TRIAL MEMORANDUM WRITING GUIDE

ATENEO CENTRAL BAR OPERATIONS 2012 ACADEMICS COMMITTEE Academics Head: Pierre Martin Reyes Understudy: Clariesse Jami Mari Chan REVIEW COMMITTEE Head: Yla Gloria Marie Paras Understudy: Ken Koga Members: Catherine DelaRosa; Eric Lavadia; Iris Lucido; Pearl Charisse Bautista; Mina Reyes

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TRIAL MEMORANDUM GUIDE

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GENERAL REMINDERS
1. 2. 3. 4.

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Do NOT write your names or make any markings that will identify you or your paper. Do NOT sign the legal opinion or legal memorandum. Not even with the signage Juan de la Cruz. READ AND REREAD the problem carefully Organize your thoughts before writing a. What are the relevant facts b. What are the issues c. What law should apply d. What jurisprudence supports the stand taken e. How the law and jurisprudence apply in the case at bar 5. Make an Outline in your draft pad. 6. Do NOT add nor assume facts that is not given in the problem 7. Write legibly. 8. Proofread your work in the answer pad. 9. You should be using your answer pad during last hour. 10. Be conscious of the time. 11. Do NOT add jurisprudence or cases that is not given in the problem. 12. Do NOT copy verbatim the TSN and the jurisprudence. One sentence is enough.

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20 MOST COMMON ERRORS

Common Error Irregardless Aggravate. Irritate. Allude. Elude. Among. Between. However As to whether Worth while. With regards to/in regards to. Precede. Proceed. Farther. Further. Imply. Infer.

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1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) Correct Usage Instead use Regardless To aggravate means to add to, to irritate means to vex or annoy. Allude means to indirectly mention a thing, to elude means to evade. Use among when two or more persons are involved. Use between when more than two are involved but each is referred to individually. Often used in place of nevertheless at the start of a sentence. Should only be used then when the meaning is in whatever way or to whatever extent. Instead use whether Instead use worthwhile [as one word] or a stronger word. Should be in regard to or as regards Precede means to come before while proceed means to move forward. Farther refers to distance, while further refers to time. To imply is to suggest or indicate a thing, while to infer is to deduce something from the evidence at hand. Avoid using the term by rephrasing the sentence. Often misused for fewer. Less refers to quantity, fewer to number. Often used in place of the conjunction as. Like governs nouns and pronouns, as is used for phrases and clauses. Often used instead of almost Alternately means in turn or one after the other. Alternatively means one or the other.

12) Importantly 13) Less. 14) Like. 15) Most. 16) Alternately. Alternatively.

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17) Its. Its. 18) Kind of. Sort of. 19) In terms of. One of the most. 20) Noun used as verb.

Its is a contraction for it is, while its is the possessive form of it. Often used in place of rather or something like, but should be restricted to its literal meaning. Best omitted from the sentence, provides no added value. Instead of The candidate hosted a dinner for fifty of her workers, say The candidate gave a dinner for fifty of her workers.

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I. II. III. IV. Statement of the Case (if appellate pleading) Statement of Facts Issues Discussion a. 1st / 2nd/ 3rd/ 4th/ argument b. Laws and jurisprudence applicable c. Analysis d. Discussion Prayer

SKELETAL OUTLINE OF LEGAL MEMORANDUM

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SAMPLE PROBLEMS
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A. CRIMINAL CASE
Instructions: Consider the following direct testimonies given in a hypothetical case for murder. Assume that you are the lawyer for either of 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 Witness for Victim ATTY: Who stabbed M? WITNESS: Y. ATTY.: Where was Y when he stabbed M in relation to the latter? WITNESS: At the back of M, to his left. ATTY.: How far were you from M when Y stabbed M? WITNESS: Around five steps away. ATTY.: What happened to M when he was stabbed by Y?/ WITNESS: He ran towards me then shouted, "I am hit, I am wounded". ATTY.: And what did you do when M approached you? WITNESS: I was also approaching to help him. ATTY.: Where was M when you approached him? WITNESS: He was lying face down [on] the ground. ATTY.: In other words, he fell to the ground and he was lying face downward? WITNESS: Yes, sir.

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ATTY.: When you approached M to help him, what happened? WITNESS: I was about to help him but the two of them rushed towards me. ATTY.: What kind of night was that when you were walking along the road going to your house from the store? WITNESS: It was a clear night because there were stars. ATTY.: Because Y and S rushed towards you when you were about to help M, what did you do? WITNESS: I ran but looking backward. ATTY.: When they, meaning S and Y rushed towards you what were they holding, if any? WITNESS: They were holding a knife. ATTY.: While you were running looking backward, what did you see? WITNESS: I saw that they stabbed M several times at the back. ATTY.: Who stabbed M several times at the back? WITNESS: The two of them. ATTY.: Where was Y in relation to M who was lying face downward while he was stabbing M? WITNESS: M was struggling while the other was stabbing him. ATTY.: What about S? WITNESS: He was also there. ATTY.: Where did you proceed? WITNESS: I went home to our house. 2. Sworn Statement of Witness for Victim Question: Can you narrate to me the facts of the incident? Answer of G: That at about 7:30 o'clock in the evening of March 13, 2005, while M and I were drinking at the store. S and his companion arrived at the said store and then we drunk together and after thirty minutes of drinking, all of us went home wherein M and I were ahead of them but instead of going their way, S and his companion followed us and with a distance of about half a kilometer from the place where we drank, they reached us and upon reaching us, without any provocation they stabbed M with their knives and upon seeing the incident, I attempted to help M but they turned on me and so I ran away leaving M with wounds 3.Testimony of Accused COURT STAFF: (After swearing in the Accused) State your name and personal circumstances. WITNESS: I am Y, 30 years old, and I work in Ss farm. Q: With the Courts permission. Y, do you know the victim, M? A: Yes maam. He was one of my drinking companions during the night of the incident. Q: Where were you drinking? A: At a store located in our neighborhood. Q: How many were you drinking? A: There were four of us. Q: Who were you drinking with? A: S, C and G. Q: How long were you drinking? A: Around two hours. Q: What were you drinking? A: We were drinking whisky. Q: What did you do after the drinking session? A: S and I left and went directly to his house. We ate supper and slept. Q: Did anybody see you at that time? A: No, S and I were alone. Q: What happened afterwards? A: The next day S and I went to work at Ss farm. Q: How did you hear about Ms death? A: I only found out when police officers came to my house. Q: That was how many days after the incident? A: Eleven days. Q: That is all for the accused, your honor.

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Laws and Jurisprudence that may apply Revised Penal Code Art. 8. Conspiracy and proposal to commit felony Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. Art. 63. Rules for the application of indivisible penalties In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Art. 246. Parricide Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Art. 247. Death or physical injuries inflicted under exceptional circumstances Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. Art. 248. Murder Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward, or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his

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person or corpse. Art.251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. Article 252. Physical injuries inflicted in a tumultuous affray When in a tumultuous affray as referred to in the preceding article, only serious physical injuries are inflicted upon the participants thereof and the person responsible thereof cannot be identified, all those who appear to have used violence upon the person of the offended party shall suffer the penalty next lower in degree than that provided for the physical injuries so inflicted. When the physical injuries inflicted are of a less serious nature and the person responsible therefor cannot be identified, all those who appear to have used any violence upon the person of the offended party shall be punished by arresto mayor from five to fifteen days. Civil Code Art. 2224 Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty. Art. 2225 Art. 2230 Temperate damages must be reasonable under the circumstances.

In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Jurisprudence: Mercado v. People G.R. No. 161902, September 11, 2009 Alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment. Such discrepancies do not necessarily discredit the witness since ex parte affidavits are almost always incomplete. The discrepancies only erase suspicion that the testimony was rehearsed or concocted. These honest inconsistencies serve to strengthen rather than destroy the witness's credibility. People v. Cadley, G.R. No. 150735, 15 March 2004 That a judge did not hear a case does not necessarily render him less competent in assessing the credibility of witnesses. He can rely on the transcripts of stenographic notes of their testimony and calibrate them in accordance with their conformity to common experience, knowledge and observation of ordinary men. Such reliance does not violate substantive and procedural due process of law. People v. Aguila, G.R. No. 171017, 6 December 2006 Denial is inherently a weak defense as it is negative and self-serving. It cannot prevail over the positive identification and testimony of witnesses unless buttressed by strong evidence of non-culpability. People v. Del Rosario, G.R. No. 189580, February 9, 2011 When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the

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victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages. People v. Labitad, G.R. No. 132793, May 7, 2002 The settled rule is that witnessing a crime is an unusual experience that elicits different reactions from witnesses for which no clear-cut standard of behavior can be drawn. Different people react differently to a given situation. There is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience.

SAMPLE MEMORANDUM MEMORANDUM FOR RESPONDENT Respondent, by counsel, respectfully submits this memorandum, as follows: STATEMENT OF THE FACTS 1. 2. 3. 4. 5. Y and S are accused of the crime of murder. It is alleged that they killed M by stabbing him with their knives; M and G were drinking in a store. Accused Y and S joined them and they drank together. After thirty minutes of drinking, they all went home. M and G went ahead. S and Y followed them; When Y and S reached M and G, they stabbed M without any provocation. They turned on G but he ran away leaving M with wounds; G rested for thirty minutes before reporting the incident to the relatives of M. G testified before the court with regard to the incident. ISSUES 1. Whether the testimony of G is credible. ARGUMENTS AND DISCUSSION Failure to mention the actual name of the perpetrator in his sworn statement before the police authorities does not militate against witness's credibility. Witness positively identified the appellant as the one who stabbed the victim. Although there have been a few inconsistencies in his statement, according to Maceda v. People, Alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment. Such discrepancies do not necessarily discredit the witness since ex parte affidavits are almost always incomplete. A sworn statement or an affidavit does not purport to contain a complete compendium of the details of the event narrated by the affiant. Sworn statements taken ex parte are generally considered to be inferior to the testimony given in open court. People react differently when confronted with a startling or frightful experience. G's narration in his sworn statement is consistent in all material points with his testimony in open court. The witness strikingly unusual behavior following the stabbing incident does not deserve any merit. People v. Labitad stated that, the settled rule is that witnessing a crime is an unusual experience that elicits different reactions from witnesses for which no clear-cut standard of behavior can be drawn. Different people react differently to a given situation. There is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience."

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People v. De la Cruz describes that The essence of treachery is that the attack comes without a warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape. Given that the stabbing occurred from behind, without allowing the victim to resist or escape, there is also treachery. PRAYER WHEREFORE, it is most respectfully prayed that the Accused is be found guilty beyond reasonable doubt of the crime of murder. Other kinds of relief, just and equitable under the premises are likewise prayed for. Manila, Philippines, November 26, 2011

B. CIVIL CASE
Instructions: Consider the following direct testimonies given in a hypothetical case for murder. Assume that you are the lawyer for either of 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. P sold to XYZ Corporation parcels of land. The parties agreed that the purchase price would be P3,700,000.00. The Deed of Absolute Sale contained the following: 1. Upon execution of this instrument, the Vendee shall pay unto the Vendor sum of TWO MILLION AND TWO HUNDRED THOUSAND (P2,200,000.00) PESOS, Philippine Currency, less all advances paid by the Vendee to the Vendor in connection with the sale; 2. The balance of ONE MILLION AND FIVE HUNDRED THOUSAND [P1,500,000.00] PESOS, Phil. Currency shall be payable within ONE (1) YEAR from date of execution of this instrument, payment of which shall be secured by an irrevocable standby letter of credit to be issued by any reputable local banking institution acceptable to the Vendor. xxxx 4. All expense for the registration of this document with the Register of Deeds concerned, including the transfer tax, shall be divided equally between the Vendor and the Vendee. Payment of the capital gains shall be exclusively for the account of the Vendor; 5% commission of L to be deducted upon signing of sale. The Corporation did not pay in full. It paid only P1,213,000.00. Hence, P refused to deliver the TCTs and execute a Deed of Absolute Sale. Testimony of P: [Q] Now, why did you deliver these three titles to the plaintiff despite the fact that it has not been paid in full the agreed down payment? A: Well, the broker told me that the down payment will be given if I surrender the titles. Q: Do you mean to say that the plaintiff agreed to pay in full the down payment of P2,200,000.00 provided you surrender or entrust to the plaintiff the titles? A: Yes, sir. Q: Of course, you have it transferred in the name of the plaintiff, the title? A: Upon full payment. Q: When you said upon full payment, are you referring to the agreed down payment of P2,200,000.00? A: Yes, sir. Q: Do you have any proof to show that you have indeed surrendered these titles to the plaintiff? A: Yes, sir. Q: I am showing to you a receipt dated October 29, 1983, what relation has this receipt with that receipt that you have mentioned?

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A: That is the receipt of the real estate broker when she received the titles. Q: On top of the printed name is Manny , there is a signature, do you know who is that Manny ? A: That is the son of the broker. Q: May we know the full name of the real estate broker? A: L Q: Do you know if the broker or L indeed delivered the titles to the plaintiff? A: That is what [s]he told me. She gave them to the plaintiff. Q: Are you really sure that the title is in the hands of the plaintiff? Q: It is in the hands of the broker but there is no showing that it is in the hands of the plaintiff? A: Yes, sir. Q: How do you know that it was delivered to the plaintiff by the son of the broker? A: The broker told me that she delivered the title to the plaintiff. Q: Did she not show you any receipt that she delivered to [Mr.] Dragon the title without any receipt? A: I have not seen any receipt. Q: So, therefore, you are not sure whether the title has been delivered to the plaintiff or not. It is only upon the allegation of the broker? A: Yes, sir. Testimony of L : Q: The defendant, P testified during the hearing on March 11, 1986 that he allegedly gave you the title to the property in question, is it true? A: I did not receive the title. Q: He likewise said that the title was delivered to your son, do you know about that? A: I do not know anything about that. Laws and Jurisprudence that may apply Civil Code ART. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. Art. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. However, the demand by the creditor shall not be necessary in order that delay may exist: (1) When the obligation or the law expressly so declare; or (2) When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or (3) When demand would be useless, as when the obligor has rendered it beyond his power to perform. In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins. (1100a) Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages. (1101) Agas v. Sabico, G.R. No. 156447, April 26, 2005 It is settled that the clarity of contract terms and the name given to it do not bar the Court from ascertaining the true interest of the parties.

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SAMPLE MEMORANDUM: MEMORANDUM FOR RESPONDENT Respondent, by counsel, respectfully submits this memorandum, as follows: STATEMENT OF THE FACTS 1. 2. 3. Respondent, XYZ Corporation (Corporation), is a domestic corporation, engaged in the real estate business. It is being held liable to pay the outstanding balance plus interest for the sale of parcels of land with Petitioner, P, and in the alternative, to cancel the sale and forfeit the P1,213,000.00 partial downpayment, with damages in either case; P sold to XYZ Corporation parcels of land. Both parties agreed that the Corporation would pay P the sum of P2,200,000.00 upon execution of the Deed of Absolute Sale. The Deed was then retained by P for notarization; The Corporation paid P1,213,000.00 as partial downpayment. Yet, despite the Corporations readiness and ability to pay, P refused to deliver the TCTs and the original copy of the Deed of Absolute Sale; ISSUE 4. Whether P is entitled to damages? ARGUMENTS AND DISCUSSION In Agas v. Sabico, it was held that the clarity of contract terms and the name given to it do not bar the Court from ascertaining the true intention of the parties. Parole evidence may be used to ascertain such intention. P himself admitted, in his testimony, that the submission of all the TCTs is a precondition to the full payment of the P2,200,000.00, down payment as mentioned in the contract. Since the TCTs are not in the possession of the Corporation, said Corporation could not be said to have been in remiss in its obligation to pay the full P2,200,000.00. It is clear that the contract involved in this case, gave rise to a reciprocal obligation. Article 1169 of the Civil Code provides: xxx xxx In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfils his obligation, delay by the other begins. The TCTs were not delivered to the Corporation, therefore P failed to comply with the obligation incumbent upon him. Considering that both parties failed to comply with their corresponding obligations neither party is in delay. PRAYER Wherefore, it is respectfully prayed that the case for damages be dismissed for lack of merit. Other kinds of relief, just and equitable under the premises are likewise prayed for. Manila, Philippines, November 26, 2011

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