Writing Trial Memorandum and Legal Opinion

Changes in the Bar Exams

1. Multiple Choice Questions 2. Essay Test a. Trial Memorandum b. Legal Opinion
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Your role when taking the essay test

You take the role of a lawyer who is presented with a problem and you are required to look for a solution within the framework of the legal system
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How you will address the problem

a) Facts Get the facts b) Rules Know the applicable rules & remedies c) Application Use the rules & remedies to address your client s specific needs
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Examiner will test

a) your knowledge of the rule of law or legal rule refers to legal provisions, court rulings or legal theories applicable to the problem
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Examiner will test

b) your analytical skills in sorting out the material and relevant facts finding the rule of law or legal rule involved identifying the issue/s justifying the position you have taken
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Examiner will test

c) your persuasive skills how to convince the reader to your point of view d) your English writing skills command of grammar and effective writing
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Broad meaning of memorandum

a) A document that presents a legal problem (facts:law= issue) and offers a solution b) Other names- legal opinion, research, position paper, memo of law, etc.
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Bar Essay formats Trial memorandum

submitted to the court after trial in which you state and justify your client s position

Legal opinion
advice to the client on position to be taken regarding a legal problem

Trial memorandum
Presumed audience Your role Court

Legal opinion
Client

Counsel for a party in the Counsel giving litigation legal advice State and explain the position of your client, and persuade the court Give advice and persuade the client to take your advice

Purposes

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Legal reasoning = the mental process of

(a) applying the law to (b) the facts of a legal problem, and (c)drawing conclusions from such application by means of arguments, in order to (a) support the side of a party (trial memorandum) or to give advice to client (legal opinion)
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Structure of your essay

Traditional Formula I R A C Issue Rule Application/Analysis/ Argument Conclusion
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I R A C

Recommended
F I R A C C

F I R A

Facts Issue Rule

Application/Analysis/ Argument C Counter-Argument

C Conclusion
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FIRACC steps
1. F Start with the Facts 2. I Facts suggest the Issue 3. R Rule of law covers the Issue 4. A Apply the Rule to the Facts 5. C - Counter the argument of the opposing side 6. C - Wrap up with a Conclusion
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Step 1. Start with the Facts

Kinds
Key facts material and relevant facts necessary to analysis Background facts add to the story but not necessary to analysis

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Analyze the factual elements of the problem

What is the thing, act or event? Who Who are the parties? Where Where did it happen? When When did it happen? What

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Step 2. The Facts suggest the Issue

You read the facts from your background knowledge of the law The facts will encounter or meet with the law as you know or understand them The encounter of the facts with the law creates the issue

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Meaning of Issue
Point of law or fact which is affirmed by one side and denied by the other Issue may be purely legal, or purely factual, or a mix of both

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Step 3. A Rule of Law covers the Issue

Sources of the Rule of Law
Legal provision e.g. statute Intention of the law Case law (stare decisis] Policy Equity
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Kind of rule of law involved

What law is applicable? What is the legal theory? What relief is being asked? What procedure is required?
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Step 4. Apply the Rule to the Facts

Components of analysis
a) Apply the Rule (legal elements) to the Facts (factual elements) What is the Rule involved? What Facts will prove or disprove the element of the Rule?
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b) Take a position (proposition, thesis, stand or point of view)

Generally, there are two opposing positions to a legal problem Evaluate which position has more arguments favorable to it Take a position
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c) State your Arguments to support your position and to counter the arguments of the opposing side d) Finish with a Conclusion

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Apply the law to the facts You argue based on your analysis of the rule of law Your sources or materials of argument will come from the rule of law
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Rule of Law as the material or source of your argument

a) Argument based on the Law b) Argument based on the Intention of the law c) Argument based on Case Law d) Argument based on Policy e) Argument based on Equity
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Argument based on the Law and/or Intention of the Law

1. 2. 3. 4. Position: The answer is X The law applicable is (state the law). The law is intended to (state) The elements of the law are (state all or the relevant elements) The elements of the law are proved/disproved by the following facts (state) Therefore (conclusion)
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5.

Argument based on Case Law (reasoning by analogy)

Position: The answer is X The facts are analogous to those in the case of ___ where the Supreme Court came out with X ruling 3. The facts of this case and those in the cited case are similar/ dissimilar (compare and contrast) 4. Therefore (conclusion)
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1. 2.

Argument based on Policy

(the State or social policy, the good desired & the harm to be avoided) 1. The policy behind the legal provision is (state the policy) 2. This policy will be strengthened/ undermined (relate to the position you ve taken)

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Argument based on Equity (general

principles of justice & fairness to temper the harshness of strict legal application) 1. A strict application of the law will lead to (state the harmful effects) 2. Therefore (conclusion)

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Structure of your argument Syllogism

a) Deductive i. Major premise Rule of Law ii. Minor premise Facts iii. Conclusion
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b) Inductive
i. Major premise Facts ii. Minor premise Rule of Law iii. Conclusion

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c) Argument by Analogy
i. Factual setting and rule in a decided case ii. Similarity/dissimilarity of the facts in the problem with those in the decided case iii. Conclusion
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Step 5. Counter the possible arguments of the opposing side

1. The opposing side may argue that (state the possible argument/s) 2. The argument/s is/are refuted by (state your reasons) 3. Therefore (conclusion)

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Step 6. Conclusion

Make a concluding statement that wraps up your analysis

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Trial Memorandum

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Outline of Trial Memorandum

I. II. III. IV. V. VI. Statement of the Case Statement of the Facts Statement of the Issues Discussion Conclusion Prayer
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I. Statement of the Case

State briefly the nature of the case, the parties involved, subject matter, and the relief being asked

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I. Statement of the Case

Alternative headings The Case The Case, In Brief Nature of the Case Nature of the Action
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II. Statement of the Facts

Summarize the material and relevant facts of the case
1. 2. 3. 4. 5. Be orderly. Chronological, as a rule Be honest. Don t twist deliberately.. Be accurate. .. or unwittingly Be clear. Don t confuse the reader Be brief. Stick to the material and relevant
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II. Statement of the Facts

Alternative headings The Facts The Facts, In Brief Summary of the Facts Factual Summary Factual Antecedents
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III. Statement of the Issues

Suggestions:
1. 2. 3. Start with Whether or Whether or not Keep the issue short and direct to the point Omit needless words (adjectives or adverbs)
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IV. Discussion
Alternative headings
Argument or Arguments Argument and Discussion

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IV. Discussion
You take a position and explain Suggestions:
1. 2. Discuss per issue Use the deductive, inductive or analogy structure
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3. State the facts which support or do not

support the legal rule. 4. Give additional reasons or arguments. 5. Counter-Argument a) State the main arguments that may be raised by the opposing side b) Refute

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V. Conclusion
Alternative headings

1. Summary or Summation
2. Final Note or Last Word

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VI. Prayer State the relief you are asking from the Court. Alternative heading: Relief

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Legal Opinion

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TRIAL MEMORANDUM Statement of the Case

LEGAL OPINION Subject The Facts Questions/ Queries Assessment

F I R A C C

Statement of the Facts Statement of the Issues Discussion

Applicable Laws/ Legal Theories Application/ Analysis/ Argument Counter Argument Conclusion/Prayer Recommendation
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Thank you!

Atty. Loreto C. Ata

www.mabgslaw.com.ph

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