1 PERSUASIVE LEGAL ANALYSIS.ppt

7/27/2019 1 PERSUASIVE LEGAL ANALYSIS.ppt

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PERSUASIVE LEGAL ANALYSIS


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1. PERSUASIVE LEGAL ANALYSIS

A persuasive document attempts to convince a

third party to decide in favour of the writersclient.

The third person may be a judge or arbitrator

before whom the lawyer argues to win a case oran opposing party before whom the lawyer

sends a demand letter.


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Persuasive legal writing addressed before a

judge are called PLEADINGS, MOTIONS AND

BRIEFS. Persuasive documents, much like an object

inter-office memoranda, may state legal

issues, cite authorities and invoke precedents. The difference is in persuasive documents the

author will argue in favour of only one

approach to resolving the dispute. A neutralstand is not expected.


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1. PLEADINGS

--are the written statements of the respectiveclaims and defenses of the parties submitted to

the court for appropriate judgement.

--are the written declarations of affirmation on

one side and denial by the other.


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Purpose

to define for the court the issues of laws or

fact raised by the party. As pleadings are the basis as to what evidence

would be presented in court, it is important

that the statements written there are definite. Bare statements in a pleading which merely

aver that acts were done in bad faith without

stating the facts showing that the acts weredone in the manner alleged, do not establish

any right or cause of action.


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Elements of a Cause of Action

1. a right in favor of the plaintiff arising from law,

contract, or by other means creating it;

2. an obligation on the part of the named defendant

to respect or not to violate such right; and

3. an act or omission on the part of such defendantviolative of the right of the plaintiff or constituting

a breach of contract or other obligation of the

defendant to the plaintiff causing injury for which

the latter may maintain an action for recovery ofdamages.


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Kinds of Pleading

The complaint, counterclaim, cross-claim,

third (fourth,etc)-party complaint, or thecomplaint-in-intervention assert the claims of

a party.

The defenses of the other party are alleged inthe answer to the pleading asserting a claim

against him. In return, the answer may be

responded to by a reply.


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Parts of Pleading (Rule 7 of the Rules of Court)

a) the caption;

b) body of the pleading;

c) signature and address;

d) verification; and

e) certification against forum shopping.


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Title of the action-- the names of the parties

are indicated.

Must be named in the original complaint orpetition.

In subsequent pleadings --sufficient to include

only the name of the first party on each sidewith an appropriate indication (e.g., adding

after the name of the first party the phrase et

al.,meaning andothers).


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EXAMPLE OF CAPTION (Original Complaint)

Republic of the Philippines

Municipal Trial CourtNational Capital Judicial Region

Paranaque City

Branch I

Claudine Santiago, Civil Case No. 1234

Plaintiff, For: Forcible Entry

--versus--

Raymart Barreto,

Defendant.

X---------------------------------X


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EXAMPLE OF CAPTION

(On Appeal to the Court of Appeals)

Republic of the Philippines

Court of Appeals

Manila

Claudine Santiago, CA-G.R. SP No. 13009Petitioner-Appellant,

--versus-- For: Petition For Review

Under Rule 42

Raymart Barreto, of the Rules of CourtRespondent-Appellee.

X-------------------------------------------X

Petition For Review 42 Under of the Rules of Court


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EXAMPLE OF CAPTION

(On Appeal to the Court of Appeals)

Republic of the PhilippinesSupreme Court

Manila

Claudine Santiago, G.R. SP No. 13009

Petitioner,

--versus--

Raymart Barreto,

Respondent.X-------------------------------------------X

Petition For Review On Certiorari Under Rule 45 of the Rules of

Court


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B. Body of the Pleading- sets forth the type or kind of

pleading filed (e.g., Complaint, Answer), the statements

of the partysclaims or defenses, the relief or remedies

prayed for, and the date of the pleading.

The body of the pleading consists of:

Paragraphs which contain the allegations of the

partysclaims 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 easyidentification.

A paragraph may be referred to by its number in the

subsequent pleadings.


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Headingsare necessary when two or more causes of

action are joined.

The first shall be titled: first cause of action; thesecond, 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.

Relief and datethe pleading shall specify the relief or

remedies sought and may add a general prayer for

such further or other relief as may be deemed just andequitable.

Every pleading shall be dated.


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COMPLAINT

The plaintiff, by counsel, unto this Honorable Court, respectfully

states:

1.The plaintiff is a Filipino citizen, of legal age, married, and a

resident of Unit 3128 Manila Executive Regency Condominium,

Manila;

2.The defendant is likewise a Filipino citizen, of legal age,

married, and a resident of Unit 3129 Manila Executive Regency

Condominium, Manila;

3.The plaintiff is the owner of a parcel of land located at 1234

Rizal Avenue, Forbes Park Subdivision, Makati City;

4.State the ultimate facts xxxxx


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FIRST CAUSE OF ACTION

5. That the plaintiff made several demands, both written and

verbal upon the defendant but the same fell on deaf ears, and to

date he refused to leave the subject premises.

SECOND CAUSE OF ACTION

1.XXX XXX

2.XXX XXX

WHEREFORE, the plaintiff respectfully prays that:

1.The defendant be ordered to leave the subject property and to

surrender its possession to the plaintiff;

2.That the defendant be made to pay the costs of suit;


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3. That damages in the amount of P100,000.00 be awarded to

the plaintiff.

Other reliefs just and equitable are likewise prayed for.

Signed this 29thday of December, 2012 in the City of Manila for

Makati City.


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C. Signature and Addresses

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.

A post office box address is not allowed.

The signature of the lawyer constitutes a certificate

by him that he has readthe pleading, and that to the

best of his knowledge, information and belief there

is good ground to support it. He likewise certifiesthat the pleading is not interposed for delay.


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Some legal consequences:

As a rule, an unsigned pleading produces no

legal effect, but the court may allow if it wasdue to inadvertence and not for delay.

A lawyer who a) deliberately files an unsigned

pleading; b) signs a pleading in violation of theRules; c) alleges scandalous or indecent

matters; or d) fails to promptly report to the

court a change of his address, shall be subjectto appropriate disciplinary action.


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EXAMPLE:

SHAINA A. CRUZ

Counsel for the Plaintiff5thFloor, Homey Building

345 Bataan Street, Palanan, Makati City

Roll of Attorneys No. 43050*

IBP No. 12356 January 5, 2012**PTR No. 67895 January 5, 2012**

MCLE Compliance No. III-297***

Email: [email protected]

Tel No. 778-1234

Mobile No. 0999-888-8888


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* Required by Bar Matter No. 1132

**Required by Bar Matter No. 287

***Required by Bar Matter No. 1922. Re:Recommendation of the Mandatory Continuing Legal

Education (MCLE) Board to Indicate in All Pleadings

Filed with the Courts the CounselsMCLE Certificate of

Compliance or Certificate of Exemption.

Failure to disclose the required information would

cause the dismissal of the case and the expunction of

the pleadings from the records.Took effect on 26 June 2008.


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MCLE Compliance

Resolution of the Supreme Court En Banc dated June 3, 2008:

Bar Matter No. 1922. - Re: Recommendation of the

Mandatory Continuing Legal Education (MCLE) Board to

Indicate in All Pleadings Filed with the Courts, the Counsels

MCLE Certificate of Compliance or Certificate of Exemption.

The Court Resolved, upon the recommendation of the

Committee on Legal Education and Bar Matters, to REQUIREpracticing members of the bar to INDICATE in all pleadings

filed before the courts or quasi-judicial bodies, the number

and date of issue of their MCLE Certificate of Compliance or

Certificate of Exemption, as may be applicable, for theimmediately preceding compliance period. Failure to disclose

the required information would cause the dismissal of the

case and the expunction of the pleadings from the records.


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A. VERIFICATION

The rule is pleadings need not be under oath,verified or accompanied by sworn

statements.

The exception is when the law or ruleprovides otherwise.

Pleadings covered by the rule on Summary

Procedure must be verified.


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HOW IS A PLEADING VERIFIED?

A pleading is verified by an affidavit that theaffiant:

has read the pleading

and

that the allegations therein are true and correct

of his personal knowledge or based on authentic

records.


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A pleading that is required to be verified but contains

a verification based only on information and

belief, or upon knowledge, information and

belief, is not properly verified and shall be treated

as an unsigned pleading.

It produces no legal effect, subject to the discretion

of the court to allow the deficiency to be remedied. But to merit the Court's liberal consideration,

petitioner must show reasonable cause justifying

non-compliance with the rules and must convince

the Court that the outright dismissal of the petition

would defeat the administration of justice.


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Absence of verification when required is not a

jurisdictional defect. It is just a formal defectwhich

can be waived.

Objection to such defect must, however, be raised at

the earliest possible opportunity.

It cannot be raised for the first time on appeal


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A. CERTIFICATION AGAINST SHOPPING

Forum shopping is the act of filing the same suit indifferent courts.

It is an act of malpractice that is proscribed and

condemned as trifling with the courts and abusing

their processes.

It is an improper conduct that tends to degrade the

administration of justice.


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An important component of a complaint or any other

initiatory pleading is the certificate of non-forum

shopping.

The rule requires that the plaintiff or principal party

certifies the complaint under oath or in a sworn

certification annexed thereto and simultaneously

filed therewith:1) 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;


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2) if there is such other pending action or claim, a

complete statement of the present status thereof, and

3) if he should thereafter learn that the same or similar

action or claim has been filed or is pending, he shall

report that fact within five (5) days therefrom to the

court wherein his aforesaid complaint or initiatorypleading has been filed.


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Only individuals vested with authority by a valid

board resolution may sign the certificate of non-

forum shopping in behalf of a corporation. In

addition, the Court has required that proof of said

authority must be attached. Failure to provide a

certificate of non-forum shopping is sufficient ground

to dismiss the petition.

However, subsequent submission of Secretarys

Certificate is substantial compliance with the

requirement that a Board Resolution must authorize

the officer executing the non-forum certification onbehalf of the corporation.


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EFFECT OF FAILURE TO COMPLY

Failure to comply with the requirement for certificationagainst forum shopping shall not be curable by mere

amendment of the complaint or other initiatory

pleading but shall be ground for the dismissal of the

case, upon motion and after hearing, without prejudiceto the re-filing of the case, unless otherwise provided.


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EXAMPLE OF VERIFICATION AGAINST NON-FORUM

SHOPPING

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, _______________________, of legal age, after having been

duly sworn in accordance with law, depose and state that:

1. I am a plaintiff in the above-stated case;

2. I caused the preparation of the foregoing complaint;

3. I have read the contents thereof and the facts stated therein

are true and correct of my personal knowledge and/or on the

basis of copies of documents and records in my possession;


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4. I have not commenced any other action or proceeding

involving the same issues in the Supreme Court, the Court of

Appeals, or any other tribunal or agency;

5. To the best of my knowledge and belief, no such action orproceeding is pending in the Supreme Court, the Court of

Appeals, or any other tribunal or agency;

6. If I should thereafter learn that a similar action or

proceeding has been filed or is pending before the SupremeCourt, the Court of Appeals, or any other tribunal or agency, I

undertake to report that fact within five (5) days therefrom to

this Honorable Court.

________________Affiant

* Complainant/Petitioner/Appellant


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SUBSCRIBED AND SWORN to before me this ___day of __________ 200____ at _________________affiant exhibiting to me his ( ANY GOVERNMENT

ISSUED ID) No.____________________ issued on________________ 200_ at ______________ City.

Doc. No. ;Page No. ;Book No. ;Series of 2013.


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2. 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 judgement directing some act to be done in

favour 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; andc) if required by the rules or necessary to prove the facts

alleged, shall be accompanied by supporting affidavits

and other papers.


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KINDS OF MOTION:

1.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 theruling.

Ex parte motions are however an exception. The rule

requires motion to be heard with notice to the other

party at least 3 days before the date of hearing.

EXAMPLES: Urgent Ex-Parte Motion For Postponement

Urgent Ex-Parte Motion For Early Resolution


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2. Litigated- one made with 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 thedate of hearing unless the court for good cause sets the

hearing on shorter notice.

EXAMPLE: Motion To Dismiss; Motion To Post Bail


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1. Motion of coursea 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 anyallegation or suggestion on which it is founded.

EXAMPLE:Motion for Execution (when the decision has been

become final and executory)


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1. Pro Formapro forma motion is literally, a motion

in form only.

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 a pro forma when it

does not specify the findings or conclusions in thejudgement which are not supported by evidence or

which are contrary to law making express reference

to the pertinent evidence or legal provisions.


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1. Special Motion A motion directed to the

discretion of the court and usually involves an

investigation of the facts on which the application is

predicated.

EXAMPLE:

Motion To Lift Warrant of Arrest

(Please see pages 113 to 114 of the book of Dean

Tabucanon for the sample form of a motion.)


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3. BRIEF

Briefis from the Latin brevis,and the French

briefe, meaning a short or condensedstatement.

It is a concise statement, presented to the

court, on the points and questions incontroversy, and by fair argument on the facts

and law of the case to assist the court in arriving

at a just and proper conclusions.


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A brief also called memorandumof law, is a

document presented to the appellate court

arguing why the reviewing court should affirmor reverse the lower courts decision, as the

case may be.

The brief establishes the legal argument forthe party based on legal precedent (citing the

controlling cases) or reliance on the law and

other authorities.

It is filed by the APPELLANT (losing party)


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Trial briefs are those filed before trial courts to

resolve disputed matters; appellate briefs are

presented to appellate courts. The appealing party submits his appellants

brief first. The responding party, called the

appellee, answers with his appellees briefwithin the designated time.


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CONTENTS OF APPELLANTS BRIEF

(RULE 44, SECTION 13 OF THE RULES OF

COURT)A subject index (digest of the arguments and

page references, and a table cases alphabetically

arranged, textbooks and statutes cited withreferences to the pages where they are cited)

An assignment of errors

S f h C l d i


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Statement of the Case a clear and concise

statement of the nature of the action, a

summary of the proceedings, the appealedrulings and orders of the court, the nature of

the judgement.

Statement of the Facts a clear and concise

statement in a narrative form of the facts

admitted by both parties and of those in

controversy.

Statementof the issuesof fact or law


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Argument,discussion of the appellants

arguments on each assignment of error.

Relief, a specification of the order orjudgment which the appellant seeks.

Generally, appellant prays that the appeal be

granted and the assailed decision be reversedand set aside.


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CONTENTS OF APPELLANTS BRIEF

(RULE 44, SECTION 14 OF THE RULES OF

COURT)Subjectindexofthe 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.

St t t f F t th ll h ll t t


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Statement of Facts, the appellee shall state

that he accepts the statement of the facts in

the appellantsbrief, or

under the heading Counter Statement of the

Facts, he shall point out such insufficiencies

or inaccuracies as he believes exist in the

appellantsstatement of facts with references

to the pages of the record in support thereof,

but without repetition of matters in the

appellantsstatement of facts.


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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 on which the citation is

found.

SIGNIFICANCE OF THE BRIEF


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SIGNIFICANCE OF THE BRIEF

The brief is without doubt the lawyers single

best opportunity to persuade the appellatecourt.

As oral arguments are rare in the appellate

level, the Court of Appeals and the SupremeCourt decide based on the briefs and arguments

presented.

Briefs are sometimes called the most refinedof legal conversation and represents the

pinnacleof the lawyerscraft.Its organization,

presentation, argumentation, and writing style

must be excellent.

B i f ti ll d th t fi d


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Briefs are sometimes called the most refined

of legal conversation and represents the

pinnacle of the lawyers craft. Its

organization, presentation, argumentation,

and writing style must be excellent.


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The following are the appellate rules in the 1997

Rules on Civil Procedure:An appeal is a statutory right and part of due

process.

Perfection of an appeal in the manner andwithin the period laid down by law is not only

mandatory but also jurisdictional.

Only parties can appeal from a decision.

The Modes of Appeal


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The Modes of Appeal

The three (3) modes of appeal are:

1. ordinary appeal (Rules 40 and 41)2. petition for review (Rules 42 and 43) and

3. appeal by certiorari (petition for review on

certiorari) (Rule 45)

RULE MODE OF APPEAL PERIOD


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RULE MODE OF APPEAL PERIOD40 ORDINARY APPEAL BY FILING A

NOTICE OF APPEAL

(memorandum)

MTC TO RTC WITHIN 15 DAYS

FROM RECEIPT OF

DECISION

41 ORDINARY APPEAL BY FILING A

NOTICE OF APPEAL

(appeal brief)

RTC TO CA WITHIN 15 DAYS

FROM RECEIPT OF

DECISION

42 PETITION FOR REVIEW RTC TO CA

(EXERCISE OF

APPELLATE

JURISDICTION)

WITHIN 15 DAYS

FROM RECEIPT OF

DECISION

43 PETITION FOR REVIEW QUASI JUDICIALAGENCIES TO CA*

[CSC,SEC, OP, LRA, SSC,

CAV,ERB, NTC,DAR,

GSIS, ECC, IC, BI, CIAC)

WITHIN 15 DAYSFROM RECEIPT OF

DECISION

RULE MODE OF APPEAL PERIOD


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44 PROCEDURE IN THE CA RTC TO CA WITHIN 15 DAYS FROM

RECEIPT OF DECISION

CA issue Notice To File

Brief

45 DAYS from receipt

file APPELLANT'S BRIEF;

WITHIN 45 DAYS FROMRECEIPT OF

APPELLANT'S BRIEF

FILE APPELLEE'S BRIEF;

WITHIN 2O DAYS FROM

RECEIPT OF APPELLEE'SBRIEFAPPELLANT MAY

FILE REPLY BRIEF


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45 PETITION FOR REVIEW ON

CERTIORARI

CA/SANDIGANBAYAN/

CTA/RTC

QUESTIONS OF LAW

UNLESS THE

RESOLUTION OF

QUESTIONS OF FACT IS

OF TRANSCENDENTAL

IMPORTANCE

WITHIN 15 DAYS

FROM RECEIPT OF

DECISION


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Thank you and God bless!!

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