WRITING TRIAL MEMORANDUM AND LEGAL OPINION: PREPARING FOR THE LAST BAR SUNDAY

Atty. Ida Marie Vega Escolano

Its the LAST BAR SUNDAY!

Congratulations for making it this far. You have hurdled three difficult battles, but the war is far from over. 4TH SUNDAY 8:00 - 12:00 TRIAL MEMO 2:00 - 5:00 LEGAL OPINION
* NEW 2011 BAR EXAMS SCHEDULE, SC Announcement in their official website

This is not the time to be complacent!

The results of the a) MCQ and b) essay-type examinations shall be given weights of 60% and 40%, respectively, in the computation of the candidates final grade.
* SC EN BANC BAR MATTER NO. 2265, RE: Reforms in the 2011 Examinations

Even if you pass the MCQ examinations, you may still fail the bar examinations, if you do not do well in the essay-type questions.

Horror Stories of Bar Exams Past

Famous story, about how one bar examinee scored 92% on average, high enough to be on the bar topnotchers list, BUT DQd on Legal Ethics and Practical Exercises (last exam). I just want this over with. The noise outside La Salle is inviting and exciting, it means freedom. Many past bar examinees attest that they could have done better in their last bar Sunday. It reflected in their grades.

Be a tortoise!

Slow and steady wins the race.

Do not be in a hurry, just so you can finish. Do not be hasty. Take your time. Relish the experience, because it will be the last bar exam you will take. Do not lose fuel at the end of your journey. Remain motivated and focus. Yes, it is almost the end but it is not yet the end! You have more to lose now than when you took the bar examination in years past.

Comparison of Percentages: Harsh Realities

SUBJECTS Political Law Labor Law Taxation Civil Law Mercantile Law Remedial Law Legal Ethics Criminal Law OLD 15 10 10 15 15 20 5 10 15 10 10 15 15 20 5 10 60 NEW 9 6 6 9 9 12 3 6

Trial Memorandum Legal Opinion TOTAL

N/A N/A 100

60 40

40 100

24 16 100

More to lose now.

FORMER 4TH BAR Remedial Law SUNDAY SUBJECTS Legal Ethics THIS YEAR'S 4TH Trial Memorandum BAR SUNDAY SUBJECTS Legal Opinion

20 5 24 16

Other Harsh Realities

Your bar exam is highly experimental. It is the first of its kind. We can never know what to expect. Any law experts guess is just as good as mine or anyone else.
EXAMPLE:
HOW MANY TRIAL MEMORANDUM/LEGAL OPINION WILL YOU BE MAKING IN THE ALLOTED 4/3 HOURS?

The good news.

For the last four years, you have been answering essay questions VS. answering multiple choice. You already have the foundation. At this point in time, you are the most updated and knowledgeable person about the law. You are provided with research materials (provisions of law and jurisprudence) that you may want to use in your work VS. in MCQ, where you have to find the answer. The essays will not be bar subject specific.
* SC EN BANC BAR MATTER NO. 2265, RE: Reforms in the 2011 Examinations

The good news.

The essays shall not be graded for technically right or wrong answers, but for the quality of the candidates legal advocacy. The passing standard for correction shall be work expected of a beginning practitioner, not a seasoned lawyer.
* SC EN BANC BAR MATTER NO. 2265, RE: Reforms in the 2011 Examinations

SC has issued INSTRUCTIONS FOR ESSAY EXAMS.

Instructions for Essay Exams

You are presented with a hypothetical case plus research materials (provisions of law and jurisprudence) that you may want to use in your work. The laws and jurisprudence accompanying the problems are designed to provide sufficient basis for preparing an excellent trial memorandum or legal opinion. But you are free to include such laws, rules and principles not provided that you feel will enhance your work. Choose the side of the dispute that you want to uphold and defend and prepare a trial memorandum in support of your side. Omit the case caption. Do not write more than four arguments.

Instructions for Essay Exams

You will be given 1. Test Questionnaire 2. Draft Pad - for making a draft of your memorandum. This will permit you to freely edit and rewrite your work. Editing and rewriting are essential to sound legal writing.
* To save time, write only your outline in the draft pad, not the entire memorandum.

3.

Answer Pad

Instructions for Essay Exams

The bells will be rung one hour before the end of the exam to signal the need for you to begin transferring your work to your Answer Pad. You may, of course, prefer to skip the preparation of a draft and write your essay directly on your Answer Pad. That is allowed. Quality of writing, not length is desired. You are free to jot notes or place helpful markings like underlines on the test questions and the enclosed materials. Corrections even on your final essay on the Answer Pad are allowed and will not result in any deduction. Still, it is advised that you write clearly, legibly and in an orderly manner.

Instructions for Essay Exams

When the bell rings a second time to signal the end of the exam, your test questions, Draft Pad, and Essay Pad will be collected whether you are finished or not. The time pressure is a part of the exam.
* What does this mean? Do not expect that you would be given an extension. Work efficiently during the said time frame.

You will not be graded for a technically right or wrong answer but for the quality of your legal advocacy.

Test Criteria
The test is intended to measure your skills in: 1) communicating in English -- 20%; 2) sorting out the conflicting claims and extracting those facts that are relevant to the issue or issues in the case -- 15%; 3) identifying the issue or issues presented -- 15%; and 4) constructing your arguments and persuading your reader to your point of view -- 50%

ELDIAP in short
SKILLS NEEDED: E - English LD - Ability to determine the Legal Dispute and I - Issue/s AP - How well you Argue and Persuade your reader

TIPS: English
Never forget to check for spelling errors, review the grammar and punctuations. Keep your English simple. Remember what your bar chairman , Justice Abad said, Legal clichs belong to a by-gone era. Modern legal writing demands simplicity, clarity and accuracy. Observe proper margin. Always consider your reader, and adjust your English accordingly. (Example: third person vs. first person; formal
vs. casual tone)

Legal Dispute and Issues

Refers to the plaintiff or complainants cause of action and the defendant or respondents defenses. There is a legal dispute when one party complains of a violation of his right by another who, on the other hand, denies such a violation. The legal dispute, recast in the format of an issue, provides the principal issue in every case.

Legal Dispute and Issues

A legal dispute is at the heart of every case subject of legal writing because it is like a tumor that would not go away until it is excised. Consequently, if you fail to correctly identify the legal dispute and address it, you would just be running around in circles, contributing nothing to its final termination. Only when you have an idea of what the principal issue is, could you make a good job of extracting the relevant facts from your material.

Butterfly Effect
LEGAL DISPUTE PRINCIPAL ISSUE/S RELEVANT FACTS
* the phenomenon whereby a minor change in circumstances can cause a large change in outcome

TIPS in determining the Legal Dispute

Read the entire case problem. Highlight important points and names. Determine where the real controversy lies. Go through the research materials. It is most likely that it has a commonality as to law or as to bar subject. Focus your mind on that. I am looking for a dispute/controversy on the subject of _____. The issue should be answered by the laws or jurisprudence on the subject of _____.

TIPS in determining the Legal Dispute

Do keep in mind that the case may have more than one legal dispute, when a different subject/s of law are also included in the research materials.
NOTE: Do NOT feel obligated to use each and every research material presented. Yes, it is there to help you, but it may also be there to confuse you. CHOOSE THE KEY LEGAL DISPUTE that, if resolved, will bring about the resolution of the case. Remember, you are pressed for time. So, ask yourself, If I address this issue and if the court will decide on that merit alone, will it resolve the case?

It all depends on time.

So, you have to pace yourself. Check how many trial memorandum/legal opinion you are tasked to make and adjust accordingly.
If only one, maximize your four arguments allotment. If many, strip to the bare minimum, and focus on the Key legal dispute.

TIPS in determining the Legal Dispute

As you go through the case problem, you see that one of the parties questions the jurisdiction of the court. Make this is as your first key dispute. Address this first before you address the other issues.
(Example: employer-employee relationship, ejectment, pecuniary consideration, intracorporate dispute, etc.)

Butterfly Effect
KEY LAW/JURISPRUDENCE KEY LEGAL DISPUTE KEY ISSUE/S KEY FACTS

Choose your side and stick to it.

Do not change your mind halfway. You will lose points in persuasiveness. How can you persuade your reader, if you cannot even persuade yourself? Do not forget to write in title, whether you are for the petitioner or respondent/plaintiff or defendant.

TIPS in writing the Statement of Facts

Include facts which are only relevant to the key issue Key Facts. Ask yourself, If I remove this information, will I still be able to answer the issue? Will my reader still understand? YES Not a key fact NO Key fact Write the facts in such a way that will favor your chosen side. But do not forget to write a short sentence about the other party. Important! To show the conflict between the parties.

Reverse Butterfly Effect

KEY LAW/JURISPRUDENCE KEY LEGAL DISPUTE KEY ISSUE/S KEY FACTS

TIPS: C-R-A-C Rule

A fact is considered a key fact, when you need it in the APPLICATION part, i.e., interweaving of the facts with the key law/jurisprudence. This is the same rule used in answering former bar exam questions, but now, it is reflected in a different form.

OUTLINE FOR DRAFT PAD (Trial Memo)

I. II. III.

Legal Dispute For plaintiff/complainant/petitioner Statement of Key Facts (bullet type, limit: five bullets)
1. 2. 3. 4. 5.

What the case is about Facts in favor of client Facts in favor of client. Reliefs demanded. Short description of opponents claim or defense Procedural Posture (how did the case reached the court?)

OUTLINE FOR DRAFT PAD (Trial Memo)

I. II. III.

Legal Dispute For defendant/respondent Statement of Key Facts (bullet type, limit: five bullets)
1. 2. 3. 4. 5.

What the case is about Short description of opponents claim or complaint Facts in favor of client or Defenses Facts in favor of client or Defenses. Reliefs demanded. Procedural Posture (how did the case reached the court?)

OUTLINE FOR DRAFT PAD

IV. V.

Statement of Key Issue/s Arguments and Discussion

1.

Short Answer/Argument to Issue # 1

Key Law/Jurisprudence needed for CRAC

2.

Short Answer/Argument to Issue # 2

Key Law/Jurisprudence needed for CRAC

3.

Short Answer/Argument to Issue # 3

Key Law/Jurisprudence needed for CRAC

4.

Conclusion

vi.

Remedies Available for your client

From the SC Website Up-Close

PART 1 TRIAL MEMORANDUM: Consider the following direct testimonies given in a hypothetical case for annulment of contract. Assume that you are the lawyer for either one of the parties. Using the information given, choose one side and write a memorandum of arguments that the court may consider before deciding the case. 1. Testimony of the Plaintiff 2. Statement of the Defendant 3. Laws and jurisprudence that may apply

From the SC Website Up-Close

PART 1 TRIAL MEMORANDUM: Consider the following direct testimonies given in a hypothetical case for damages. Assume that you are the lawyer for either one of the parties. Using the information given, choose one side and write a memorandum of arguments that the court may consider before deciding the case. 1. Testimony of the Plaintiff 2. Statement of the Defendant 3. Statement of witness for defendant 4. Laws and jurisprudence that may apply

From the SC Website Up-Close

PART 2 LEGAL OPINION: Below is an exchange between you and a hypothetical client. Based on the information given, write (1) a brief legal opinion/advice specifying the relevant facts of the case, the legal problems raised by your hypothetical client, your assessment of the issues involved, and the possible courses of action that may be taken under the law; and (2) one legal document that may be used in connection with your recommended course of action. 1. Interview, Letters, and other statement of clients 2. Laws and jurisprudence that may apply

OUTLINE FOR DRAFT PAD (Legal Opinion)

I. II. III. IV.

Legal Dispute Summary of Relevant Facts relayed by client Statement of Key Issue/s or Questions posed by client Assessment
1.

Short Answer to Question # 1

Key Law/Jurisprudence needed for CRAC

2.

Short Answer to Question # 2

Key Law/Jurisprudence needed for CRAC

3.
V. VI.

Conclusion

Possible or Recommended Course of Action/s Legal Document that may be used

Trial Memo vs. Legal Opinion

TRIAL MEMORANDUM Formal Tone Legal Forms Persuade the Judge/Justices to rule in favor of your client. Third Person LEGAL OPINION Casual/Friendly Tone Letter Form Persuade your client, prospective or current, to hire you as a lawyer and take your legal advice First Person

Trial Memo vs. Legal Opinion

TRIAL MEMORANDUM Civil Law Labor Law Criminal Law Political Law Procedural Law Jurisdiction Ethics LEGAL OPINION Taxation Commercial Law Procedural Law - Forms Ethics

Other Tips
1. 2. 3. 4.

5.

6.

Do not use your name. No attribution. No markings Come prepared. Respect your quirks. Prepare your hand for rigorous handwriting. Do hand exercises. Tomorrow night, write The quick brown fox jumps over the lazy dog. at least 15 times, in the handwriting you plan to use. Expect the unexpected. Prepare for the unexpected.

If you want to be a lawyer, then..

THINK LIKE A LAWYER.