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LEGAL WRITING

Introduction

No one knows when and where speech originated, but surely, mankind has then been making understandable sounds for hundreds of thousands years. Writing these sounds then became imperative as time went by.

Writing is a comparatively late development. Some authorities claim that mankind has been on earth for several millions of years but has been working with an alphabet system for only some five thousand years. The idea that everybody should learn to read and write has been current for only four hundred years and the idea is not even universally applied. It is not surprising therefore that everyone has difficulty understanding the act of writing.

In the Philippines alone, here are one hundred linguistic cultural and racial groups speaking about eighty-five dialects. To this date, the author could not understand this phenomenon.

Grammar Defined

GRAMMAR may be defined as a system of rules for the use language, or as a study of what is preferred and what is to be avoided in effective speech and writing. Broadly speaking, grammar is a descriptive statement of the way language works. Simply put, writing is a substitute for speaking. The written word is mummified until someone imparts life into it by transporting it mentally into the corresponding spoken word.

Purpose of Having a Good Grammar

As in other kinds of professional writing, we use grammar carefully to convey legal ideas clearly.

Important Grammatical Terms

The terms used in grammar help to explain the function and relationship of the words in sentences. A review of the various parts of speech is necessary.

NOUN

A noun is a name of a person, place, animal, thing, persons, objects or idea. This also includes names of substances, qualities, actions and measure of time or quantity. It is one of the most important words that you use when either speaking or writing.

Examples:

Girl, mansion, municipality, religion, honor

Proper nouns refer to particular places, persons, objects, ideas, etc.

Examples:

Adrianne, Malacanan Palace, University of the East

Abstracts nouns describe ideas or general concepts.

Examples:

Justice, transportation

Concrete nouns describe tangible items.

Examples:

Courtroom, bicycle.

Nouns are used as the subjects of sentences, and as the objects of verbs and prepositions.

Choose concrete nouns because they are more readable and more effective. Use abstract nouns to describe ideas accurately and to de-emphasize an unfavorable fact, such as details of an auto accident caused by your client. In this situation, you might use the abstract noun, truck.

Pronoun

A pronoun is a substitute for a noun. The prefix pro in the word pronoun means for. This is used to avoid repetition of nouns in a sentence which will make it monotonous and awkward.

Example:

Pedro threw his firearm as soon as he shot the victim.

Do not say: Pedro threw Pedros firearm as soon as Pedro shot the victim.

Verb

A verb expresses action or state of being, and it also indicates the time of action or being. It is the most important part speech. It is the only part of speech that can make a statement about the subject.

Examples:

Ruby waived her right to preliminary investigation. (past)

I need your recommendation now. (present)

You will enjoy your trip to Boracay. (future)

Kinds of Verbs:

An active verb or active voice is the term for the grammatical structure indicating that the subject of the sentence performs or causes the action expressed by the verb. Use active voice to eliminate ambiguity caused by the vague verbs such as consists of, concerns or involves.

Example: The court decided that freedom of expression was not an issue.

On the other hand, the passive verb or passive voice can create a sentence that is less precise, which make the reader wonder who decided.

Example: The court held that the plaintiff could not collect moral damages.

Auxiliary verbs or helping verbs are added to the basic verb to change verb tenses and add specific shades of meaning. Choosing the correct auxiliary verb can help you be more precise and persuasive.

Rules on Auxiliary Verbs:

Should.

Should implies that some action was preferable but was not in fact taken. For example, it can be useful for suggesting a breach of contract.

Example: The defendant should have indicated in paragraph six of the contract that ...

Could.

Could implies the capacity to do something, but suggests that the action will not or has not been done.

Example: The defendant could have used the handbrakes.

Would.

Would implies that an action would have been taken had conditions been different.

Example: The defendant would have used the handbrakes had he not been rushing to assist the people in the other car.

Can

Can implies capacity to do something, although the action has not yet been taken.

Example: When appreciating the evidence, the judge can take into account the witnesss apparent expertise and the clarity of the witnesss memory of the event.

Might

Might implies possibility. Often, might suggests if facts were otherwise.

Example: The City Prosecutor might dismiss the case.

May

May implies permission to do something.

Example: If the bidder fails to comply with the submission of a bond, he may be declared ineligible for further government contracts.

May also implies the possibility of something happening.

Example: The NBI may subpoena you.

Note however the following jurisprudence interpretative of the auxiliary verb may:

f.1 Where the provision reads may, this word shows that it is not mandatory but discretional. (U.S. vs Sanchez, 13 Phil. 337)

f.2 It is well-settled that in statutory interpretation the word may should be read shall where such construction is necessary to give effect to the apparent intention of the legislator. (In re: Guarina, 24 Phil. 41)

f.3 It is true that the word may ordinarily indicates potestative condition, but it may and should be read as shall when the apparent intention of the parties demands such construction. (Gonzales vs La Previsora, 74 Phil. 174)

f.4 The word may is usually permissive not mandatory. (Luna vs Abaya, 86 Phil. 475, Capati vs Ocampo, 113 SCRA 794, Gold Loop Properties, Inc. vs Court of Appeals, 106 SCAD 270)

f.5 Whether the word may in a statute is to be construed as mandatory and imposing a duty, or merely as permissive and conferring discretion, is to be determined in each case from the apparent intention of the statute as gathered from the context, as well as from the language of the particular provision. The question in each case is whether, taken as a whole and viewed in the light of surrounding circumstances, it can be said that a purpose existed on the part of the legislator to enact a law mandatory in its character, then it should be given a mandatory effect; if not, then it should be given its ordinary permissive effect. (Federation of Free Workers vs Inciong, 161 SCRA 295)

Must.

Must implies a requirement to do something or refrain from doing something.

Example: The lawyer must not in any manner, talk with the other party without first obtaining permission from his client.

However:

g.1 Must in a statute is not always imperative, but may be consistent with an exercise of discretion. (Diokno vs Rehabilitation Finance Corporation, 91 Phil. 611)

g.2 The word must connotes an imperative act or operates to impose a duty which may be enforced. It is synonymous with ought which connotes compulsion or mandatoriness though the word must in a statute, like shall is not always imperative and may be consistent with an exercise of discretion. (Loyola Grand Villas Homeowners [South] Association, Inc. vs Court of Appeals, 85 SCAD 420)

Shall

Shall can imply a requirement and is used to mean this in legislation.

Example: All petitioners shall file . . .

But in general, shall also implies the future tense.

Example: The movie Titanic shall premiere in June, if all goes as planned.

Thus, shall can be ambiguous to non-legal readers. Whenever ambiguity is possible, use must for requirements and will for future tenses.

Philippine jurisprudence holds that:

h.1 In its ordinary significance, the term shall is a word of command, and one which has always or which must be given a compulsory meaning and it is generally imperative or mandatory. It has the invariable significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning or when public interest is involved, or where the public or person have rights ought to be exercised or enforced, unless a contrary intent appears. (Lacson vs Lacson, 24 SCRA 848)

h.2 The word shall in Article 213 of the Family Code and Rule 99 of the Revised Rules of Court connotes a mandatory character. (Loyola Grand Villas Homeowners [South] Association vs Court of Appeals, 85 SCAD 420)

h.3 Shall in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word shall when used in a statute is mandatory. (Codoy vs Calugay, 312 SCRA 333)

h.4 The word shall does not always denote an imperative duty. (Montecer vs Court of Appeals, 308 SCRA 642)

Do

Do adds emphasis. It often indicates a positive answer when a negative one is expected.

Example: On the contrary, I do plan to attend the impeachment hearings.

Do Not

Do Not denies an action.

Example: My client does not know of any such plans.

Adjectives

Adjectives modify and describe nouns and pronouns and specify size, color, number, or in some other way making meaning more nearly exact. They add new ideas to nouns and pronouns.

This quality is called modifying, and an adjective is a modifier. Proper adjectives are adjectives derived from proper names. We must capitalize most proper adjectives, e.g., Vietnamese refugees. Do not capitalize an adjective derived from a proper name when it has been used frequently and for a long time in the general language, e.g., ceasarean operation, venetian blinds.

Examples of adjectives: A small light showed in a lower window of the old factory.

The three old ladies lived in the big brick house.

Note: Use adjectives only when they are needed. When in doubt, strike it out.

Example:

Dr. Castro has frequently testified as an expert witness in radiology. Rather than:

Dr. Castro, is a known, respected, and often-used authority on radiology.

Adverbs

Adverbs are words that describe or expand the meaning of verbs, adjective, and other adverbs. They specify in what manner, when, where, and how much to make meaning more exact. The prefix ad in the word adverb means to, toward, or in addition to. It is easy to identify adverbs

because they usually answer the questions when, where, how, in what manner, or to what extent or degree.

Examples:

The witness testified loudly as the audience watched in awe.

It is much later than I thought.

Note: We must avoid over-using them because too many adverbs can bog down a sentence while adding a minimum of information. Adverbs we can readily omit in legal writing are: clearly, merely, and obviously.

Characteristics of Adverbs:

Adverbs are commonly, but not always, distinguished from corresponding adjectives by the suffix ly: example: bad badly, sure surely, cold coldly.

Some adverbs are distinguished from corresponding nouns by the suffixes wise and ways: endways, sideways, lengthwise. Certain adverbs are distinguished from corresponding prepositions in not being connected to a following noun:

Example:

Adverb: He ran up.

Preposition: He run up to the courtroom.

Like adjectives, adverbs may be preceded by words of the very group (intensifiers), unlike nouns and verbs:

Examples:

The most exotically dressed woman . . .

She went right by.

Prepositions

Prepositions show how a noun or pronoun is related to another word in a sentence. The word preposition comes from two Latin words which means placed before. A preposition is a word that is placed before some noun or pronoun.

Examples:

The witness came running into the room.

Remy parked behind the Starex van.

In this instance, I believe you are correct.

The shooting incident occurred on the bridge.

When Prepositions are used with a verb, the combination of verb and preposition usually has a meaning different from the verb alone.

Examples:

They laughed at the very idea of killing him.

I must look into the recommendation of the committee before I decide.

Have you come to any definite decision?

Note: Prepositional phrases are useful and necessary but do not forget the following SIMPLE RULES:

Avoid using many prepositions in a row. It has the tendency of making your reader get bored.

Example:

The department is required to submit a written explanation in the case of income derivatives of substantial size from the prediction of income for the calendar year 2000.

Also, avoid using a prepositional phrase when a shorter grammatical phrase could do.

Example:

In the event of the occurrence of a delay of the hearing

Use the objective case of pronoun (such as me, us, him, her, or them) that is the subject of a preposition.

Example:

This written contract between you and me should help us avoid any confusion in the future.

Rather than:

This written contract between you and I should help us avoid any confusion in the future.

Conjunctions

Conjunctions join words, phrases, or clauses. The word conjunction comes from two Latin words which mean to join with or to join together. Coordinating conjunctions connect sentence elements of the same value; single words, phrases, or clauses. These conjunctions are: and, but, for, or, nor, either, neither, yet, so, and so that. (Yet and so are used also as adverbs.)

Subordinating conjunctions join two clauses, the main one and the dependent (or subordinate) one. The conjunctions used with dependent clauses are: although, because, since, until, while, and others which place a condition on the sentence.

Note: Conjunctions serve as clear and effective transitions only when used accurately, so choose the conjunction that most accurately communicates the logical connection between the two sentences.

Example:

Although the project was not finished by the date scheduled for completion, the contract was not breached because the delay was due to a fortuitous event

Interjection

It is one that independently expresses feeling or strong emotion. The word interjection comes from two Latin words which mean to throw between. Interjections have no grammatical relation to any word or group of words in the sentence.

Examples:

Ouch! Ah! Boo! Hey!