WRITING FACTS (PREMISES) 2.
Effective Use of Authorities
 The brain likes stories because it puts the whole brain to work – not
just the language processing centers
 Humans are primarily visual
FACTS ARE VERY IMPORTANT
 Effective framing of facts would increase your chances of
achieving favorable outcomes
 In pleadings, the statement of facts introduces your client to the
judge
 You do not want your client to be seen as the bad guy
 For the most part, writing facts is about telling a story of victims
and villains
 Your statement of facts should do more than summarize events
and facts
GOAL IN WRITING FOR PLAINTIFF:
1. Create empathy toward your client
2. Generate enmity toward the defendant
3. Satisfy the factual basis of the applicable standard
GOAL IN WRITING FOR THE DEFENDANT:
1. Mitigate the damage caused by plaintiff’s story
2. Explain reasons behind the defendant’s actions
3. Show the gaps, errors, and inadequacy of plaintiff’s story
4. Counterpunch – show that the plaintiff also violated defendant’s
rights
TECHNIQUES:
 Emphasize your best facts, even if you need to repeat them
 Provide readers with basic information about the dispute
 Anticipate and confront especially damaging facts and figure out
how to mitigate their effects
 Master the facts – unlike the law, the facts are generally
constant. Thus, they should be at your finger tips
 Summarize the facts to allow research parameters
 Keep the arguments in mind while writing the facts
TONE TO ADOPT IN WRITING PLEADINGS
 Write in a formal tone to gain credibility
Q: How much can you frame/characterize or “spin” the facts?
A: Judges expect some spin. But do not materially distort facts, omit
important facts, or manufacture facts
 Ignore minor errors so that you will not seem petty
 If the other party attacks you, stay calm. Shrug it off
 If you make a mistake, own up to the error, express embarrassment
and assure that it will not happen again
 Decisions that have good headings are easier to read
WRITING ARGUMENTS
GOOD ARGUMENTS WILL DEPEND ON 2 THINGS:
1. Authorities – without this, you will not have arguments
EFFECTIVE USE OF AUTHORITY REQUIRE 3 BASIC SKILLS:
1. Build affirmative arguments using favorable sources
2. When there are important authorities that may be read to support
either side’s position, you must be able to show that the law
supports your position
3. You must be able to adequately address or respond to the other
side’s favorable authorities; using counter arguments
 Make sure that the court sees the controlling authorities clearly
 Do not forget to explain and emphasize salient facts and relevant
principles in the cases cited
 Try to make context of the case you are about to cite
 Never dump quotes and passages from cases without any discussion
 Use block quotations only if it is absolutely necessary
Q: How many cases should you discuss?
A: Discuss the case that has the facts most similar to yours
 When critical authority can be read to support either side, emphasize
the ways it supports your side – don’t just cite favorable facts – you
might commit an ethical violation – do not omit words
 Argue that your interpretation is the correct interpretation
because it is what society wants – show social value! Helpful
especially in arguing Consti cases
 Use analogy – esp when cases are not exactly in point with your
present case
 Don’t neglect statutes and regulations especially if they are exactly in
point and need no interpretation
 If the laws are clear, you might not have to go to jurisprudence
 Downplay the effects of the cases cited by your opponents
 Discuss your most powerful arguments first, then your second most
powerful, and so forth – DISCUSS ONLY 2 to 3 strong arguments, and
leave out the minor ones!
 If you can’t eliminate a weak argument, sandwich it between 2 strong
arguments
COUNTER-ARGUMENTS
 Read in the original all of your adversary’s important authorities
2 CHOICES IN COUNTER-ARGUING
1. Distinguish – show inapplicability
2. Diminish – show why it should not be applied, even if applicable
Q: Is it alright to concede points?
A: It is, but not too much. Also, know when denial is not enough.
Successive denials make concessions. An answering case is a positive
case
 Devote a limited space to your opponent’s arguments
 If you cite them too much, the court will be reminded of their
arguments
Q: How much can you stretch the law and facts?
A: If it’s honestly debatable, argue it. If you won’t lose dignity arguing it,
argue it (Only Sir Cajucom’s personal rule). Both law and facts bend and
stretch, like an elastic. Stretched too far, and they snap
Send 2 cases that you’ve read, that you think are very well written
CONTRACT DRAFTING
 Make sure that the contract reflects the intent of both parties
Primary readers of a contract: o It’s more advisable for the draft to come from your end

1. Parties TAKE SPECIAL ATTENTION ON THE FF:

2. Counsel 1. Warranties

3. Courts 2. Representations

 Document must be in accord and in-tune to the intended transaction 3. Conditions

 Take note of the instructions of the parties, especially the 4. Termination

principal (your client)
5. Breach
 There should be a meeting of the minds between clients and lawyers
6. Consequences of default
 Know the purpose of the client
 Do not use a pronoun unless it is clear who or what is being referred
 Take note not only of the legal provisions but also the business and to
personal perspectives
 Be clear with time references for payment or performance
 Assess the sale of the transaction (you don’t draft a 100-page contract
for the lease of a studio apartment)  Be consistent and logical with the terms (Don’t stipulate on different
manners of payment for different payables)
 Know who the proper parties are (privity of contracts)
 Watch out for default rules you want to exclude
 For a complex transaction, you may need to draw a diagram showing
interrelationship of parties BOILER PLATE PROVISIONS

 Get to know your client and your client’s business  Standard provisions (force majeure clause; governing law
clause; arbitration clause)
o Client’s do not always mean what they say, and they
don’t always mean what they say RECITALS

 Assess and discuss the need for legal protection against identified  Your whereas clauses
risks  Aid interpretation of contracts
 Style considerations: take out whereas
 Do not just work from your desktop. Think about practical matters, how
the agreement will be implemented DECISION WRITING

 For new or unusual type of transactions, lack of vison or imagination  Writing decisions is different from writing an advocacy, this time you
can be disastrous are writing for the COURT

 Take note of timetables, deadlines, etc PARTS OF DECISION THAT YOU SHOULD FOCUS ON

 Document must be complete and precise 1. Opener

GOAL: there must be no traction for either party or their counsel to argue  Start with something that would keep the reader engaged (start
that something else was intended with a quote etc.)

 To fully understand this, take on the hat of a litigator  Start with the issue – also called as the “deep issue” – this is the
central issue of the case
 Litigator will look for every weakness in that contract that can be
raised for the client’s benefit  You can add the facts – but make it concise

 It is rarely possible to cover all eventualities 2. The facts

o Draft what ought to be covered  Try to avoid ambiguity

 There are times when you can be purposely vague o If there are numerous parties, distinguish them well
o Depends on who can benefit in the vagueness – this is up
to the other party to point the vagueness out  If the fact won’t affect the outcome of the case, do not disclose
that fact
 The document should be clear and not in archaic language
 Take out the legalese  A good fact section usually yields a persuasive decision
 Provide definitions
 Goals when writing facts:
 Provide technical words
 Balance between unambiguity and intelligibility
1. Cut clutter
2. Add background
 ULTIMATE CONSIDERATION: protection of your client 3. Emphasize key points – if it turns on a key fact
4. Adopt a narrative voice
 Your document must be short and simple 5. Enhance visual appeal ( as much as possible use footnote
citations, and not in-text citations)
 Check if all parties to a transaction have the necessary authority
 Avoid the ff:
 Identify other professional advisers you may need to properly
understand the transaction and draft the document (engineers for 1. Date and time (if not relevant)
construction, medical doctors for healthcare) 2. Address
3. Amounts (is it doesn’t affect the decision)
 Determine who will prepare the draft 4. Weights, quantities, or other measures
5. Quotations from the records
 6. Proper names

3. The Legal Analysis

 Where the case will turn – how it well set your point – will decide
if the answer to the issue is a yes or a no

 Cite applicable authorities

 Don’t brush aside hardest questions – if it’s a complicated

matter, it must show in the writing that it took a lot of legal
arguments to get into the final answer

 Acknowledge counter arguments

 Break down legal claims – use block quote

 Don’t be afraid to add personal touches (try to emulate Abad,

Leonen)

 Use analogies (DECs v. San Diego)

4. The disposition of the Court

PLEADINGS

 Pleadings are the written statements of the respective claims and defenses
of the parties submitted to the court for appropriate judgment

 Where causes of actions are laid down

o If plaintiff – the complaint

o If defendant – your reply/ defense

o Reply – allege new facts; rebut complaints