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PREPARATION OF TRIAL MEMORANDUM AND LEGAL OPINION

By: Prof. Jaime Bilan Montealegre
I. Trial Memorandum. A. Concept Generally, a trial memorandum outlines the legal arguments supporting or opposing the position of a party to a case. It includes the explanation of the parties understanding of the facts of the matter, the law or laws they believe shall determine the outcome of the trial, and the conclusion they believe the judge should reach. Its purpose is to persuade the court that a party is entitled to a judgment in its favor. The Trial Memorandum should explain why a particular law applies and how each fact relates to the law. A trial memorandum may be likened to or probably equivalent to the oral summary of the cases by the counsels in trials by jury. In this jury system of hearing and deciding cases, trials are usually followed by oral arguments from both sides. Counsels orally sum up their cases and try to persuade the jury with the evidence and arguments to accept their clients point of view. In the Philippines, since there is no trial by jury but rather cases are decided by a single person, the judge, counsels do not have the chance to orally sum up their cases and try to persuade the judge with the evidence and arguments to accept their clients point of view. Thus, at the end of the trial, the counsels sum up their cases, not by oral arguments, but by what is called the trial memorandum. B. Parts of a Trial Memorandum In no particular order, a Trial Memorandum should contain the following parts: 1. The Heading or Case Caption.

(In our courts or quasi judicial agencies, there is already a structure for the heading or the caption.) 2. The Statement of the Nature of the Action or Case and the proceedings that the court had done in the case.

2.1. The statement of the nature of the action or case is simply a statement of what the case is all about. It is the statement of the legal dispute between the parties to a case. - In civil cases, there is a legal dispute when a party to a case complains that his right protected by law, or which violation the law punishes, is violated by the other party who denies such a violation. In criminal cases, there is legal dispute when the State claims that the accused violated its right to enforce the laws and the accused would deny it during the arraignment. 2.1 To some lawyers, they include in this section the question of law or fact that the parties present for resolution and which the judge should decide or what is referred to as the issues. To the others, of course, the question of law or fact that the parties present for resolution and which the judge should decide (issues) is treated as a separate part of the trial memorandum. In any case, the question or issue should include a few of the essential facts of the case, but should be very brief and concise. 3. The Brief Answer to the question or issues posed.

This part serves as the thesis of the Memorandum and should briefly analyze the reasons why you believe the judge should rule in your favor. It summarizes the law that should be used to analyze the case. 4. The Statement of Facts. This part details all of the facts that are material to the case. Here are some guides in stating the facts of the case: a. The facts should be outlined briefly. Opinions and/or conclusions of the lawyer preparing the trial memorandum should not be included. Stated otherwise, the lawyer should avoid editorializing in the statement of facts. Instead, the facts should be presented in a neutral way similar to how a reporter might describe an event. b. The Statement of Facts is normally prepared by first writing out a rather complete statement of facts. At the start, the statement of facts should be over inclusive, rather than under inclusive. Moreover, the facts should be written chronologically. This will enable the lawyer to see some relationships that were not imagined and to see clearly how or why the parties acted as they did.

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c. Thereafter, the lawyer preparing the trial memorandum can now cut down on the facts, so as to eliminate those that are not material or do not provide helpful background. The factual presentation can also be reorganized so as to make it easier to understand. 5. The Discussion of the Arguments.

Each legal argument outlines the issue of law, or fact the judge must decide, the rule that should be used to determine the issue of law or fact, a decision about how the rule should be applied to the facts of the case, and the conclusion summarizing the argument. In other words, the discussion for each legal argument should contain the Issue, Rule, Application and Conclusion. The issue is the brief statement of the dispute; the Rule is the sections that contains any elements or statutory requirements that must be proven; the Application is how the facts support or oppose the particular Rule, which usually starts with the word In the instant case or Here; the conclusion is the brief sentence summing up what was said. 6. The Summary of the Trial Memorandum.

This part contains the conclusion that reiterates the major legal arguments, and the facts of the case that supports your point of view. C. Sample Trial Memorandum for the Plaintiff (Sample Essay Problem 1 given by the Chairman of the 2011 Bar Examinations Committee)

The Heading or Case Caption. (This should not be your concern in this Bar Examinations because the Instruction for the Essay Examinations specifically directs you to omit the case caption. But as earlier stated, in our courts or quasi judicial agencies, there is already a structure for the heading or the caption.) MEMORANDUM FOR THE PLAINTIFF PLAINTIFF, by the undersigned counsel, most respectfully submits this Memorandum as follows: Nature of the Case This is a case for the annulment of the contract of sale with damages involving a one bedroom condominium unit covered by a Certificate of Title in the name Mr. Geronimo, the plaintiffs husband, and which was bought by him while he was still single. Plaintiff claimed that her right over the joint administration and enjoyment of the one bedroom condominium unit was violated when it was sold by her husband to the defendant without her consent. Defendant, on the other hand, denies the claim on the argument that the sale had already been consummated. Facts 1. The condominium unit, which is the object the Deed of Sale sought to be annulled, is covered by a Certificate of Title in the name of Mr. Geronimo, plaintiffs husband. Mr. Geronimo bought the property in 2001 and brought it into the marriage when he and the plaintiff were married in 2006. 2. In April 2009, the plaintiff offered the condominium unit for sale to the defendant for P2 million and to which offer, the latter replied that he will call back once the deed of sale and managers check were ready. 3. In May 2009, the plaintiff left for the United States without the defendant calling her back as promised. But while the plaintiff was in the United States, defendant called plaintiffs husband instead. Without the knowledge of the plaintiff, her husband signed the deed of sale of the condominium unit and accepted the managers check of the defendant. 4. In June 2009, plaintiff was informed by her husband that he already signed the deed of sale and accepted the managers check of the defendant. Before plaintiff received this information, however, she had already changed her mind and decided not to sell the condominium unit. 5. Plaintiff offered to return the consideration for the sale of the condominium unit but the defendant refused. 6. Thus, this case for annulment of contract with damages. Issues

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The issues to be resolved in this case are as follows: 1. Whether or not plaintiffs right over the joint administration and enjoyment of the one bedroom condominium unit was violated when this was sold by her husband to the defendant without her consent and thus, has a basis to have the contract of sale annulled. 2. Whether or not plaintiff is entitled to damages. Arguments PLAINTIFF SUBMITS THAT THE CONDOMINIUM UNIT, WHICH IS THE OBJECT OF THE DEED OF SALE SOUGHT TO BE ANNULED, IS A COMMUNITY PROPERTY AND THUS, ITS SALE WITHOUT PLAINTIFFS CONSENT, ENTITLES HER TO HAVE THE SALE ANNULLED. The condominium unit, which is the object the Deed of Sale sought to be annulled, is a community property, having been bought by the plaintiffs husband in 2001 and brought into the marriage when the plaintiff and her husband were married in 2006. This is pursuant to Article 76 of the Family Code, the law in effect at the time of the marriage between the plaintiff and her husband, which provides that in the absence of any property regime agreed upon by spouses, the regime of absolute community of property, which consists of all the property owned by the spouses at the time of the celebration of the marriage, shall govern their marital property relationship. The administration and enjoyment of the condominium unit being a community property is governed by first paragraph of Article 96 of the Family Code which provides that these shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. While Article 96 of the Family Code speaks only of the administration and enjoyment of the community property, plaintiff submits that the power to dispose of the community property is within the ambit of the phrase administration and enjoyment. This is for the reason that in the second paragraph of Article 96, the assumption of powers of a spouse has been limited and restricted so as not to include the power of disposition, alienation and encumbrance. This implies, therefore, that the power to administer is broadly treated under the first paragraph of Article 96 but may be limited by law as in the case of the second paragraph of the said Article. In the instant case, the sale of the subject condominium unit, as shown by the fact that the Deed of Sale thereof was signed only by plaintiffs husband, is one where the latter, without suffering from any incapacity whatsoever, encumbers, alienates or disposes a community property without the consent of the other spouse who is likewise capacitated. The transaction is thus within the contemplation of the first paragraph of Article 96 of the Family Code. That the encumbrance, alienation or disposition of the community property was made without the consent of the plaintiff is apparent. While it is true that it was the plaintiff who made the offer to sell the subject condominium unit to the defendant, the acceptance by the latter of the offer to sell was not known to the former at the time that the latter handed the managers check to the plaintiffs husband and at the time plaintiffs husband signed the deed of sale of the subject condominium unit. There is thus no consent yet by the plaintiff to speak of because there was no manifestation of the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract, pursuant to Article 1319 of the Civil Code. Moreover, defendants testimony that he will call back once the deed of sale and managers check were ready all the more confirms that there was no meeting of the minds yet because the acceptance was not absolute and thus it is tantamount to a qualified acceptance which in effect constitutes a counter offer pursuant Article 1319 of the Civil Code. As held by the Supreme Court in the case of Malbarosa v. Court of Appeals (G.R. No. 125761, April 30, 2003, 402 SCRA 168), the acceptance of an offer must be made known to the offeror. Unless the offeror knows of the acceptance, there is no meeting of the minds of the parties, no real concurrence of offer and acceptance. Moreover, the offeror may withdraw its offer and revoke the same before acceptance thereof by the offeree. The contract is perfected only from the time an acceptance of an offer is made known to the offeror. In the instant case, it is clear that the plaintiff had revoked the offer before she came to know of the acceptance of the said offer by the defendant. Thus, considering that the encumbrance, alienation and disposition of the common property was made by the plaintiffs husband without the consent of the plaintiff, pursuant to Article 96 of the Family Code, the plaintiff has all the right to go to court to seek the proper remedy which includes the annulment of the contract. Going now into the issue of whether the plaintiff is entitled to damages, plaintiff submits that she is. The second paragraph of Article 2201 of the Civil Code provides that in case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non performance of the obligation. In the instant case, it is apparent that the encumbrance, alienation and disposition of the common property was

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made by the plaintiffs husband without the consent of the plaintiff. Despite this, the defendant continued with the sale. It cannot thus be said that the defendant acted in bad faith in buying the subject condominium unit. Thus, his wanton attitude in refusing to return the unit would make him liable for all damages which may be attributed to the non performance of his obligation to return. In conclusion, plaintiff is entitled to the annulment of contract with damages for the sale of the subject one bed room condominium unit. PRAYER WHEREFORE, premises considered, it is most respectfully prayed that the this Honorable Court renders judgment: (a) annulling the contract of sale involving the one bed room condominium unit covered by a Certificate of Title in the name of Mr. Geronimo and (b) ordering the defendant to pay the plaintiff damages in the aggregate amount of P______. OTHER REILEFS, just and equitable under the premises, are likewise prayed for. City of ______ for the City ______. (Date) Counsel Address D. Sample Trial Memorandum for the Defendant (Sample Essay Problem 1 given by the Chairman of the 2011 Bar Examinations Committee)

The Heading or Case Caption. (This should not be your concern in this Bar Examinations because the Instruction for the Essay Examinations specifically directs you to omit the case caption.)

MEMORANDUM FOR THE DEFENDANT DEFENDANT, by the undersigned counsel, most respectfully submits this Memorandum as follows: Nature of the Case This is a case for the annulment of the contract of sale with damages involving a one bedroom condominium unit covered by a Certificate of Title in the name Mr. Geronimo, the plaintiffs husband, and which was bought by him while he was still single. Plaintiff claimed that her right over the joint administration and enjoyment of the one bedroom condominium unit was violated when it was sold by her husband to the defendant without her consent. Defendant, on the other hand, denied the claim on the argument that the sale had already been consummated. Facts 1. The condominium unit, which is the object the Deed of Sale sought to be annulled, is covered by a Certificate of Title in the name of Mr. Geronimo, plaintiffs husband. Mr. Geronimo bought the property in 2001 and brought it into the marriage when he and the plaintiff were married in 2006. 2. In April 2009, the plaintiff offered the condominium unit for sale to the defendant for P2 million. The defendant accepted the offer and told the plaintiff that he will call back once the deed of sale and managers check were ready. 3. Defendant, through his lawyer, immediately prepared the Deed of Sale and prepared a managers check for P2 million. Thereafter, in June 2009, defendant met with plaintiffs husband, Mr. Geronimo who accepted the managers check and signed the Deed of Sale. 4. In September 2009, plaintiff informed the defendant that she will not be selling the condominium unit anymore and offered to return the consideration. 5. Defendant refused because the sale had already been consummated. 6. Thus, this case for annulment of contract with damages. Issues

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The issues to be resolved in this case are as follows: 1. Whether or not there is legal basis for the plaintiff to have the Contract of Sale of the condominium unit annulled.

2. Whether or not defendant is liable to the plaintiff for damages. Arguments DEFENDANT SUBMITS THAT THE CONTRACT OF SALE OF THE CONDOMINIUM UNIT HAD ALREADY BEEN CONSUMATED AND THUS, THERE IS NO LEGAL BASIS FOR THE PLAINTFF TO HAVE IT ANNULLED. The Supreme Court had the occasion to rule in the case of Abalos vs Macatangay, Jr. (G.R. No. 155043. September 30, 2004, 439 SCRA 649) that a contract of Sale, being essentially consensual, is perfected at the moment there is meeting of the minds upon the thing which is the object of the contract and upon the price. However, ownership of the thing sold shall not be transferred to the vendee until actual or constructive delivery of the property. In the instant case, the plaintiff had offered to sell the one bedroom condominium unit, the object of the contract, to the defendant for a definite price of P2 million, and which offer the defendant had readily accepted. Thus, at the time that the defendant accepted the offer, notwithstanding that there was no payment yet and the contract of sale has yet to be signed, all the elements of a perfected contract were already present. Moreover, the title of the condominium unit had already been transferred in the name of the defendant, a clear indication that the ownership of the condominium unit had been transferred to the defendant. This all the more confirms that the contract of sale had not only been perfected but is already consummated. The contract of sale of the condominium unit having been perfected and consummated, then there is no basis for the plaintiff to have it annulled. Further, there is no basis for the plaintiff to claim that the one bedroom condominium unit was sold without her consent thus, violating her right over the joint administration and enjoyment of a community property, a basis to have the contract of sale annulled under Article96 of the Family Code. To begin with, as earlier discussed, the consent of the plaintiff was not vitiated. Moreover, Article 96 of the Family Code indicates only of administration and enjoyment of community property and not disposition thereof. Thus, the disposition of community property could not have been contemplated following the rule that what the law does not include, it excludes. This adds to the fact that there is no basis for the plaintiff to have the Contract of Sale annulled. Consequently, plaintiffs claim for damages has no leg to stand on. In conclusion, plaintiff is not entitled to the annulment of contract with damages for the sale of the subject one bed room condominium unit. PRAYER WHEREFORE, premises considered, it is most respectfully prayed that this Honorable Court renders judgment dismissing the instant complaint for utter lack of merit. OTHER REILEFS, just and equitable under the premises, are likewise prayed for. City of ______ for the City ______. (Date) Counsel Address II. Legal Opinion A. Concept/Purpose The purpose of a legal opinion is to analyze a legal problem and give an objective legal opinion on that problem. Usually, a legal opinion is not an advocacy paper. Although the purpose is to reach a legal conclusion, the arguments presented must be objective. In preparing a legal opinion, it must be explained why certain laws apply but the legal opinion must not attempt to convince the client of the absolute correctness of the conclusion. Instead, it should acknowledge the weakness of the argument.

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B. Steps in Preparing a Legal Opinion

In actual practice, the following are necessary steps in the preparation of a legal opinion: 1. 2. Make sure that the records of the case are complete. Write down the facts.

3. Research the law. The law should include those that are favorable to the clients position and those that are unfavorable. Stated otherwise, the legal opinion must address the law that is helpful and harmful to the clients case. 4. Chart the law against the facts. This means that you have to list each essential fact or event and identify the main legal element that pertains to the event. 5. 6. 7. Identify the issues. Prepare the outline which should provide an explanation of how each element will be applied to each fact. Write the legal opinion. This should, of course, include editing of the legal opinion.

C. Parts of a Legal Opinion A legal opinion is made up of: 1. Heading. This simply includes the date and the person for whom the legal opinion is intended. For purposes of the Bar Examinations, however, this should not be your concern because the Instruction for the Essay Examinations specifically directs you to omit the case caption. 2. The Questions or Issues Presented. These encompass both the legal and factual elements that must be analyzed. Legal and factual components should be incorporated. 3. Answers.

4. Statement of Facts. This should tell the story that gave rise to the legal question, but should include only those facts that are necessary for the legal analysis. Moreover, legal terms or legal conclusions should not be incorporated in the facts. If there are disputed facts, they should be clearly identified with modifying terms such as alleged, stated, or testified. Bias or distortion should be avoided and thus, facts that are both favorable and unfavorable should be mentioned. 5. The Discussion. This must provide objective yet convincing support for the conclusion. Every section of the Discussion must contain five elements: Answer, Issue, Rule, Analysis, and Conclusion. 6. Conclusion. This should provide a brief summary of the facts and law required in the Discussion.

D. SAMPLE LEGAL OPINION (Sample Essay Problem 3 given by the Chairman of the 2011 Bar Examinations Committee) Date: To: Subject: Judy Ann Sanchez Legal Opinion on the possibility of bringing a lawsuit against Mc.Bee as a result of the injuries sustained after falling from the food chains staircase.

Dear Ms. Sanchez: This answers your query about the possibility of you bringing a lawsuit against Mc.Bee as a result of the injuries you sustained after falling from the food chains staircase. Based on the interview with your daughter, Mara Clarita, the antecedent facts are as follows:

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On 18 October 2010, while you were at McBee Metropark Branch, the McBee mascot, who was so big and hurrying down the stairs, caused you to lose your balance and miss four steps while you were on your way upstairs, and as a consequence, you suffered injuries in your head, shoulders, back and buttocks. The store manager, so as not waste time to bring you to the nearest hospital, used her own car instead of waiting for an ambulance. Because of the incident, you suffered pain and you were greatly inconvenienced by the weekly therapy you were undergoing. The management of McBee Metropark Branch paid for the hospital bills. The demand of your daughter in the aggregate amount of Pesos: One Hundred Thousand (P100,000.00) was, however, ignored through a letter dated 15 December 2010, although the management assured you that it will continue to shoulder all expenses related to your weekly physical therapy until such time that you are fully restored to your previous health. From the foregoing facts, it is apparent that the management of McBee Metropark Branch acknowledged its liability to you for the actual damages as a consequence of the act or omission of its mascot. This is evident from its acts of paying for the hospital bills and its assurance to you to shoulder all expenses related to your weekly physical therapy. I believe that McBee Metropark Branch could not have done otherwise because Article 2180 of the Civil Code expressly provides that the owners and managers of an establishment or enterprises are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. The only question then that should be answered is whether McBee Metropark Branch may be held liable for damages for the pain and inconvenience that you suffered as a result of the incident. In this regard, it is my opinion that the question cannot but be answered in the positive on the basis of the following: 1. Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre existing contractual relation between the parties, is called a quasi delict and is governed by the provisions of this Chapter. It is expressly provided in Article 2219 of the Civil Code that moral damages may be recovered in analogous cases which include quasi delicts causing physical injuries. Moreover, Article 2217 of the Civil Code provides that moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission. Based on the foregoing express provisions of the law, there is no doubt that you are entitled to moral damages because it is an undeniable fact that you suffered pain and inconvenience as a result of the incident. 2. Considering that there is legal basis for you to be entitled to recover moral damages, you may likewise be entitled to exemplary damages pursuant to the pronouncement of the Supreme Court in the case of B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618) which provides thus: Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. In quasi delicts, exemplary damages may be granted if the defendant acted with gross negligence. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. Please take note, however, that to be entitled to exemplary damages, you must show to the court that you are entitled to moral damages before the court may consider that you are entitled to exemplary damages. As shown by the foregoing, it is clear that you have all the legal basis to file a lawsuit against Mc.Bee as a result of the injuries you sustained after falling from the food chains staircase. I should, however, emphasize at this juncture that while existing laws and jurisprudence may support your action, there is no reason why McBee, on its part, may not interpose the defense that they should not be held liable pursuant to the express provision of Article 2180 of the Labor Code which provides that its responsibility shall cease if they could prove that it observed all the diligence of a good father of a family to prevent the damage. As your lawyer, therefore, I recommend the filing of a civil suit for damages against McBee Metropark Branch for damages resulting from the incident that happened on 18 October 2010. But before the filing of the law suit, I would likewise

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recommend the sending of another demand letter to McBee, this time by your counsel, clearly indicating the damages sought for more so that its letter dated 15 December 2010 did not indicate a denial of your demand for damages. For your convenience, I have already attached herewith a draft of the demand letter. If you have further query, please do not hesitate to call me.

Very truly yours, (Counsel) Demand Letter

Date: ______ MCBEE METROPARK BRANCH (ADDRESS) Attention: TED PALLONE Operations Manger

Subject: Demand for Damages Gentleman: We write in behalf of our client Judy Ann Sanchez who acknowledged receipt of your letter dated 15 December 2010. While we appreciate your assurance to continue to shoulder all expenses related to our clients weekly physical therapy, you, however, ignored in your letter her demand for damages for the pain and inconvenience she suffered as a result of the negligence of your employee. Let this, therefore, serve as our final demand for you to pay our client the amount of Pesos: One Hundred Thousand (P100,000.00) as earlier demanded. Should we not hear from you within the period of five (5) days, we shall be constrained to file the appropriate case to protect our clients interest. Please give this your preferential attention. Very truly yours, (Counsel)

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