PERSUASIVE LEGAL ANALYSIS

1. PERSUASIVE LEGAL ANALYSIS A persuasive document attempts to convince a third party to decide in favour of the writers client. The third person may be a judge or arbitrator before whom the lawyer argues to win a case or an opposing party before whom the lawyer sends a demand letter.

 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 neutral stand is not expected.

1. PLEADINGS

--are the written statements of the respective claims 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.

--Rule 8, Section 1 of the Rules of Court requires that every pleading shall contain in methodical and logical form a plain, concise and direct statement of the ultimate facts relied upon by the pleader for his claim or defense. --Statements of mere evidentiary facts must be omitted. If the defense relied upon is based on law, the pertinent provisions of the law and their applicability to the case shall be clearly and concisely stated.

 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 were done in the manner alleged, do not establish any right or cause of action.

 Elements of a Cause of Action 1. a right in favor of the plaintiff arising from

contract, or by other means creating it;

law,

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 defendant violative 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 of damages.

 Kinds of Pleading The complaint, counterclaim, cross-claim, third (fourth,etc)-party complaint, or the complaint-in-intervention assert the claims of a party. The defenses of the other party are alleged in the answer to the pleading asserting a claim against him. In return, the answer may be responded to by a reply.

 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.

A. Caption the caption sets forth: a) the name of the court, b) the title of the action, and c) the court docket number, if assigned and d)the designation of the pleading (i.e., the type of case being filed, e.g. Collection, Mandamus, Damages, etc.).

 Title of the action-- the names of the parties are indicated. Must be named in the original complaint or petition. In subsequent pleadings --sufficient to include only the name of the first party on each side with an appropriate indication (e.g., adding after the name of the first party the phrase et al., meaning and others).

EXAMPLE OF CAPTION (Original Complaint)

Republic of the Philippines Municipal Trial Court National Capital Judicial Region Paranaque City Branch I Claudine Santiago, Plaintiff, --versus-Raymart Barreto, Civil Case No. 1234 For: Forcible Entry

Defendant.
X---------------------------------X

EXAMPLE OF CAPTION (On Appeal)

Republic of the Philippines

Regional Trial Court

National Capital Judicial Region Paranaque City

Branch 274
Claudine Santiago, Plaintiff-Appellant, Civil Case No. 1234 For: Forcible Entry

--versus-Raymart Barreto, Defendant-Appellee.

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

EXAMPLE OF CAPTION (On Appeal to the Court of Appeals)

Republic of the Philippines Court of Appeals Manila Claudine Santiago, Petitioner-Appellant, --versus-Raymart Barreto, Respondent-Appellee. X-------------------------------------------X Petition For Review 42 Under of the Rules of Court CA-G.R. SP No. 13009 For: Petition For Review Under Rule 42 of the Rules of Court

EXAMPLE OF CAPTION (On Appeal to the Court of Appeals)

Republic of the Philippines
Supreme Court Manila

Claudine Santiago, Petitioner,

--versus--

G.R. SP No. 13009

Raymart Barreto,
Respondent. X-------------------------------------------X

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

B. Body of the Pleading- sets forth the type or kind of pleading filed (e.g., Complaint, Answer), the statements of the partys claims 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 partys claims 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 easy identification. A paragraph may be referred to by its number in the subsequent pleadings.

Headings are necessary when two or more causes of action are joined. The first shall be titled: first cause of action; the second, 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 date the 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 and equitable. Every pleading shall be dated.

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

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;

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 29th day of December, 2012 in the City of Manila for Makati City.

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 read the pleading, and that to the best of his knowledge, information and belief there is good ground to support it. He likewise certifies that the pleading is not interposed for delay.

 Some legal consequences: As a rule, an unsigned pleading produces no legal effect, but the court may allow if it was due to inadvertence and not for delay. A lawyer who a) deliberately files an unsigned pleading; b) signs a pleading in violation of the Rules; c) alleges scandalous or indecent matters; or d) fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

EXAMPLE:
SHAINA A. CRUZ
Counsel for the Plaintiff 5th Floor, 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: sacruz@yahoo.com Tel No. 778-1234 Mobile No. 0999-888-8888

* 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 Counsels MCLE 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.

 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 REQUIRE practicing 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 the immediately 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.

A. VERIFICATION The rule is pleadings need not be under oath, verified or accompanied by sworn statements. The exception is when the law or rule provides otherwise. Pleadings covered by the rule on Summary Procedure must be verified.

HOW IS A PLEADING VERIFIED? A pleading is verified by an affidavit that the affiant: has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

 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.

 Absence of verification when required is not a jurisdictional defect. It is just a formal defect which 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

A. CERTIFICATION AGAINST SHOPPING

Forum shopping is the act of filing the same suit in different 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.

 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;

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 initiatory pleading has been filed.

 Only individuals vested with authority by a valid board resolution may sign the certificate of nonforum 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 on behalf of the corporation.

EFFECT OF FAILURE TO COMPLY

Failure to comply with the requirement for certification against 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 prejudice to the re-filing of the case, unless otherwise provided.

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;

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 or proceeding 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 Supreme Court, 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

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.

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; and c) if required by the rules or necessary to prove the facts alleged, shall be accompanied by supporting affidavits and other papers.

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 the ruling. 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

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 the date of hearing unless the court for good cause sets the hearing on shorter notice. EXAMPLE: Motion To Dismiss; Motion To Post Bail

1. Motion of course a 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 any allegation or suggestion on which it is founded. EXAMPLE: Motion for Execution (when the decision has been become final and executory)

1. Pro Forma pro 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 the judgement which are not supported by evidence or which are contrary to law making express reference to the pertinent evidence or legal provisions.

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.)

3. BRIEF Brief is from the Latin brevis, and the French briefe, meaning a short or condensed statement. It is a concise statement, presented to the court, on the points and questions in controversy, and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusions.

 A brief also called memorandum of law, is a document presented to the appellate court arguing why the reviewing court should affirm or reverse the lower courts decision, as the case may be. The brief establishes the legal argument for the 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)

 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 brief within the designated time.

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 with references to the pages where they are cited) An assignment of errors

 Statement of the Case a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings 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. Statement of the issues of fact or law

 Argument,discussion of the appellants arguments on each assignment of error. Relief, a specification of the order or judgment which the appellant seeks. Generally, appellant prays that the appeal be granted and the assailed decision be reversed and set aside.

CONTENTS OF APPELLANTS BRIEF (RULE 44, SECTION 14 OF THE RULES OF COURT) Subject indexof the 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.

 Statement of Facts, the appellee shall state that he accepts the statement of the facts in the appellants brief, or under the heading Counter Statement of the Facts, he shall point out such insufficiencies or inaccuracies as he believes exist in the appellants statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellants statement of facts.

 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 The brief is without doubt the lawyers single best opportunity to persuade the appellate court. As oral arguments are rare in the appellate level, the Court of Appeals and the Supreme Court decide based on the briefs and arguments presented. 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

 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.

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 and within the period laid down by law is not only mandatory but also jurisdictional. Only parties can appeal from a decision.

 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 40

MODE OF APPEAL ORDINARY APPEAL BY FILING A NOTICE OF APPEAL (memorandum) MTC TO RTC

PERIOD WITHIN 15 DAYS FROM RECEIPT OF DECISION WITHIN 15 DAYS FROM RECEIPT OF DECISION

41

ORDINARY APPEAL BY FILING A NOTICE OF APPEAL (appeal brief)

RTC TO CA

42

PETITION FOR REVIEW

RTC TO CA (EXERCISE OF APPELLATE JURISDICTION)

QUASI JUDICIAL AGENCIES TO CA* [CSC,SEC, OP, LRA, SSC, CAV,ERB, NTC,DAR, GSIS, ECC, IC, BI, CIAC)

WITHIN 15 DAYS FROM RECEIPT OF DECISION

WITHIN 15 DAYS FROM RECEIPT OF DECISION

43

PETITION FOR REVIEW

RULE

MODE OF APPEAL

PERIOD

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 FROM RECEIPT OF APPELLANT'S BRIEF FILE APPELLEE'S BRIEF; WITHIN 2O DAYS FROM RECEIPT OF APPELLEE'S BRIEFAPPELLANT MAY FILE REPLY BRIEF

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

Thank you and God bless!!