Legal Technique and Logic - Final Exam Reviewer

Kiko Bautista • Bea Maravilla • Pauline Ongtenco • Christine Tabalingcos • Evan Obnamia’s Notes

The Lawyer’s World consists of: 1. Establishing a Legal Practice

• The lawyer himself/herself 2. Developing a Case
a. Client interview; Identification of the legal problem (i.e. the problem which
1. This realm is totally within one’s control, and it involves managing one’s may be resolved by application of legal principles and processes)
lifestyle, working habits, attitude, and degree of industry. Key skills to be b. Proposition of action to client; Giving legal advice regarding the potential
cultivated include the development of good timing and tactfulness. result of legal action
2. In professional practice, the main functions of an attorney are to: 3. Filing Initial Pleading
a. Provide General Counselling (cf. General Practitioner); 4. Pre-Trial Proceedings
b. Support Activities/Operations of Clients; and, a. Potential for out-of-court settlement
c. Handling Cases, which may consist of: 5. Trial of a Case

• Negotiation of Settlements; or, FACTS AND PROBABILITIES HYPOTHESES THEORY OF THE

• Undertaking Litigation CIRCUMSTANCES Consistent with CASE
• The Client human knowledge
• The operating environment (administrative/political, etc.) and experience
Fact 1 “it is not like him to “he must have been “A comprehensive
Review of Outline do something like badly threatened” and orderly
that” arrangement of
Fact 2 “he must have been principles and facts,
under great stress” conceived and
Fact 3 “He must have constructed for the
snapped” purpose of securing
a judgment or a
decree of a court in
favour of a litigant”

After Midterms: There is now a theory of the case. Next steps:

I. Matters to Consider Before Commencement of Action

A. Prescriptive Period
B. Jurisdiction and Venue
C. Choice of Legal Remedies

II. Pleading
A. Definition: Pleadings are allegations made by the parties to a civil or
criminal case for the purpose of presenting the issue to be tried and
determined.
B. Examples: complaint, answer, reply, counter-claim, cross-claim, third-
party complaint, etc.
C. Purpose: Set forth briefly and concisely the true points of controversy
between the parties
D. Form and Contents:
1. Methodical and logical
 Legal Technique and Logic - Final Exam Reviewer
Kiko Bautista • Bea Maravilla • Pauline Ongtenco • Christine Tabalingcos • Evan Obnamia’s Notes

2.Plain, concise, and direct statement of the ultimate facts on which 4. You eliminate almost completely the possibility of surprise at the
the party pleading relies for his claim to defense trial;
a) Ultimate Facts: Essential facts constituting the 5. Possible settlement before trial begins
plaintiff’s cause of action. B. Steps:
3. Must omit the statement of mere evidentiary facts 1. Possibility of an Amicable Settlement: An amicable settlement
E. Language: reasonable and ordinary meaning and import usually results from a pre-trial. The purpose of a pre-trial hearing
is to consider the possibility of an amicable settlement
III. Modes of Discovery 2. Simplification of Issues: The issues should be narrowed down by
A. Definition: Certain legal means intended to diminish the expenses of inquiring into those facts which may be agreed upon by the
litigation, expediting the administration of justice, and making suits not a parties.
battle of tricks, treacheries and surprises but a crusade for justice and 3. (Others are in Rule 20 Section 1, Rules of Court, but Sir didn’t
equity. discuss it)
B. Purpose of Discovery: C. Other Notes:
• Reduce costs & time spent • The pre-trial brief is a crucial document, prepared by counsels for the
• Speed up the trial of cases, in service of the speedy delivery of justice parties to the case, which contains the plea of the parties with regard
C. Modes: to the relief they seek from the court, the list of witnesses, and the
1. Deposition essence of their testimonies.
a) Definition: Any written statement verified by oath • During pre-trial conference, issues concerning technical matters, may
b) Methods for taking deposition: be submitted to the expertise of a commissioner, with the consent of
(1) Upon oral examination (duly recorded) both parties.
(2) Upon written interrogatories • The writing of a Pre-Trial Brief must be concise and succinct, without
• Perpetuation of Testimony superfluities, because it seeks to lay out the case which the lawyer
o Deponent is terminally ill or physically may later argue before court.
incapacitated • The contents and strength of the case based on the pre-trial brief will
o Deponent is physically absent make it apparent whether conciliation or trial is more beneficial to the
● Note: The personal preference of a witness is preferable interests of the client.
to deposition, because “sight and hearing combine, and • It consists of the following Main Parts:
the attention is more thoroughly aroused than it is when o “General Panorama” of the Case
the testimony is read from a paper” - only do depositions § This section must paint a clear picture of the
when the witness really couldn’t appear content and, just as importantly, the limits of the
2. Inspection of documents, things, lands or any property case.
3. Physical and mental examination of persons: when the mental or § In general, it should consist of:
physical condition of a party is in controversy, the court may • The facts to be proven;
order the party to submit to physical or mental examination by a • Any documentary evidence to be offered;
physician. and,
4. Admission by adverse party • Any witnesses, and their testimonies,
D. Consequence of refusal to make discovery: contempt (among others) preferably in question-and-answer format.
o Brief of the Law & Jurisprudence
IV. Pre-Trial § This section lists the particular provisions upon
A. Why it is important: which the party wishes to base his legal argument.
1. Proof of cause of action/counterclaim through admissions of the It should aim for quality over quantity, listing only
opposing party the most relevant laws.
2. Examine opponent’s real defense § The case should also list the most relevant
3. You have your adversary’s entire answer to your case under oath, jurisprudence, listing Supreme Court decisions
so that it cannot be enlarged or diminished;
 Legal Technique and Logic - Final Exam Reviewer
Kiko Bautista • Bea Maravilla • Pauline Ongtenco • Christine Tabalingcos • Evan Obnamia’s Notes
which advert to key principles of law or where the
facts are “on all fours” with the instant petition.
o Resume of the Facts
§ This section is a straightforward and concise
narration of the facts upon which the plea is based.
o Abstract of the Pleadings
§ This contains allegations, admissions, and
defences
• At the end of the day, winning the case is about the credibility of:
o The evidence;
o The attorney; and,
o The witnesses.
V. Witnesses
A. Why interview witnesses to prepare for a trial (purpose):
1. To know the information that the witness knows;
2. To know each witness (himself/herself).
B. Things to note:
1. Interviewing the witness should not be delegated
2. Practice the story several times, not just for direct examination,
but also for cross.
3. Ask searching questions to determine the bad points of the
case.
4. Memorizing the testimony should be discouraged.
5. The human element always intrudes, but a careful lawyer will take
the trouble to point out the pitfalls to his witnesses before the trial.
6. The witness should not be afraid to be frank: he can admit that
he does not remember what happened if he really didn’t
remember what happened.
7. You can gather information about witnesses of the other side
(within the bounds of ethics)
8. The lawyer should make written notes in the course of the
interview of both client and witnesses.
C. Witnesses to be Called:
• Essential testimony; Background investigations
• Capacity of witnesses to testify; Susceptibility to preparation
• Expert witnesses à Use tailored questions to avoid loose ends
• Prepare witnesses for manipulation
• Careful cross-examination allows counsel to develop arguments
through both his own and the opposition’s witnesses
• Coaching:
o Witnesses are difficult to control, and once on the stand,
under clever cross-examination, they can advert to facts
which do not help one’s case.
• Witness Preparation
o Facts and Circumstances – Learn the what, who, where, and
when of the case, and to get to know the witness.
o Legal Logic – Learn the why of the case
o Legal Technique – Answers the question of how the case
should be approached and argued.
• Appearance or Demeanour of Witnesses may affect how their
testimony is received, believed, or comprehended.
VI. Trial Brief
A. Definition: The trial brief represents the complete preparation of the
case for trial. It includes the preparation of the facts, the law, and the
pleadings.
B. Contents of a true brief:
1. The diagram of the case
a) A systematic diagram of the facts to be proved and the
witnesses and other evidence to be used therefor
b) Facts should be presented in a logical sequence and to
an interesting climax
c) Should prove not only a prima facie case, but a case
sufficient to warrant a favorable verdict
2. A resumé of the facts in narrative form
a) Brief narrative statement of the facts of the case, devoid
of artificialities and complicated allegations of the
pleadings
3. A list of the witnesses and an abstract (in narrative form) of each
witness’ story together with a detailed signed statement from
each witness in question and answer form, if any
a) Basically: You list your witness, and a summary of your
witness’ story/ies (“abstract form”) is beside the witness
b) Best to list this in chronological order
4. An abstract of the pleadings of both sides. Must show:
a) Allegations and charges made;
b) Elements and measure of damages to be proved;
c) Admissions in opponent’s pleadings;
d) Affirmative defenses set out by opponent.
5. Brief on the law
a) No law, no case
b) The trial brief should contain the favorable authorities
both on the clients’ cause of action of defense, as well
as on the admissibility or inadmissibility of his or his
opponent’s evidence.
C. Characteristics of a good trial brief
1. Methodical (orderly)
2. Brevity and clearness (KISS)
3. Authoritativeness of cited precedents
 Legal Technique and Logic - Final Exam Reviewer
Kiko Bautista • Bea Maravilla • Pauline Ongtenco • Christine Tabalingcos • Evan Obnamia’s Notes

a) Focus on quality rather than quantity • In all his dealings with the court, the lawyer should not in the least
b) Arguments should be clear and unequivocal irritate the judge
c) Arguments should be logical • A quiet, restrained, reasoned approach is always much more
VII. Strategies for Handling a Trial persuasive to a judge.
1. Delay à 2 phases = CPR and Professionally sound • Don’t show up the opponent!
2. Creation of doubt C. Dress
3. Destruction of credibility (ies) • Form, not fashion, is the first consideration
4. Springing surprise • Clothes must be correct, of good material, and beautifully tailored.
D. In General
VIII. Evidence • The trial lawyer is like a military man. He must plan his campaigns
• Definition: Evidence is the means, sanctioned by law, of ascertaining in a along definite lines. A good trial lawyer will press on with his
judicial proceeding the truth respecting a matter of fact. preconceived strategy without allowing himself to be diverted by any
• Evidence is the means of proof, while proof is the effect of evidence. maneuver of the opponent. He keeps right on the main track of every
• When admissible: When it is relevant to the issue and not excluded in the case, no matter how complicated. Whatever may be the diversionary
Rules of Court tactics of the opponent, he should be fought at the time, place, issue
• When relevant: When it relates directly to a fact in issue, or to a fact from and manner that the trial lawyer has planned. Then success will be the
which, by the process of logic, an inference may be made as to the existence reward.
or non-existence of a fact in issue.
• Sources: FACTS AND PROBABILITIES HYPOTHESES THEORY OF THE
o Real: addressed to the senses of the court (also called “autoptic CIRCUMSTANCES CASE
proference”) – the best and highest proof Fact 1 “it is not like him to “he must have been
o Testimonial: Testimony of man (may be oral or written) do something like badly threatened”
o Circumstantial: That of any circumstance, not a human assertion, nor that”
an “autoptic preference,” from which an inference may be taken as to Fact 2 “he must have been
the existence or non-existence of a fact in dispute under great stress”
• Judicial Notice/Knowledge: The cognizance that courts may take, without Fact 3 “He must have
proof, of facts which they are bound or supposed to know. Takes place of snapped”
proof; as good as proof.
• Presumption: An inference to the existence of a fact, not actually known, The Orchestra Metaphor
arising from its usual connection which is known. May be either: ORCHESTRA – counsel as the conductor
o Presumption of law The conductor (just like the lawyer) does not play any instrument but knows exactly how the
o Presumption of fact instruments (characters in a trial: witnesses, client, etc.) are supposed to sound like. A lawyer
is meant to facilitate the presentation of all of the above-mentioned elements of a trial.
IX. Other Matters: Advices for the Trial Lawyer
A. Attitude of the Lawyer
• Belief in the client’s cause is essential - a lawyer is partisan
• Self-confidence: The trial lawyer must have a certain amount of
confidence in himself
B. Demeanor/Personality of the Lawyer
• The client retains the lawyer not only because he has confidence in
his legal ability, but also because he has confidence in his persuasive
ability.
• Personality is the sine qua non of a trial lawyer. It is not always a
question of good looks.