Memorandum Writing (Dean Aquino)

UNIVERSITY OF THE CORDILLERAS BAR OPERATIONS 2011
MEMORANDUM WRITING

Prepared by:
DEAN HONORATO AQUINO

BAR OPERATIONS 2011 Page 1

Yakang-yaka mo to pre!
(OR, HOW TO WRITE A MEMORANDUM
IN THE BAR EXAMINATION ROOM)

Not too long ago, I was privileged to sit in a Board of Arbitrators where the
disputants were the STRADCOM and the LRA. We were three. The Chair was ret. SC
Justice B, and the other member was ret. Sandiganbayan Justice Q.

Of the three, I was the only practitioner. During a lull in the proceedings, J. B told
me, Kayo namang mga practitioners, hwag naman kayong mag-file ng memorandum na
sobra sa 15 pages. Kitamo ngayon, sa aming edad, mahirap nang magbasa.

The first rule of the memorandum writer is to make it easy for the reader. That
should be your guiding principle, whatever style or form you follow. From the caption
down to the prayer stay simple. Do not make it hard for the corrector. Dont make him
hate you.

Lawyers are fond of big words. Instead of saying aver they say asseverate.
We are fond of bombast, lofty locutions, high-sounding words, pompous rhetoric. We
are full of ourselves and we tend to parade our knowledge and vocabulary at every
opportunity.

In contrast, when the apostle Paul ministered to the early Christians he did not
try to impress them. In his letter (or memorandum) to the Corinthians (1 Cor 2:1) he
said, When I came to you I did not come with excellence of speech or of wisdom
declaring to you the testimony of God. He is the greatest teacher of the Christian
Church, and yet he spoke simply and wrote simply, using ordinary monosyllabic words.

STATEMENT OF FACTS

In writing your memorandum you are supposed to omit the caption. You are
supposed to start with the Statement of Facts. It is common practice to open with a
Prefatory Statement, but that is nothing but palamuti and I doubt if the judge or
magistrate ever takes a sidelong glance at it. I think you will do well to omit it.

The Statement of Facts is a summary of the important facts of the case. Some
lawyers number their facts serially. That is good form, if the relevant facts are that
many and the story is long. But if the story is short and simple, I find the numbers
distracting.

GREEN NOTES IN MEMORANDUM WRITING
Prepared by: DEAN HONORATO AQUINO


Somewhere in the Instructions you are advised to be creative. Creativity in a
lawyers work is always a plus, but not when it comes to stating the facts. In stating the
facts be precise. To be precise it is suggested that you adhere to the presentation of the
problem by the examiner.

For purposes of the exam we will assume that the given facts are undisputed.
There is a transcript of the Q & A testimony of the plaintiff, and another transcript of the
Q & A testimony of the defendant. Notice that the testimony is limited to direct
examination. No cross. So we can safely presume that both witnesses are telling the
truth, and the facts set forth in their testimonies are undisputed. That simplifies our
work.

If the examiner gives us the facts what should you watch out for? I think what
you should watch out for are the possible irrelevancies, details that have no bearing on
the subject of the controversy. You may be expected to winnow the chaff from the grain.

You can be selective, especially in a criminal case. You can omit those facts that
are contrary to what you want the court to perceive as the truth. No point in helping the
opposing party build his case against you. You are not the judge. You are an advocate.
And you are there to win. If the judge cannot find the truth in your submission, let him
look for it elsewhere. If he fails to discover the truth, perhaps its not what is called the
judicial truth. Either that or hes doing a sloppy job of judging.

In preparing a trial memorandum, an experienced lawyer saves the Statement of
Facts for last. (But of course it comes out first in the final form.) Having marshaled his
arguments, in accordance with his theory, he is now ready to be selective in his
Statement of Facts. He includes only those facts that are favorable to his client.

You can do that too. You will be provided with a scratch pad where you can make
a rough draft. You start with your Arguments and end up with your Statement of Facts.
Of course, in the final form the Statement of Facts comes first, followed by the Issues.

In doing your Statement of Facts do not take to heart the advice in the
Instructions to be creative. You can be creative but not by inventing events or changing
the facts. You can be creative in selecting and spotlighting the facts favorable to your
cause or defense.

Do not be an artist and start in media res, or in the middle of the action and then
flash back. And do not get carried away and fast forward. This is not a movie script
youre writing. You have to set forth the facts consecutively, as they happened.

It is the practice to cite the exhibits (documentary evidence) and the transcript
of stenographic notes or tsn (testimonial evidence) through the use of footnotes or, in
the case of the courts, end notes. But obviously you cannot have footnotes or end notes
in a handwritten memorandum.



You can show that you are not telling a story from the top of your head by
occasionally citing the exhibits and the transcript of stenographic notes. In the sample
problem, you are given a tsn of the direct examinations of the plaintiff and the
defendant. You can cite the relevant Q & A in the tsn and enclose the citation in a
parenthesis. Example: (Tsn, November 15, 2011, p. 2, 2
nd
to the last Q &A, plaintiff
testifying.)

In an actual memorandum the relevant Q & As are quoted copiously to convey
the full flavor of the relevant testimony. But you do not have that luxury in the exam. It
is enough to cite the tsn and enclose the citation in a parenthesis.

STATEMENT OF THE CASE

A Statement of the Case is different from a Statement of the Facts. A Statement of
the Case is standard when the case has moved up the judicial ladder and is now on
appeal or on certiorari. It tells the story of the case from the time it was initiated in the
lower court and traces its journey to the higher court. But since what you will be asked
to write is a trial memorandum, it is presumed that the case is still before the trial court,
and therefore there is no need for a Statement of the Case.

I S S U E S

There should be a tight correspondence between the Issues and your
Arguments. In the Instructions you are advised not to put forward more than four (4)
arguments. Therefore, you should have no more than four Issues.

It is my practice to formulate my Arguments ahead of the Issues. After I have
marshaled my Arguments, it becomes a simple matter to rephrase them into Issues. The
danger in formulating the issues first is that you might just shoot yourself in the foot,
i.e., you might incautiously create an issue for which you have no argument, or where
your argument is less than convincing. Thankfully, you can formulate your Arguments
ahead of the Issues in the exam, because you will be given a scratch pad where you can
make a rough draft.

It goes without saying that in the final form the Issues precede the Arguments.
When you transfer your draft to the final answer sheet be sure that you lead off with the
Statement of Facts, followed by the Issues, and then the Arguments, in that order.

If your first argument is THE DEFENDANT WAS GUILTY OF GROSS
NEGLIGENCE, it should be easy to rephrase it as your Issue No. 1: WHETHER OR NOT
THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE. Keep it simple.

There are two (2) ways of stating your Issues. The first is what I call the
whether-whether form. Example: WHETHER OR NOT THE DEFENDANT WAS
GUILTY OF GROSS NEGLIGENCE.


Or, you can also couch the issue in the form of a query: WAS THE DEFENDANT
GUILTY OF GROSS NEGLIGENCE? What is important is if you choose one form you stick
with it up to the end.

Personally, I prefer the whether-whether form. If you ask a question, the
reader might instinctively form a premature answer before he has read your
arguments, and the answer might not be to your liking.

In actual practice, we do not just pull the issues out of thin air. Every case has to
pass through the mandatory pre-trial, and in the pre-trial the issues are formulated.
They are then included in the pre-trial order and they serve as guideposts for the trial.

In the sample case, however, there is no mention of a pre-trial or a pre-trial
order. So it is up to you to formulate your issues issues for which you have ready
arguments.

A R G U M E N T S

The arguments are basically a restatement of the issues from the point of view of
the advocate. So, if the first issue is WHETHER OR NOT THE DEFENDANT WAS GUILTY
OF GROSS NEGLIGENCE, the first argument on the part of the plaintiff would
predictably be: THE DEFENDANT WAS GUILTY OF GROSS NEGLIGENCE.

On the other hand, the defendant is expected to espouse the negative of the issue
by arguing: THE DEFENDANT WAS NOT GUILTY OF NEGLIGENCE; ON THE
CONTRARY, HE EXERCISED ALL DUE DILIGENCE.

In the Instructions, the examiner is supposed to provide you with a wealth of
relevant laws and jurisprudence to help you in discussing your arguments. If that
happens in the actual exam feel free to help yourself to the applicable provisions and
decisions generously shared. It would be ideal if in the discussion of each argument you
can cite (a) the relevant facts previously stated in the Statement of Facts, (b) the
applicable statute or provision of law and a (c) decision or two of the Supreme Court.

You can go beyond the cited provisions and decisions, and you will hopefully be
credited for your creativity.

Ten Commandments:
1. Break up your discussion into bite-size paragraphs. Long paragraphs look like
long monologues and have the same effect. Drowsiness. Multiple paragraphs denote
multiplicity of ideas.

2. Stay meek and humble. In addressing the court, do not just say This court . . .
. Always say This Honorable Court . . . with a capital C.



3. In referring to the case at hand, simply say In the case at bar . . . Do not say
In the case at bench . . . as if you are a magistrate.

4. Be respectful. Present your conclusions with With all due respect . . . or It is
respectfully submitted that . . . or It is most respectfully submitted that . . .

5. Likewise, in pulverizing the opposition you will lose nothing by doing it
gently. We beg to differ . . . . We beg to disagree . . . . Harsh language will get you
nowhere.

6. In your discussion keep caps to a minimum. Caps in a pleading have much the
same effect on the reader as caps in a text message. You dont want to sound as if youre
yelling at the other party.

7. Exclamation points denote excitement. Its unprofessional to telegraph your
excitement by using exclamation points, especially double or triple exclamation points.

8. Avoid swardspeak. Do not use words like bongacious or unkabogable. You
are in the bar exam room, not in some beauty parlor.

9. With respect to questions of jurisdiction over the subject matter, do not cite
the Rules of Court. Remember that jurisdiction is substantive, not merely procedural.

10. Do not refer to the Civil Code as the New Civil Code. First, its not new at
all. It is a senior citizen. More importantly, it is not legal. Article 1 of the Civil Code
expressly provides how the code should be cited, and definitely it is not as New Civil
Code.

P R A Y E R

Lawyers are a pious lot. In everything they do they always end up with a prayer.
Whether it be a pleading or a motion or a memorandum that they are drafting or
dictating they never forget to wrap it up with a supplication.

This is where you restate the relief or reliefs you previously prayed for in your
Complaint or Answer. It is good form to break up your prayer into numbered
paragraphs. You may add a general or catchall prayer for possible reliefs that you might
have failed to mention. Other reliefs just and equitable are also prayed for.

If you can no longer recall the prayer in your Complaint or Answer, you can
simply say It is most respectfully prayed that judgment issue as prayed for in the
Complaint (or Answer).

Wherefore means Premises considered. Use one, not both.



SAMPLE

(Caption omitted)

M E M O R A N D U M
FOR THE PLAINTIFF

PLAINTIFF, by counsel, to this Honorable Court, most respectfully submits this
Memorandum.

I. STATEMENT OF FACTS

Plaintiff is a lowly Ilocano peasant. As lowly as he is, he is an independent
farmer. He owns the land from which he ekes out a living. He is the sole and absolute
owner of a parcel of agricultural land situated in Barangay Baraca, Municipality of
Calasiao, Pangasinan. The land has an area of 6,377 square meters, more or less, and is
covered by Tax Declaration No. ARP No. 014-00243 of the Office of the Municipal
Assessor of Calasiao, in the name of his late father, Juan Tutri.

On January 21, 2011, without any warning, the Defendant, together with armed
cohorts, by the use of force and intimidation, barged into the said parcel of land, cut and
destroyed a wide swath of the sugar cane crop, and forcibly and feloniously excluded
the Plaintiff therefrom.

II. I S S U E S

I.
WHETHER OR NOT THE PLAINTIFF HAS PROVED
HIS CAUSE OF ACTION BY A PREPONDERANCE
OF EVIDENCE AS REQUIRED BY LAW.

II.
WHETHER OR NOT THE ISSUE OF OWNERSHIP
RAISED BY THE DEFENDANT IS A VALID
DEFENSE IN AN ACTION OF FORCIBLE ENTRY.

III.
WHETHER OR NOT THE FAILURE OF THE
DEFENDANT TO VERIFY HIS ANSWER IS FATAL.



III. A R G U M E N T S

I. THE PLAINTIFF HAS PROVED HIS CAUSE
OF ACTION BY A PREPONDERANCE OF
EVIDENCE AS REQUIRED BY LAW.

The first paragraph of Article 539 of the Civil Code provides:

Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by laws and Rules of Court.

The plaintiff testified to prove his averments in his Complaint for Forcible Entry.
He identified Exhibit A, which is the Tax Declaration in the name of his late father,
Juan Tutri. (Tsn, March 5, 2011, p. 2, last 2 Q & As) To prove his actual, physical
possession he also presented copies of realty tax receipts for the years 2006 up to
2010, as Exhs. B, B-1, B-2, B-3 and B-4. (Ibid., p. 5, 1
st
Q & A)

The plaintiff further testified that he and his family were forcibly dispossessed
of the subject property by the defendant and his armed cohorts on January 21, 2011.
Wielding boloes, the defendant and his cohorts cut and destroyed a wide swath of the
sugar cane crop then standing on the land. Using a mini-backhoe they also began
dumping soil and/or filling materials on the southern section of the subject parcel of
land.

x x x x x x x x x

II. THE ISSUE OF OWNERSHIP RAISED
BY THE DEFENDANT IS NOT A VALID
DEFENSE IN AN ACTION FOR FORCIBLE
ENTRY.

x x x x x x x x x

P R A Y E R

WHEREFORE, it is most respectfully prayed that Judgment forthwith issue:



1. Ordering the Defendant to vacate the parcel of land described
in paragraph 3 of the Complaint;

2. Ordering the Defendant to pay the Plaintiff the value of the
sugar crop that he destroyed in the amount of P20,000.00.

3. Ordering the Defendant to pay the Plaintiff the actual damage
to the land caused by the dumping of soil and/or filling materials thereon
by the Defendant in an amount not less than P20,000.00.

4. Ordering the Defendant to pay the Plaintiff the reasonable
value of the use and occupation of the subject parcel of land at the rate of
P30,000.00 per month, starting from January 21, 2011, until the
Defendant has completely vacated the property.

5. Ordering the Defendant to pay/reimburse the Plaintiff
attorneys fees in the amount of P50,000.00, as well as costs of suit.

Other reliefs just and equitable are also prayed for.

Quezon City for Calasiao, Pangasinan, November 5, 2011.

AQUINO & ASSOCIATES
(Counsel for Plaintiff)
124 Cordillera St., Sta. Mesa Heights
Quezon City

By:

HONORATO Y. AQUINO
PTR No.
IBP No.
Both issued at Baguio City on 1/7/11
Roll No. 18537
Tel. & Fax No.



E X P L A N A T I O N
(Pursuant to Section 11,
Rule 13, 1997 Rules of Civil Procedure)

Due to constraints of time, distance, and manpower, which make it impracticable
for the undersigned to served copy hereof on counsel for the defendant by personal
service, said copy is being served by registered mail in accordance with law.

HONORATO Y. AQUINO

SERVED COPY by Reg. Mail w/rc:

Atty. Joselino A. Viray
(Counsel for Defendant)
BINCE, VIRAY & ASSOCIATES
3/F St. Francis Bldg., McArthur Highway
Urdaneta City.



LANGUAGE

In the essay-type component of the bar exam, your English is supposed to
account for 20% of your grade. That sounds reasonable. What I am afraid of though is
that your grammatical lapses might be too atrocious that the examiner will conclude
that you do not deserve to become a lawyer. In my book, an examiner who flunks an
examinee who says the court have or the courts has cannot be blamed.

One idea is what I call DECLARATIVE IS SUPERLATIVE. Declarative sentences
are punchy. They dont put you to sleep, like the SCRA. They wake you up. They might
make you sound elementary, but then they also make you sound sure of yourself and
certain of what you are saying. They make you sound as if you mean business. Every
holdupper worth his salt knows this. He delivers his message with the force of a pistol
shot. Hold-up ito!

The message of Pres. Reagan to Marcos at the height of Edsa 1, delivered by Sen.
Paul Laxalt of Nevada, is a prime example: Cut, and cut cleanly. And the response of
Marcos was as brief and to the point. I am disappointed.

Remember the three words that kept the underground movement alive during
the dark years of World War II when it seemed we were abandoned by Mother America
and the rest of the world? I shall return.

We also have a good example in ancient history. Veni. Vedi. Vici. I came. I saw. I
conquered. (But Dominique Strauss-Khan has his own version. Vedi. Vici. Veni. I saw. I
conquered. I came.)

And of course, everybody is familiar with Kayo and boss ko!

At this point it is too late to dwell on correct grammar. That is the job of the
CHED and the DEP-ED. But it might help if you can avoid some common errors.



COMMON ERRORS

accordingly

Accordingly is different from according to and should not be used
interchangeably with the latter. It means in accordance with, or appropriately.

I talked to the Barangay Chairman and accordingly the complainant filed his
complaint yesterday is wrong. It should be: According to the Barangay Chairman the
complainant filed his complaint yesterday or The complainant filed his complaint
yesterday according to the Barangay Chairman.

When someone does something good with reference to some rule or norm, or
conducts himself properly, accordingly is the correct form. Thus, After the accused
was informed about the authority of the barangay officials, he behaved accordingly.

as the judge said; like the judge said

While both forms mean exactly the same thing, its a question of context: the first
form sounds stiff in conversation, and the second form sounds too informal in a formal
legal memorandum.

at the end of the day

There is nothing grammatically wrong with this cliche but it is a clich and has
been so overworked by P-Noy and his coterie of advisers that all life has been squeezed
out of it. Same fate as worst-case scenario and move on. And for the longest
time. And from the get-go.

at this point in time

At this point; at this time. These are better forms, although admittedly even
native speakers sometimes find themselves using the longer form. But whether correct
or not, it is certainly overworked to the point of nausea.

based from

A base is something you build on, not something you move away from, or shun.
So it should be based on not based from.

dedma

Actually, this is a combination of two words. Ded is short for dead or patay, and
ma is short for malisya. In the vernacular, patay-malisya refers to the behavior of
someone who acts as if something has not happened or someone does not exist. Dedma
is not English. So you cannot say that The court should dedma the motion to dismiss.
That would be a sign of illiteracy.


every day; everyday

Every day means just that, every day, day in and day out. Everyday, however,
is an adjective that means ordinary, nothing special. Thus, Everyday attire is not
allowed in the courtroom.

full-fledged; full-pledged

The correct form is the first, as in full-fledged lawyer. The second form may be
correct if what is meant is someone in hock up to his eyebrows.

holistic

Yes, there is such a word, and yes, it does mean wholistic, meaning as a whole,
but this is one of those buzzwords that have lost their meaning from sheer overuse. The
speaker may think he sounds like a technocrat, but actually he comes across as just
plain lazy. It may work the first time, and maybe a second time, but beyond that I feel
like reaching for my sumpak.

its, wont, dont, isnt, shouldnt, youre not, weve been, etc.

Avoid contractions. The test is billed essay-type to distinguish it from the MCQ
component. But it is not essay-writing. It is legal memorandum/opinion writing, a very
formal genre. So dont get lovey-dovey with the examiner. You might not be his type.

kind of

I am kind of tired hearing I am kind of tired. I am kind of . . . he is kind of . . .
she is kind of . . . it is kind of . . . may sound like a cute filler noise in spoken English, like
like and you know, but is totally out of place in an examination.

may be; maybe

The petition for writ of amparo may be filed with a Justice of the
Sandiganbayan. Maybe he has jurisdiction to entertain the petition. If one has difficulty
distinguishing between the two forms, maybe it would be best to completely avoid the
second form, especially in an examination. It means perhaps. The writer is not sure
hardly the kind of impression that an examinee wants to make on the examiner.

request for

If request is used as a noun, as when you make or submit a request for a
refund, then it is all right to add for. But if it is used as a verb, the for becomes
superfluous. Just say, he requests a refund.

resulting to



Common error of radio and TV field reporters. Should be reckless imprudence
resulting in (not to) serious physical injuries.

SC, LTFRB, COMELEC, BUCOR, etc.

As much as possible, avoid initialisms like SC, LTFRB, IBP, etc., as well as
acronyms like COMELEC, BUCOR, PAGCOR, etc. Your fondness for alphabet soup might
be construed as plain laziness.

self-accident

This is one of those inventions of Filipino radio and TV newscasters. It is
supposed to mean an accident where only the victim is involved. No such word in
English. At least not yet.

sufficient enough

If something is sufficient, it is enough. Sufficient enough is sobra na. Nakakasuka
na!

tactical interrogation

There is nothing wrong with the grammar. But it is a whole lot worse than
fractured grammar. Whenever police top brass say that their witnesses are not
available for interview because they are still undergoing tactical interrogation, I feel
like shooting them the police, not their witnesses. This is nothing less than gross
ignorance that is a ground not only for dismissal but for criminal prosecution.

There is no such thing as tactical interrogation in police investigations. Tactical
interrogation is a military procedure when an enemy is captured in the course of
hostilities. But even a captive combatant in a military operation is entitled to some
respect as a POW. He cannot be forced to divulge information other than his name and
rank. In a police investigation, it is now mandatory to Mirandize the suspect. Instead
of interrogating him, the police inform him that it is his right to remain silent. That is
the exact opposite of tactical interrogation.

trashslide

We should be proud of this word or not. It comes from the familiar landslide.
We should be proud that the summer capital, or its officials anyway, made it current. It
means a mountain of trash rampaging downhill and burying everything and everyone in
its path.

Wherefore, premises considered

That is what is called a tautology, a needless repetition. Wherefore and
premises considered mean the same thing.


THE BARRISTERS CLUB OFFICERS:
Virgel Amor Vallejos
(Chancellor)
Seychelles June M. Doringo
(Secretary)
Janilet Mishelle R. Carillo
(Treasurer)
Art Miguel B. Sanlao and Angelito Velasquez Jr.
(Business Managers)
Rachelle May Gallego
(PRO)
Paul Dean Mark Pila
(SSG Representative)
Brenda Filipinas Danganan
(Ex-officio)
Atty. Isagani Calderon
(Adviser)
Atty. Reynaldo U. Agranzamendez
(Dean,College of Law)

Memorandum Writing (Dean Aquino)

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UNIVERSITY OF THE CORDILLERAS BAR OPERATIONS 2011

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