My holiday is spent studying

I've been spending my holiday break doing advance study for my current review subjects, including Civil Law and Commercial Law which I'm having a tough time this semester. I feel like having a weak foundation in these two subjects. Aside from I find them boring, it doesn't help that the teachers for these subjects emphasize on rote memorization on even the most inapplicable, impractical provisions of the law, rather than case-based problems which I am used to and to me where my strength lies. But I'd rather take this as a challenge, for after all the Bar exam also entails a lot of memorizing pertinent provisions of the law. Mock bar exams are approaching, it will be this February and I'm afraid I might not be adequately prepared for both Civil and Commercial Law largely because I have to readjust my study focus to my teachers' style which is not exactly consistent with Bar exam style.

Aside from Civil Law and Commercial Law reviews, I'm currently taking up Labor Law and Remedial Law reviews as the remaining units I have to earn before graduating hopefully this March. My focus right now is to graduate this March. Preparing for the Bar exam is another thing. I'd like to thank my Labor Law professor though for adequately preparing us for the Bar exam. His outline and teaching style is really very helpful for the Bar exam and for actual practice.

One good news this month of December is that I recently signed up in a sideline project in which the compensation would cover my expenses for the Bar exam. I'm a working law senior student and I need sideline projects to help me save for the Bar exam preparation. It would not be enough to just rely on my regular salary. God really provides!

Maybe I should write some time about the life of a working law student. I envy those full-time law students who have all the day to allot to studying. But then really, examining myself, I know I would be bored just doing the same studying all day. A full-time job, which I enjoy by the way, is still my preference. Now that I'm in my senior year however, I hope the job load will not be as full as it were. I know, God will make a way, especially for things beyond my control.

True or False Technique

While studying for a Civil Law Review exam, I found out that it's easier to grasp and retain principles if I also note it down as a True or False problem aside from simply copying them verbatim in my notes. This was particularly effective when I reviewed a day or two before an exam. Because the legal principle or provision I read was either correct or erroneous, it pushed me to examine its validity and justify my choice.

Tags: Bar Tips

Less is More

I met up with a close lawyer-friend recently in Manila and our talk naturally touched on my preparations for the bar exam next year. Lawyer-buddy, who was .01 shy of making it in the Top 10 list of the bar exam results in 2004, shared this advice to me: Less is more. When reviewing for the bar exam, choose only one good review book per subject to read at least three times. The reason is both psychological and practical. You don't want to feel inadequate during the bar exam day because you have barely covered or mastered all the books you had slated for reading. Simply master one good review book. Besides, time is of the essence.

Lawyer-buddy currently works at the legal department of a major bank headquartered in Makati City.

Tags: Bar Tips

Top Ten Tips for Taking the Bar Exam

Here's another link with some good tips about taking the bar exam. This is a US situation, but can also be applied in preparing for the Philippine bar exam.

http://www.uslegalguru.info/2007/11/09/top-ten-tips-for-taking-the-bar-exam/

Tags: Bar Tips

Two Tips for Getting Best Results from Bar Exam Study Time

Check this US site on the said topic:

http://bigcitiesbigboxes.typepad.com/barwrite_blog/2007/12/two-tips-for-ge.html

Tags: Bar Tips

Three objectives of Civil Actions

Following are my notes in tonight's first lecture in Remedial Law. You may read more the pertinent provisions of the Rules of Court for a thorough understanding of the subject matter.

There are three different objectives of a civil action; TO BIND:

1. a person or IN PERSONAM
2. a thing or IN REM - to bind the "res"; also refers to a status or relationship; to bind the whole world
3. QUASI-IN REM - a particular defendant is named but the purpose is to burden his property; e.g. judicial foreclosure of property

Note: Do not confuse real/personal actions with in rem/in personam actions.

Q: Why is it important to determine if an action is in rem, in personam or quasi-in rem?
A: To determine how the court can acquire jurisdiction over the defendant. In in personam actions, never through publication can the court acquire jurisdiction over the person of the defendant; only through personal service or substituted service of summons.

E.g. X damages car of Y through negligence of latter. Y sues X but latter flies abroad. How can the court acquire jurisdiction over X? Under the circumstances, the court can't acquire jurisdiction over Y because the nature of the action (objective) is in personam. But the remedy is not to dismiss the case (Citizens Surety vs. Herrera, 38 SCRA 369) but to archive the case.

So what is Y's remedy? Y can go after X's properties. How? By attaching such properties. The action becomes quasi-in rem, thus what is important now is jurisdiction over the "res" or the thing. Service of summons by publication while X is abroad may then be allowed, not to acquire jurisdiction over the "res" but to comply with the requirements of due process.

Again, it is very important to determine if the nature of the action is in personam, in rem or quasi-in rem.

Tags: Remedial Law

It's great to receive email messages from readers

It's been quite a while since I have last updated this blog. I've been busy with work and law school (the mock bar exams and final exams). I took up some extra work in the last two months aside from my main job to earn extra money for my bar exam preparation next year. For this posting, I'd like to share excerpts of my email reply to blog reader Edz. I encourage you dear readers to email me your comments or request for help at barops@gmail.com. It inspires me to continue with this blog and focus on my law studies. Here's my email reply to Edz's email:

"Hi Edz,

Thank you for your email. It's really inspiring to receive such email messages from readers of my blog. Sorry for this late reply as I have been busy with work lately and the final exams at law school.

It's great you have both the inspiration and motivation to take the bar next year. I hope to graduate this March 2008 so we might be taking it together. I too am motivated and determined to become a lawyer. But lately, less than a year into the 2008 bar exam, I have devoted much time honestly assessing my strengths and weaknesses. It's especially hard to acknowledge one's weaknesses because it takes an in-depth look at not just your intellectual resources but also your character. I have to know the real reasons why I am surviving law school, on why I ace some exams and flunk or get low scores in others. Once we have done this, then we can truly prepare for the bar exam.

I am writing this in an internet cafe so I don't have my list of recommended books and materials. I'll send you another email soon once I have the list. I will also be updating my blog soon as I now have time to do so with the semestral break..."

Salient Points in Law of Public Officers

Characteristics of Public Officers
1. Public trust
2. Not a hereditable possession
3. Outside the commerce of man; hence it may not be the subject of a valid contract
4. Not a property; hence not protected by the due process clause

Power of appointment is essentially executive, subject to well-known exceptions.

Power to create public office is legislative; as well as power to prescribe qualifications to public office.

Calderon vs. Carale – The list of presidential appointees who require confirmation by the Commission on Appointment is exclusive. Hence, Congress by a mere legislative act may not validly amend the constitution by adding or deducting to or from that list.

Distinction between Ad Interim appointment and Regular appointment – The real distinction lies in the effectivity. Ad interim appointment takes effect immediately; appointee may immediately assume office. Regular appointment does not take effect immediately; will only take effect after confirmation by the Commission on Appointment.

See Pimentel vs. Ermita on appoinment in an acting capacity made by the President of some cabinet members; distinction between appointment in an acting capacity and ad interim appointment.

On midnight appointments, the prohibition (see Sec. 15 Art 7, Constitution) only applies to presidential appointments. (Derama vs. CA) There is no law that prohibits local elective officials from making appointments immediately before his term of office ends.

Local government units may validly exercise the power of eminent domain through an ordinance; a mere resolution will not do.

Tags: Political Law

Bar exam 2007 is approaching

The September 2007 bar exam is approaching--four Sundays of gruelling tests on various areas of the law. I hope the examinees can muster enough strength for this battle royale while at the same time maintain composure and calm. I will be at La Salle during the fourth bar Sunday observing the activity.

For the bar takers, if you need some notes and bar review materials, or have queries, please do post them in this blog through the comments section or better yet email me at barops@gmail.com. I will try my best to answer them or post them here on my blog. I have numerous electronic copies of review materials from the top law schools but due to copyright limitations, I cannot post them here. Perhaps if you post some specific queries or topics that you want to read here, then I can post what I have learned from these reviewers in my own words--in plain, easily digestible language.

Bar takers, BEST OF LUCK!

Study approaches

I take my study of law in three main approaches. This may perhaps also help me when I start fully preparing for the bar exam next year. Here it is:

1. Procedural

Study the exam itself. Ask yourself:

a. How is the exam administered?
b. How are the questions asked?
c. What are the ideal answers? What is the examiner looking for in an answer?
d. What were the usual legal areas or topics asked in the past exams?
Reign on your study habits and methods.
a. How do I improve my memory skills? Cognitive skills? Note-taking style?
b. What is the ideal study environment for me? (venue, music,scent)
c. What is the appropriate study schedule for me? (fulltime or working) How do I pace myself? (not being complacent but not putting to much pressure on myself)
d. How do I physically condition myself? (food, vitamins, exercise)

Practice good writing, analytical and problem-solving skills. The vehicle of your message is as important as the message itself; meaning, your communication skills matter. Knowing how to express your answer in a manner easily understood by the examiner is as important as knowing the answer.

2. Substantive

Study for the exam. What use is your knowledge of the battle terrain and tactics if you are not properly equipped and worse do not know how to use your weapons. Following are the factors which to me are important:

a. Discipline - As one law student would put it: "Studying law is like training to swim for hours in the sea without a life vest. You must feel at home with the law like you must feel at home with the sea." And it requires a great deal of discipline to do this.
b. Habit and culture - Watch out for habits that may distract you from your studies. Flirting with your pretty hot chick-seatmate could make you lose focus. Be loyal to your girl.
c. Selection and availability of study materials - Good books and other references matter a lot. Make sure you have the essentials. If you cannot afford them, borrow. The bottomline is, you must have them.
d. Time - Make sure you have the time to study. What good is a schedule if it's not realistic or if you can't stick to it. As they say, time is of the essence. Read, read, read! That's the only way to learn.

3. Finance management

The last thing you need is a money problem. If you have a financer, better. If you can finance yourself, great. If none of the above applies to you, find a way to get those bucks short of stealing. You may borrow and use as your collateral your law education. Tell your creditor, "When I become a lawyer, pro bono ka na!"

Tags: Bar Tips

Context of the law

Bar tip:

"Know the context (of the law) because if you know the context you can always explain it in your own terms."

--Sandoval--

Tags: Bar Tips

Mens Rea Doctrine in Criminal Law

A most common source of confusion among students in the study of criminal law arises in distinguishing one related crime from the other. A student of criminal law for example may find it hard to determine with the facts given of a person firing a gun in public if the crime is "alarms and scandals" or "illegal discharge of firearm." Here you have one same act which could be under either crime. The key here is understanding the doctrine of Mens Rea.

According to Ortega, the technical term mens rea is sometimes referred to in common parlance as the gravamen of the offense. He says: "In criminal law, we sometimes have to consider the crime on the basis of intent. For example, attempted or frustrated homicide is distinguished from physical injuries only by the intent to kill. Attempted rape is distinguished from acts of lasciviousness by the intent to have sexual intercourse. In robbery, the mens rea is the taking of the property of another coupled with the employment of intimidation or violence upon persons or things; remove the employment of force or intimidation and it is not robbery anymore."

Going back to our example therefore, the crime is alarms and scandals if the firearm when discharged was not directed to any particular person; illegal discharge of firearm if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent.
Another situation when mens rea applies is most common in the Philippines, the karaoke singing late at night. When do those pesky singing neighbors of yours get to be held liable for alarms and scandals under the paragraph "disturbing the public peace while engaged in any other nocturnal amusements?" Again we look at gravamen of the act. If the loud singing was actually meant to particularly disturb or spite you, the crime is unjust vexation.

May protesters in a rally be held liable for alarms and scandals? Again, mens rea. Even if the activity caused incovenience or disturbance to the public, if it was done in good faith as an exercise of freedom of speech and to air grievances against government policy, then there is no crime. But if clearly the intention of the protest was principally to instigate or initiate a disorderly meeting or gathering offensive to another or prejudicial to public peace, then a crime is committed.

Tags: Criminal Law

Computation of seats allocated for Partylist System

(Veterans Federation Party vs. Comelec)

First parameter in determining the winners: 20% allocation.

Under the law, partylist representation composes 20% of the total number of representatives including the partylist reps. 20% is only a ceiling and not mandatory. It does not have to be filled up, according to the Supreme Court.

The formula therefore is:

(No. of district reps/.80) X .20 = Maximum number of Partylist reps

For example, with 240 district reps (80% of House)
(240/.80) X .20 = 60

Another example, with 243 district reps (80% of House)
(243/.80) X .20 = 60.75; only 60.

Disregard the fraction, do not round it off, according to the Supreme Court. Fractional representation is not allowed.

Second parameter in determining winners: 2% threshold

Third parameter: 3-seat limit

Fourth parameter: Proportional representation

Tags: Political Law

Burning out?!

You have set yourself up for long days of study. If you’re a full-time bar reviewee, you have at leat six months of preparation time ahead of you. You’re prepped up, excited and willing to burn more calories for intense brain activity. 9-12 hours of studying each day. More studying. Then another bar review lecture. More practice tests. Imagine doing this for six months! It would not be normal if you don’t burn out.

One of the biggest challenges of bar exam preparation is how to maintain the motivation? If motivation was difficult in law school, it could be more difficult in the bar review phase. After the first reading you may already be tempted to take the test now, as in now, not later. You’ve already had too much of the studying part. Take heed. Be patient. Perhaps your impatience is a sign that your body and mind need a break. If there is one thing that you should not forget in life, it is to relax. So give yourself a break. Do not feel the slightest guilt that time spent relaxing may be time wasted that should have been spent learning more laws. The last thing you can afford to lose is your sanity.

To help you relax, here are some suggestions of those who were once bar reviewees:

Exercise. It does not only perk up the body, it perks up the mind.
Pace yourself. Take breaks. Be sure to have a good night’s sleep.
Get comfortable with "practice test days."

According to one successful bar candidate, one way of coping with the actual exam is to walk in with a "been there, done that" --attitude. When taking the bar, tell yourself, "This is just another practice exam."

Tags: Bar tips

Bar Study and Exam Tips

Following are tips I culled from the Internet which apply to our preparation for the Philipinne bar:

1. Repetition is key

The more you read the bar review outlines, the better the material becomes ingrained in your memory. Visual abilities are intensified and recall becomes photographic. Upon every reading new matter is gleaned and understanding is heightened.

The greater number of practice tests you take the more prepared you will be for the bar. There is no substitute for taking practice exams under test-like circumstances. This means committing yourself to four hours of uninterrupted time during which you practice essays and performance exams under pseudo-exam-stress-producing conditions. Thereafter, you should critically and introspectively assess your performance.

2. Read the call of the hypothetical

Before reading an exam hypothetical, begin by reading the call of the question and any instructions. Points are easily lost due to a failure to follow instructions. Do not go off on a tangent and waste time answering questions not asked. The purpose of reading the call of the question is to direct your focus when you read the facts of the hypothetical. This fosters active reading. If you read the hypothetical first you will waste time reading when you have no idea which facts are determinative for the issues and which are red-herrings. After reading the call of the question, actively read and re-read the question. Before you begin to write always re-read the call of the question to make sure that you are responding to the correct issue.

3. Create an outline for your answer

Outlining your answer before you begin to write compels you to organize. An outline may be as skeletal as the issues (broken down into elements), law and facts you will discuss. To comprise your outline, use IRAC. Think longer and spend less time writing. The process of reading and re-reading the question, as well as outlining, should take about one-third to one-half of the allotted time. Once a good outline is prepared you will not need to spend so much time writing. Your focus will be clear. It is also important to review your outline while you are writing and after you finish writing. The purpose of an outline is defeated if you do not use it. Under the stress of writing the answer you may forget to make important points that were originally in your outline. Lastly, if you are unable to finish your answer, the outline may serve as an answer for grading purposes.

4. Write a visually appealing answer

Write legibly. Organize you answer in logical sequence. Cover an issue thoroughly and then move on to the next issue.

5. Use the facts

This point cannot be stressed enough. Most exam answers that fail are a result of the lack of the use of given facts. However, do not assume facts not given. Most facts provided are not red-herrings. They are in the hypothetical for a reason and you need to ascertain why they are there. Then you need to use the facts to buttress your analysis of the issues. Do not be conclusory.

6. Consider all sides

Every point has a flip side. When a writer draws a conclusion without considering counter-analysis, he demonstrates to the grader his lack of a complete thought process. In raising counter-points, support them factually and then refute them factually.

7. Maintain perspective

Each of you has the ability to succeed on the bar exam. Do not get caught up in how or what your peers are studying. That will only serve to distract you and bridle positive performance. You know what you need to do to succeed. Do it and enjoy learning.

8. Be disciplined

Preparing for the bar demands discipline in your studies. The bar exam must be the primary focus of your attention for at least two months. Avoid distractions. Do not procrastinate. While breaks are important to maintain mental attention and clarity, they should be limited in duration. Do not try to cram the night before the bar exam. Rather, it is best to take time off, away from studying, and relax since you will need stamina during the exam. It is alright to briefly review some notes or flash cards at breakfast the morning of the exam. It is possible that what you review will be tested on the exam that morning and this will boost your confidence.

9. Do not panic

Part of exam preparation involves mental control. The more prepared you feel through study and practice, the less likely it is that you will panic. However, it is possible that something on the exam will cause you to panic. For example, you may see an issue that you think you are unprepared to address. In truth you are probably prepared to address the issue, but may only be prepared to a certain extent. Resist panic because it will inhibit your ability to recall what you know about that issue. Panic stifles. You cannot afford to allow panic to overcome you and result in failure to answer a question.

Tags: Bar Tips

Studying Election Laws

I recently attended a three-day lecture of a prominent reviewer in Political Law. In the following days, I will share some of the most important points he raised in the lecture. Since I am quite busy right now with work, I am posting herein a teaser for the meantime. Since we just had our senatorial and local elections, I will take up election law first. What a two-unit subject could achieve in one semester in law school, the lecturer effectively covered in just four hours.

You may approach your study of election laws, he said, by dividing it into three areas:

1. Pre-election (e.g. registration, campaign, qualifications, filing of COCs)
2. Election (e.g. voting, election bans)
3. Post Election (e.g. canvassing, protests, proclamation)

Tags: Political Law

CAUSE OF ACTION vs. RIGHT OF ACTION

This was once asked in the bar pertaining to Civil Procedure: Distinguish a cause of action from a right of action.

First the definition of both: A right of action is the right of the plaintiff to bring an action and to prosecute that action to final judgment. (Marquez vs. Varela, 92 Phil. 373) A cause of action is an act or omission by which a party violates a right of another.

Now the distinction: (If you are asked the same question in the exam or in the slim chance it will be asked in the bar again, skip the definition and go directly to the points of distinction.)

1) Cause of action is the delict or wrong committed by the defendant, whereas Right of action refers to the right of the plaintiff to institute the action;

2) Cause of action is created by substantive law, whereas Right of action is regulated by procedural law;

3) Right of action may be taken away by the running of statute of limitations, by estoppel or other circumstances which do not affect at all the cause of action.

For more info check DE GUZMAN, JR. vs. COURT OF APPEALS (192 SCRA 507)

Tags: Remedial Law

Basic Maxims: Pro Reo Doctrine

Whenever a penal law is to be construed or applied and the law admits of two interpretations – one lenient to the offender and one strict to the offender – that interpretation which is lenient or favorable to the offender will be adopted.

This is in consonance with the fundamental rule that all doubts shall be construed in favor of the accused and consistent with presumption of innocence of the accused. This is peculiar only to criminal law.

Tags: Criminal Law