated in the document.
JOINT ACKNOWLEDGMENT
all known to me to be the same persons who signed the foregoing Will, the first as
Testator, and the last three as instrumental witnesses, and they respectively
acknowledged to me that they signed the same as their own free deed.
This will consists of two pages, including the page on which this
acknowledgment is written, and has been signed on the left margin of each and
every page of it by the testator and his witnesses, and sealed with my notarial seal.
ACKNOWLEDGEMENT
They are known to me to be the same persons who executed the foregoing
contract on behalf of the corporations they represent and acknowledged to me
that the same is their voluntary acts and that of the corporation being
represented.
*Based on Section 1, Rule II of the 2004 Notarial Rules, only individuals can be
parties in the acknowledgment process. Corporations cannot take part in the process even if
they are the real party to the contract or deed. If a corporation is a party to the contract, its
representative must act for it and must so indicate in the acknowledgment that he acts in
such representative capacity. Unless required, It is advisable to simply refer in the drafted
deed or contract the specific authority of the corporation’s representative.
*The absence of an acknowledgment will not render the contract or deed void except
when the law requires that a contract be in some form in order that it may be valid or
enforceable like acts and contracts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property; sales of real property
or of an interest in it which under the law must appear in a public instrument. An
acknowledgment, therefore, in these special cases is a must.
The Answer:
22.
Promissory Note
Acknowledgment
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B. JUDICIAL FORMS
A typical judicial form takes a single pattern and has the following parts: (1) Caption;
(2) Title (3) Introduction; (4) Body; (5) Relief; (6) Attorney’s Box; and (7) Addenda. (Code:
Cap-TIBRA-A) The caption sets forth the name of the court, the title of the action and the
docket number if assigned. (Cf. Section 1, Rule 7, Rules of Court) The title referred here is
the title of the document, either complaint, petition, motion, opposition, answer, reply, etc.
The Introduction presents the writing party to the reader. The Body sets forth its designation,
the allegations of the party’s claims and defenses and the date of the pleading. The Relief
box indicates the specific relief sought by the party including the general prayer for further
relief as may be deemed just and equitable. The Attorney’s box indicates the name and
signature of the lawyer, his office address (not post office box), his Integrated Bar of the
Philippines and professional tax receipt numbers. The latest Supreme Court circular also
requires the inclusion of the lawyer’s roll number. A counsel’s failure to indicate his roll
number renders the document a scrap of paper. An unsigned pleading produces no legal
effect. A lawyer’s signature is a certification that: he has read the pleading; to the best of his
knowledge, information, and belief, there is a good ground to support it; and that it is not
interposed for delay. The Addenda to these documents usually vary depending on the
judicial form being drafted. Observe these parts from the samples below.
I. COMPLAINTS
Rule 6 of the Rules of Court, as amended, has consistently required that complaints
be concise enough to contain mere ultimate facts of a plaintiff’s cause/s of action. The body
of the complaint is most important. In Javelosa vs. Court of Appeals, (G.R. 124292, 265
SCRA 493 [1996]), the Supreme Court held that “what determines the nature of an action,
as well as which court or body has jurisdiction over it, are the allegations of the complaint
and the character of the relief sought.” In this regard, the body of the complaint usually has
two parts: the identity of the parties and the cause of action (a statement of the right of the
plaintiff and a statement of the defendant's violation of such right). Note that in Manchester
Development Corporation, et al. vs. Court of Appeals, et al. (G.R. 75919, 7 May 1987), the
Supreme Court held that “all complaints, petitions, answers and other similar pleadings
should specify the amount of damages being prayed for not only in the body of the pleading
but also in the prayer, and said damages shall be considered in the assessment of the filing
fees in any case. Any pleading that fails to comply with this requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the record.”
The addenda in a complaint are the verification (when required) and the certification
against forum shopping (mandatory). A sample complaint is provided below.
___________________________________________________________________
PEDRO C. LABO,
Plaintiff,
JOSE B. LINAW,
Defendant.
x-------------------x
(2) COMPLAINT
Cause/s of Action
3. The parties executed a lease contract on 28 August 2013 for Jose’s use of
a house and lot owned by Pedro located in Binondo. A copy of this contract is
attached as Annex A. Part of the agreement is the payment of P15,000.00 monthly
rent.
5. Because of Jose’s unjustified refusal to heed his just demands, Pedro was
constrained to institute this suit, incur litigation expenses to be proved during trial
and retain the services of a lawyer for a fee of P40,000.00, all of which he deserves
to be reimbursed.
(5) Relief
Verification/Certification
I, Pedro Labo, plaintiff in the above-entitled case, state under oath that: (1) I
have read the above complaint and the facts stated in it are true and correct to the
best of my knowledge and/or based on authentic documents made available to
me; (2) I have not commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of my
knowledge, no such other action or claim is pending in them; and (3) if I should
learn that the same or similar action or claim has been filed or is pending after its
filing, I shall report that fact within five days from notice to the court or where the
complaint or initiatory pleading has been filed.
(JURAT)
III. MOTIONS (Cf. Rules 15 and 16, Rules of Court, as amended) The Body of a motion
usually has two parts: the ground for the motion and the argument in support of the motion.
Motions can either be litigated or non-litigated.
_________________________________________________________________________
(CAPTION)
MOTION TO DISMISS
Argument
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Relief
(Attorney’s Box)
(CAPTION)
MOTION TO RESET
(Attorney’s box)
_____________________________________________________________________
ADDENDUM TO MOTIONS.
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NOTICES OF HEARING.
The Rules of Court requires that the notice should be directed to the parties (counsel
included) NOT TO THE CLERK OF COURT. Otherwise, the motion shall be considered a
sham or a mere scrap of paper (Cf. Mesina, et al. vs. Court of Appeals, G.R.110946, 24
October 1994). Moreover, the rules provide that the motion day and time be on Friday at
2:00 o’clock in the afternoon. While in actual practice this rule is usually observed in the
breach, you are expected to conform strictly to this requirement as a Bar examinee. Motions
are either litigated or not. Non-litigious motions are those that may be acted upon by the
Court without further argument like a motion to reset or a motion for postponement. All other
motions are litigated and should be acted upon after due hearing. Check the sample notice
below.
___________________________________________________________________________
Sir:
Please note that the undersigned counsel shall submit the foregoing
motion for the Court’s resolution on 9 June 2017, Friday, at 2:00 o’clock in the
afternoon.
_________________________________________________________________________
1. Aside from avoiding needless words to save on time, use the active voice instead
of the passive voice. Passive voice is indirect, limp, and weak. On the other hand, the active
voice is direct, vigorous, and strong. Sense the difference.
2. Use the right connectives. You need the help of connectives or transitory devices
to link your ideas one after the other and present a unified thought. You cannot assume that
your reader can read unspoken tie-ups between ideas. Consider the following useful
connectives:
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Connective Function
And Connects two ideas of the same
kind
Besides, what is more, furthermore, in Adds another thought to the first
addition, and again
First, next, then, finally; meanwhile Arranges ideas in order
Nearby, above, below Arranges ideas in space
But, still, however, on the other hand, Connects two contrasting ideas
nevertheless, rather
In fact, as a matter of fact, Connects the first idea with the
second one that points it up; the
second one affirms of validates the
first idea
Therefore, consequently, accordingly Connects an idea with another that
follows from it.
In short, to sum up, in brief Summarize several ideas
3. Avoid legalese and old English. Legal clichés have become hackneyed and
weak. To non-lawyers, they may even sound pretentious, unnatural or artificial, if not
arrogant. Phrases and words like to wit, instant case, aforesaid complaint, herein method,
thereat and theretofore deserve to be abandoned in favor of simpler words.
4. Be simple. Some have the mistaken belief that they will sound more dignified and
lawyerly if they use polysyllabic words like “accompanied” or “informed” instead of “went
with” or “told”, respectively. Your written work will have the same tone of formality and
dignity as long as it is serious and thoughtful. As a rule, a simple familiar word that means
exactly the same thing is the better choice.
5. Check your grammar. In presenting answers, ensure that the subject agrees with
the verb. Use proper tenses and punctuations, too.
oOo