Effective Legal Writing: Preparing & Drafting Pleadings & Legal Docs, Study notes of Law

Download Effective Legal Writing: Preparing & Drafting Pleadings & Legal Docs and more Study notes Law in PDF only on Docsity! Legal Writing: Best Practices in the Preparation and Drafting of Pleadings and Other Legal Documents ATTY. VICTORIA V. LOANZON Developing One’s Writing Style In the preparation of legal documents, every effort must be made to approximate what communication experts accomplish. Attention to prose style is just as important as attention to legal doctrine. Definition of Legal Forms 6. A declaration made under oath like an Affidavit of Desistance 7. A judicial affidavit in place of a direct testimony 8. Orders, resolutions, and decisions emanating from the court 9. A legal opinion on a specific query like liability for payment of taxes 1o. A case digest which may be a basis of a pleading Classes of Documents Sec. 19, Rule 132 of the Rules of Court classifies documents as either public or private, viz: Sec. 19. Classes of Documents – For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. (Emphasis supplied.) Rules on Effective Writing according to Prof. William Strunk, Jr. 1. Think first, then write. 2. Get to the point. 3. Use familiar words. 4. Omit unnecessary words. 5. Keep sentences short. 6. Shorten the paragraphs. 7. Use specific, concrete language. 8. Prefer the simple to the complex. 9. Be direct. 10. Use the active voice. Some Mechanical Rules for Preparing Legal Documents   Some Mechanical Rules for Preparing Legal Documents 1. The following words  are often put in ALL CAPS:  Names of people or businesses, organizations, etc.  Title of the instrument Header words of important paragraphs (e.g., “WHEREAS”) Headings of Contracts and Pleadings 2. Observe basic  grammar rules Correct grammar is essential because improper use of punctuation may change the meaning of the document. Simple subject-verb agreement must be observed. Some Mechanical Rules for Preparing Legal Documents 3. Check spelling of words  Misspelled words indicate a lack of professionalism. 4.   Numbers are often written in both English and Arabic numbers – Examples: P10,000.00; 100-meter distance 5. Include the page numbers for easy reference The first page is not numbered; all subsequent pages are numbered. BASIC RULES IN LEGAL WRITING (Legal Writing in Plain English by Bryan A. Garner, 2013) 1. Principles for all Legal Writing a. Framing your thoughts b. Phrasing your sentences c. Choosing your words 2. Principles for Analytical and Persuasive Writing a. Plan three parts: the beginning, the middle and the end. b. Use the “deep issue” to spill the beans on the first page. c. Summarize and do not over- particularize. BASIC RULES IN LEGAL WRITING (Legal Writing in Plain English by Bryan A. Garner, 2013) d. Introduce each paragraph with a topic. e. Bridge between paragraphs. f. Keep paragraphs short. g. Use footnotes instead of incorporating citations in the main body. h. Weave quotations deftly into the main body. i. Be forthright in dealing with counter arguments. BASIC RULES IN LEGAL WRITING (Legal Writing in Plain English by Bryan A. Garner, 2013) 3. Guiding Principles for Legal Writing a. Draft for an ordinary reader. b. Organize the laws which you seek to cite in the order of descending importance. c. Break down enumerations – set apart each of the elements. d. Prefer numerals for words – this puts more emphasis on a claim or the extent of the claim. The Basic Structure of a Pleading 1. Narrate the essential facts 2. View the facts in the context of the law. 3. State the reliefs prayed for based on facts and applicable law. Stages in Preparing Pleadings 1. Pre-writing: Preparing an Outline 2. Writing: Filling up the Outline with details 3. Post-writing: Reviewing the Pleading Basic Arguments in Pleadings 1. The litigants may argue on the factual antecedents. 2. A party may claim that one cited a wrong law to apply to the facts. 3. A party may concede that the right law may have been cited but it was misinterpreted. Parts of a Pleading (Rule 7, Civil Procedure) Section 1. Caption. —The caption sets forth – - the name of the court - the title of the action, and - the docket number, if already assigned. Parts of a Pleading (Rule 7, Civil Procedure) Section 2. The body. —The body of the pleading sets forth – - its designation, - the allegations of the party’s claims or defenses, - the relief prayed for, and - the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. Parts of a Pleading (Rule 7, Civil Procedure) (b) Headings. -  1. On the part of the petitioner, when two or more causes of action are joined - Start with the first cause of action, the second of action, and so forth. 2. On the part of the respondent, the answer to the causes of action shall be prefaced by the words answer to the first cause of action or answer to the second cause of action and so on. Relief - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. Date. - Every pleading shall be dated. Parts of a Pleading (Rule 7, Civil Procedure) Section 4. Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath or verified. A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading, and shall allege the following attestations: (a) The allegations in the pleading are true and correct based on his or her personal knowledge, or based on authentic documents; Parts of a Pleading (Rule 7, Civil Procedure) (b) The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (c) The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery. The signature of the affiant shall further serve as a certification of the truthfulness of the allegations in the pleading. A pleading required to be verified that contains a verification based on information and belief, or upon knowledge, information, and belief, or lacks a proper verification, shall be treated as an unsigned pleading. (4a) Parts of a Pleading (Rule 7, Civil Procedure Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore 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; Scope of Use of a Judicial Affidavit Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC; (2) The Regional Trial Courts and the Shari'a District Courts; Scope of Use of a Judicial Affidavit (3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule. Contents of a Judicial Affidavit Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; (b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath and that he may face criminal liability for false testimony or perjury; Basic Parts of a Contract A contract has the following basic parts: 1. Parties to the Contract - This includes the full names of parties (natural persons or juridical persons). For natural persons, the age, civil status, and residence must be included. For a juridical entity, the authorized representative must be named, and the corporate address and the fact of registration must be stated. Basic Parts of a Contract 2. Preambular Paragraphs – This must state the purpose of the contract. 3. Terms and conditions – This portion of the contract must clearly define the terms and conditions of the contract. This includes the obligations and warranties of the parties to the contract. 4. Consideration or Terms of Payment - An essential part of a contract is consideration. As a general rule, money is the consideration of any contract. This should include how much money is being paid when it is due, and how it will be paid. Basic Parts of a Contract 5. Dispute Resolution Clause – In case of breach of the contract such as default in terms of the payment or non-compliance with the warranties, it is best to include how parties may settle the controversy. This will help avoid costly legal battles if a dispute arises. 6. Signatures of Parties and Witnesses – To bind the parties, the contract must be signed. When required, witnesses must likewise sign. 7. Notarization – If parties want the contract to bind “the world,” the same must be notarized