LEGAL WRITING

ATTY. MARILYN P. CACHO-DOMINGO

LPU-College of Law
School Year 2016 - 2017

Purpose:

To be able to write pleadings, motions and short appellate briefs in their proper
format.

I. PERSUASIVE LEGAL ANALYSIS

A persuasive document attempts to convince a third party to decide in

favor of the writer’s client. The third person may be a judge or arbitrator before
whom the lawyer argues to win a case or an opposing party before whom the
lawyer sends a demand letter. Persuasive legal writing addressed before a judge
are called pleadings, motions and briefs.

Persuasive documents, much like an objective inter-office memoranda,

may state legal issues, cite authorities and invoke precedents. The difference is
in persuasive documents the author will argue in favor of only one approach to
resolving the dispute. A neutral stand is not expected.

A. Pleadings

Pleadings are the written statements of the respective claims and defenses
of the parties submitted to the court for appropriate judgment. They are the
written declarations of affirmation on one side and denial by the other. The rules
require that every pleading shall contain in a “methodical and logical form” a
“plain, concise and direct statement” of the “ultimate facts” replied upon by the
pleader for his claim or defense.

1. Purpose – The purpose of pleadings is to define for the court

the issues of laws or fact raised by the parties. As pleadings are the
basis as to what evidence would be presented in court, it is important
that the statements written there are definite.

2. Kinds of Pleading

a. Complaint – informs the defendant

definitely of the claims made against him, so that he
may be prepared to answer and meet the issues at the
trial, to give the defendant information of all the material
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 facts on which the plaintiff relies to support his demand,
and to the state the plaintiff’s cause of action from
where his claim is based. (see Yulo v. Francisco, SP-
09954, September 24,1986).

b. Counterclaim – is the complaint of the

defendant against the plaintiff. It partakes of the nature
of a complaint and/or cause of action against the
plaintiff. (see Polinar v Sagarino, 57850-R, July 20,1979).
Counterclaims are of two kinds: the COMPULSORY
CONTERCLAIM which arises out of or is necessarily
connected with the transaction or occurrence that is
the subject matter of the opposition party’s claim, and
the PERMISSIVE COUNTERCLAIM which does not arise or
is not necessarily connected with the transaction or
occurrence that is the subject matter of the opposing
party’s claim. (see University Publishing Co. v Yatco,
27491-R, August 18,1960).

c. Cross-claim – is a claim interposed by a

party against a co-party to enable the former to recover
from the latter whatever he might be liable to pay to the
plaintiff. (see Republic v. Bisaya Land Transanction Co.,
81 SCRA 26).

d. A third (fourth, etc.)-party complaint – is a

claim that a defending party may, with leave of court,
file against a person not a party to the action, called the
third (or fourth, etc.)-party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of
his opponent’s claim.

e. Intervention – is a remedy to allow a third

person to enter into the action, with the court’s
permission, if he has legal interest in the matter in
litigation.

3. Parts of Pleading

a. Caption – the caption sets forth: a) the

name of the court, b) the title of the action, and c) the
court docket number, if assigned and d) the designation
of the pleading. In the title of the action, the names of
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the parties are indicated. They shall all be named in the
original complaint or petition. In subsequent pleadings
it is sufficient to include only the name of the first party
on each side with an appropriate indication.

b. Body of the Pleading – The body of the

pleading sets forth the type or kind of pleading filed
(e.g., Complaint, Answer), the statements of the party’s
claims or defenses, the relief or remedies prayed for, and
the date of the pleading.

The body of the pleading consists of:

i. Paragraphs – which
contain the allegations of the
party’s claims or defenses.
Each paragraph contains a
statement of a “single set of
circumstances,” as far as that
can be done with
convenience, and each are
numbered for easy
identification. A paragraph
may be referred to by its
number in the subsequent
pleadings.

ii. Headings – are

necessary when two or more
causes of action are joined.
The first shall be titled: “first
cause of action;” the second,
“second cause of action” and
so forth. In the answer, the
paragraphs are prefaced:
“answer to the first cause of
action” or answer to the
second cause of action” and
so forth.

iii. Relief and date – the

pleading shall specify the relief
or remedies sought and may
add a general prayer for “such
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 further or other relief as may be
deemed just and equitable.”
Every pleading shall be dated.

c. Signature and Address – The rules require

that every pleading must be signed by the party or his
lawyer. The address of the party or his counsel must be
stated.

Some legal consequences: As a rule, an

undersigned pleading produces no legal effect, but the
court may allow if it was due to inadvertence and not
for delay. A lawyer who a) deliberately files an unsigned
pleading; b)signs a pleading in violation of the Rules; c)
alleges scandalous or indecent matters; or d) fails to
promptly report to the court a change of his address,
shall be subject to appropriate disciplinary action.

d. Verification – The rule is pleadings need not

be under oath, verified or accompanied by sworn
statements. The exception is when the law or rule
provides otherwise. Pleadings covered by the rule on
Summary Procedure must be verified.

How is a pleading verified?

A pleading is verified by an affidavit stating that

the affiant has read the pleading and that the
allegations therein are “true and correct of his
knowledge and belief,” a pleading required to be
verified which contains a verification based on
“information and belief” or upon “knowledge,
information and belief” or lacks proper verification, shall
be treated as an unsigned pleading.

e. Certification against Shopping

Forum Shopping – is the act of filing the same suit

in different courts. It is an act of malpractice that is
proscribed and condemned as trifling with the courts
and abusing their processes. It is improper conduct that
tends to degrade the administration of justice.

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 The rules require the plaintiff or principal party to
certify under oath in the complaint (or other initiatory
pleading) asserting a claim for relief, or in a sworn
certification annexed and filed with the pleading that:
a) he has 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 his knowledge, no
such other action or claim is pending therein; b) if there
is such other pending action or claim, he must give the
complete statement of the present status thereof; and
c) if he should learn that the same or similar action or
claim is filed or pending, he shall report that fact within
five (5) days to the court where the complaint (or
initiatory pleading) is filed.

Effect of failure to comply.

Failure to comply with the requirement for

certification against forum shopping shall not be curable
by mere amendment of the complaint or other initiatory
pleading but shall be a ground for the dismissal of the
case, upon motion and after hearing, without prejudice
to the re-filing of the case, unless otherwise provided.

The submission of a false certification or non-

compliance with any of the undertakings shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
acts of the party or his lawyer clearly constitute willful
and deliberate forum shopping, the same shall be a
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as cause for
administrative sanctions.

4. Rule on Liberality in Construction of Pleadings

Pleadings are liberally construed. Even if a complaint in

intervention is titled “Motion”. It can still be admitted as such
complaint under the rule of liberal construction of pleadings. The rules
of court procedure shall be “liberally construed” so as to “promote
their objective of securing a just, speedy and inexpensive disposition
of every action and proceeding.”

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 5. Exceptions to the Rule on Liberality

a. When the uncertainty and ambiguity in the

allegations are systematically utilized as a tactic to trap
and confuse the adverse party.

b. When the allegations are so framed that

they are so vague and uncertain as to leave the court
guessing as to what the pleader wants.

c. When from the inadequacy of the

allegations it appears that the pleader is suppressing
facts material to the disposition of the case.

d. When the allegations are not in

accordance with, or are violations of, orders of a court.

e. When the allegations are intemperate,

derogatory or false.

Offensive or intemperate language may be expunged from the records.

B. MOTION

A motion is an application for relief other than by a pleading. It is a request

made to a judge for an order – not part of the judgment – directing some act to
be done in favor of the applicant. All motions must be in writing except those
made in open court, and shall state: a) the relief sought to be obtained; b) the
grounds upon which the motion is based; and c) if required by the rules or
necessary to prove the facts alleged, shall be accompanied by supporting
affidavits and other papers.

1. Kinds of Motion

a. Ex Parte – an application made to the court in the

absence and usually without the knowledge of the other party. This
motion may be acted upon without need of prior hearing as it is
based on the assumption that the rights of the adverse party would
not be prejudiced by the ruling. Ex parte motions are however an
exception. The rule requires motions to be heard with notice to the
other party at least 3 days before the date of hearing.

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 b. Litigated – one made notice to the other party giving
that party opportunity to comment or oppose the motion. Every
written motion shall be set for hearing by the applicant; the notice of
the hearing shall be served ensuring its receipt by the other party at
least 3 days before the date of hearing unless the court for good
cause sets the hearing on shorter notice.

c. Motion of Course – a motion for relief to which the

moving party is entitled as a matter of right and not of discretion on
the part of the court and which requires no investigation of the truth
of any allegation or suggestion on which it is founded.

d. Pro Forma – pro forma motion is literally, a motion in form

only. It is one which has the form but not the substance of a motion
and is resorted solely to gain time or to delay the proceedings. A
motion for reconsideration is pro forma when it does not specify the
findings or conclusions in the judgment which are not supported by
evidence or which are contrary to law making express reference to
the pertinent evidence or legal provisions.

e. Special Motion – a motion is directed to the discretion of

the court and usually involves an investigation of the facts on which
the application is predicated.

C. Brief

A brief, also called “memorandum of law,” is a document presented to the

appellate court arguing why the reviewing court should affirm or reverse the lower
court’s decision, as the case may be. The brief establishes the legal argument for
the party based on legal precedent (citing the controlling cases) or reliance on
the law and other authorities.

1. Contents of Appellant’s Brief

a. A subject index of the matter in the brief with a digest of

the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited.

b. An assignment of errors which shall be separately,

distinctly and concisely stated without repetition and numbered
consecutively.

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 c. Under the heading “Statement of the Case,” a clear
and concise statement of the nature of the action, a summary of the
proceedings, the appealed rulings and orders of the court, the
nature of judgment and any other matters necessary to an
understanding of the nature of controversy, with page references to
the record.

d. Under the heading “Statement of Facts,” a clear and

concise statement in a narrative form of the facts admitted by both
parties and those in controversy, together with the substance of the
proof relating thereto in sufficient detail to9 make it clearly intelligible,
with page references to the record.

e. A clear and concise statement of the issues of fact or

law to be submitted to the court for its judgment.

f. Under the heading “Argument,” the appellant’s

arguments on each assignment of error with page references to the
record. The authorities relied upon shall be cited by the page of the
report at which the case begins and the page of the report on which
the citation is found.

g. Under the heading “Relief,” a specification of the order

or judgment which the appellant seeks; and

h. In cases not brought up by record on appeal, the

appellant’s brief shall contain, as an appendix, a copy of the
judgment of final order appealed from.

2. Contents of Appellee’s Brief

a. A subject index of the matter in the brief with a digest of

the arguments and page references, and a table of cases
alphabetically arranges, textbooks and statutes cited with
references to the pages where they are cited.

b. Under the heading “Statement of Facts,” the appellee

shall state that he accepts the statement of facts in the appellant’s
brief, or under the heading “Counter-Statement of Facts,” he shall
point out such insufficiencies or inaccuracies as he believes exist in
the appellant’s statement of facts with references to the pages of
the record in support thereof, but without repetition of matters in the
appellant’s statement of facts; and

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 c. Under the heading “Argument,” the appellee shall set
forth his arguments in the case on each assignment of error with
page references to the record. The authorities relied on shall be cited
by the page of the report at which the case begins and the page of
the report on which the citation is found.

3. Significance of the Brief

The brief is without doubt the lawyer’s single best opportunity to persuade
the appellate court. As oral arguments are rare in the appellate level, the Court
of Appeals and the Supreme Court decide based on the briefs and arguments
presented. Briefs are sometimes called the “most refined of legal conversation”
and represents the “pinnacle of the lawyer’s craft.” Its organization, presentation,
argumentation, and writing style must be excellent.

4. Suggestions of the Brief

a. Strict adherence to the appellate rules of procedure.

The rules are designed to give the court the best opportunity to
function effectively and efficiently. The rules contain clear
suggestions how the courts want things done before them. Careless
or willful disregard of the rules may indicate two things: either the
lawyer is too inexperienced (or too young) for the court to rely on, or
he does not respect the court enough to follow its rules. The former
smacks of incompetence, the latter or arrogance. Either way the
court would not think highly of such lawyer.

The following are the appellate rules in the 1997 Rules in

Civil Procedure:

Rule 40 – Appeal from Municipal Trial

Courts to the Regional Trial Courts

41 – Appeal from the Regional Trial

Courts

42 – Petition for Review from the

Regional Trial Courts to the Court of
Appeals (Appeals from RTC decision
rendered in the exercise of its Appellate
jurisdiction)

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 43 – Appeals from the Court of Tax
Appeals and Quasi-Judicial Agencies to the
Court of Appeals

44 – Procedure in the Court of

Appeals in ordinary appealed cases

45 – Appeal by certiorari to the

Supreme Court

b. Each of the required elements in a brief must be seen as

an opportunity to persuade.

c. Research. Begin your research by reading the cases that

the court a quo citied in its decision or order.

d. Organize your brief. It is preferable to make a detailed

outline of the things you want to be included in your brief. These
include your issues, main arguments, cases and authorities cited.

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