Thursday, March 05, 2009

Portrait of the Street Strategist as Bar Examiner Part 6

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Portrait of the Street Strategist as Bar Examiner - 6 -

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his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.

In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations. In Part 3, we discussed the species of bar examiners, their positives and negatives. In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions. In Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years.

In this part, we shall discuss the benefits of converting an enumeration question into a problem-type question.

Photographs and memories

Some people do have photographic memories. And these are candidates who are probable topnotchers. Yet, are these topnotchers good analytical thinkers? The answer ought to be a thundering “Yes.”

Isn’t answering the bar questions a conclusive judgment on their analytical process? Having topped the bar, we ought to be assured that these topnotchers have the ability to think on their feet.

Is the manner by which the bar questions are being constructed a “safe harbor?” By safe harbor, I mean that having passed the bar, one may conclude that the candidate is qualified as a lawyer with adequate analytical skills to analyze legal situations and not merely a parrot with good memory masquerading as a lawyer.

Unless, of course, the bar questions do not measure such capacity for analytical thinking. Unless, of course, the bar is a test of memory rather than a test of analysis.

Exemplification

To drive home my point regarding the difference between analytical thinking and photographic memory, allow me to illustrate.

Question: What are the actions for recovering property?

The answer is simple. Of course, you know how many actions there are, and you should have memorized these from the Civil Code, the Rules of Court, and Supreme Court jurisprudence.

This is an example of objective or enumeration questions. What is the goal of this type of questions? I really don’t know, and if the examiners are going to reveal it to me, I don’t think I would be convinced.

Yet, these are the types of questions that separate the topnotchers with brilliant memory from the rest of the candidates.

If the candidate has obtained a leakage, then the enumeration doesn’t bother him, because he has perfect information. All he does is to memorize the enumeration.

But if you have a great memory, then you can rattle off this list of actions with their descriptions. In addition, you can enumerate a million other provisions of the law. After all, that’s the type of exams they give in the bar exams, and these memory questions are the ones that greatly determine whether you will be a topnotcher or not.

Conversion challenge

The previous question is one that calls for photographic memory. So now we arrive at a challenge.

Portraying the Street Strategist as bar examiner, how should the question be reconstructed so as to avoid merely testing the candidate’s photographic memory but additionally test his analytical thinking process in integrating all the concepts related to the subject matter in question?

Original question: What are the actions for recovering property?

Reconstructed question: Fiona, wife of Clive, died in a hospital. Due to unpaid hospital bills, the hospital will not release her cadaver to Clive. Additionally, Fiona’s surviving parents who were against her marriage to Clive since the beginning likewise want to claim her body although they are also unable to pay the hospital bills. Under civil law, which of the actions for recovering property is applicable to recover the cadaver from the hospital? Who between Clive and Fiona’s parents are entitled to her cadaver? Explain your answers and the remedy to be taken.

Which of the two question formats is better? And another huge issue is, are they essentially the same question? Still another issue: Which of the two formats is appropriate to use in the bar, the bar being the only RPM of the candidate?

The original format requires only a probable topnotcher’s photographic memory.

On the other hand, the reconstructed format forces the candidate to think and analyze each of the available actions to recover property, and which specific action applies to the instant case.

Sometimes, you may not instantly remember all the actions or remedies but when given a problem you will remember one particular action that will apply to the case. It happens, right? You cannot enumerate all the instances but when one instance is presented, you instantly recognize it.

The reconstructed form also introduces another issue of who has the locus standi to file the action to recover the body.

Furthermore, the reconstructed problem is a legal situation, a controversy that requires knowledge and understanding, not mere memory work. It tests a lawyer, not a high school graduate who has brilliant memory.

Is the reconstructed question a better performance metric of a bar candidate compared with the original format? Yes.

Did the reconstruction work on the test question require momentous effort? No.

You see, it all depends if the examiner has adopted a philosophy that will guide him in how questions should be constructed.

Deceptive

In the problem above, is the original question, in essence, the same as the reconstructed question? Of course, yes. It’s all there for you to read.

The answer to the original question requires you to enumerate all the instances, while the answer to the reconstructed question requires only one of the instances.

In fact, the latter format is actually easier to answer. Choose one instance and justify it. That’s infinitely simpler than enumerating all the instances, right?

Hmmm, wait a minute. You’ve been with me for five years and by this time you know my style. It’s very predictable. I map out a scenario, a very simple one, then I convince you to agree with me. Once you’ve been convinced, I subsequently reveal the deceptive simplicity of the scenario, and then I conclude that you were wrong in agreeing with me. That ultimate reversal is what I have been calling the Mesmerizing Exit.

Going back to our instant problem, which is easier to answer, the original or the reconstructed format? The only way to judge is to know the solution to the problem.

Let’s attempt to answer the problem.

We are lucky because unlike other enumeration questions which call for 7 to 10 items, the instant problem requires only four. Let’s analyze the four items, and apply the best one that is appropriate for the problem.

There are four actions in civil law that can be instituted to recovery property as enunciated in the very old but leading case of Bishop of Cebu vs. Mangaron (6 Phil. 286).

First action

The first one is accion interdictal to be filed with the inferior courts, the Municipal Trial Courts (MTC). Under this class, there are two actions to recover possession, but not ownership, of real property.

The first one is an action for “forcible entry” (detentacion) in case the deforciant occupied the real property illegally from the beginning such as occupation by force, intimidation, stealth, threat, or strategy (mnemonic: FISTS).

The other interdictal action is called “unlawful detainer” (desahucio) where the possessor had possession which was legal in the beginning but has since expired. For example, a lessee who overstays beyond the lease period is subject to a desahucio action.

Bear in mind that accion interdictal, being a quieting process, is summary in nature, focusing on possession de facto (not possession de jure) and must be brought within one year from the time the cause of action arises.

Is accion interdictal applicable to recover a cadaver from the hospital? No, because this action applies to questions of possession of real property such as land, buildings, or fixed machinery.

Obviously, a cadaver is not a real property. Having excluded accion interdictal, let’s proceed to the others.

Second action

The second type of action involving recovery of property is accion publiciana to be filed with the Regional Trial Court. The focus in this action is possession de jure. Unlike accion interdictal, which is summary in nature and filed with the MTC within one year, accion publiciana is plenary, not summary, and must be filed with RTC within 10 years from the accrual of the cause of action.

Both are accion interdictal and accion publiciana are actions for possession (not ownership) of real property, therefore, not applicable to the cadaver, which is not a real property.

By the way, try to query lawyers and even judges on this. A common misconception about accion publiciana is that it has to be brought after one year (not before) from the accrual of the cause of action. The reason for this misconception is that when the action to possession is brought within one year of the accrual of the cause of action, then one must file either a detentacion or a desahucio action, the two kinds of accion interdictal.

That is wrong. That is a misconception. If the action for possession is based on FISTS, then yes, accion interdictal is the appropriate action.

However, if the action is not based on FISTS, accion publiciana can be instituted immediately, without waiting for one year.

For example, if the pleading does not allege FISTS in the dispossession, then the action is not detentacion and therefore the MTC does not have jurisdiction over the case. The action is recognizable only by the RTC, and therefore is an accion publiciana without waiting for one year to lapse.

Third action

Another type of action to recover property is accion reivindicatoria, (one of most misspelled words, even by law professors and authors) which is a plenary action, filed with the RTC and question is ownership (not possession) and must be brought within 10 or 30 years depending on the circumstances on prescription.

Again, the subject matter is real property, therefore, this action cannot be applied to the cadaver case.

By this time, have you noticed, that we have used our analytical skills instead of mere memory work?

Fourth action

The fourth action is for the writ of replevin. It is an action or even a provisional remedy where the complainant requests for recovery of possession of personal property as provided for under the Rules of Court. It can be filed from the moment of dispossession either with the MTC or the RTC depending on the value.

Now, finally, we have arrived at a proper civil action to recover property that is not real property. The three actions we have previously discussed, accion interdictal, accion publiciana, and accion reivindicatoria are all actions on real property.

Obviously, a cadaver is not real property.

So, there we have it – an action for the writ of replevin to recover the cadaver from the hospital. Simple, clear, and logical legal analytical process.

See the difference between the ordinary examiner and the Street Strategist?

Oops!

Didn’t I say simple things could be deceptive? Did you try to solve the dog and tower problem I proposed in Part 5? Guys, you still have time to send in your solution. I can increase the award to 20 winners. So far, I have received interesting solutions; better late than never.

Sometimes, it’s like that. Problems can appear to be very simple that you can formulate the solution instantly in your head. But as you grow older in intellectual maturity, you’d realize that the problem is so complex that you can’t solve it in your lifetime.

Anyway, back to the cadaver case.

Actually, I proposed the problem to several persons, including three professors or bar tutors, one of which is a retired judge. Each of these three experts has teaching experience ranging from 20 years to 40 years. One is an author of four to five books. One has a photographic memory; he should have been in the Supreme Court where he can use his mastery of the law. The other one took ten years to simplify civil law in easy to read diagrams.

While their reactions are common, some of them gave specific comments, and instead of narrating different conversations, here is a composite of their reactions.

SS: What are the kinds of action for recovery of property under civil law?

Expert: Forcible entry and unlawful detainer within one year on questions of possession of real property, accion publiciana after one year on questions of possession of real property, and accion reivindicatoria for ownership of real property, and writ of replevin for recovery of personal property.

SS: Here’s a situation. A person dies in the hospital with unpaid bills. The hospital refuses to release the body, what specific action should one institute?

Expert: Hmm (Silence for a few seconds; their common silence signifies rapid analysis)

SS: You cannot use habeas corpus because he is already dead. Can we use replevin? (I know replevin would be a doubtful remedy and that is exactly why I proposed the problem to them in the first place.)

Expert: But replevin is for a thing? Is a cadaver a thing?

SS: I don’t know. That’s why I’m asking you.

Expert: It’s not a thing. It’s res nullius (the thing belongs to nobody).

SS: It can’t be res nullius. I want to have that dead body, I own it.

Expert: It’s beyond the commerce of man.

SS: Some people sell cadavers to medical schools.

Expert: Can the hospital do that? Can they withhold?

SS: Oh, yes they do. If you don’t pay, they will not release it. They even refuse you emergency medical attention when you are still dying because you have no money, how much more if you’re already dead.

Expert: Replevin cannot apply because it is applicable only to commercial personalty like appliances, motorbikes, cars, pianos. A cadaver is beyond the commerce of man.

SS: So under what provision of the civil code should I base my action?

Expert: I think you should sue for damages (this is their typical solution, I don’t know why).

SS: Yes, you can sue for damages. In fact, you can sue anybody regarding anything for damages. An action for damages applies to any case. What I’m interested in is this: Under the laws of property, what is the exact cause of action I would have to institute? Is it any of the four? If not, what exactly? If you tell me damages, that does not answer the question on property rights.

Expert: You can ask for the writ of preliminary injunction.

SS: Of course, I can. I can pray for any preliminary mandatory injunction regarding anything, it is a general injunction. But an injunction is an ancillary remedy, it is not an original or principal action. I’m interested in the law on property rights that I can use as my cause of action. If you say, that I can use replevin, I will use replevin.

Expert: But replevin is not appropriate here. Just sue for damages with preliminary mandatory injunction to compel the hospital to deliver the cadaver to you.

SS: If we use damages as our remedy, we can also use the principle of abuse of rights under Article 19 , or specific performance.

Expert: You can use specific performance.

SS: But specific performance is for breach of contract. Here, there is no contract to deliver the cadaver. They probably have the right of retention. I need a cause of action under property law, not under any other matter.

Expert: This is not covered. The best option is damages with preliminary injunction.

SS: Or invoke the principle of abuse of rights under Article 19. Is there any cause of action under property law?

Expert: Why you don’t ask author X? He will be coming next month. He’s an expert.

SS: An expert on cadaver?

Expert (laughing): Not yet, he’s still healthy. But maybe he has some idea. Because I couldn’t think of an appropriate action. (I did ask author X, and some of his answers are part of this composite narrative.)

SS: Then maybe we have to create another action, a new one, under property law to cover this particular case.

Legist’s block

Even legists have their own mental block. Let me summarize our case. What we thought was a very simple case of recovery of property was actually a deceptive case. All the experts and the non-experts I’ve talked to always fell into silence for a few seconds.

Why? As experts they have memorized the four actions to recover property. This is why if this enumeration question is asked in the bar, only the aspiring bar topnotcher who has memorized all the millions of enumeration questions in the book will be able to answer.

But once I converted it to a simple problem, their capability to enumerate using their photographic memory is swallowed by a black hole where even light cannot escape.

The cadaver case is beyond the capability of normal memory work. Therefore, if this problem is given, it will discriminate the memorizers from the analyzers. Your masterful memory does not apply any more. You have to think.

Originally, we thought it was a simple case of replevin. However, even the authors and experts agree that replevin is not the case. And worse, they could not name any action in property law to support a remedy.

A writ of possession could have been a good candidate as a remedy but it applies to land cases.

A suit for damages, for me, is a very weak solution. Yes, it is a remedy alright but it sidesteps the question regarding property rights. It is the last recourse of the weak.

In fact, if the authors and professors decreed to me that replevin is the remedy, I would have swallowed it without question. But they did not.

We could not rely on the Supreme Court because it will take 15 years for the case to reach there, unless, you raise urgent issues of law, not of facts. Maybe the Supreme Court will accept the case originally and decide in 24 hours because a cadaver is perishable.

Remember that I asked you earlier, in the cadaver problem above, is the original question, in essence, the same as the reconstructed question?

At first, we thought that answer was yes. Now, in hindsight, the answer is no.

The original question calls for a prodigious photographic memory that could land the candidate as a bar topnotcher; it has a simple answer.

The reconstructed question calls for analytical thinkers than even law authors, professors, and practitioners from 20 to 40 years could quiet directly attack; it has no answer

Therefore, the two formats are no longer the same.

Who owns cadaver?

Now I have left open the question, who owns the cadaver? Remember the case when a bold movie star died in a car crash and the husband and parents fought for custody of the cadaver?

On one hand, death dissolves the marriage and also dissolves the legal relation by affinity. Does the cadaver, being now beyond the dissolved marriage, revert back to the parents? Or is it property that can be apportioned among the heirs, husband and children. The question is not easy once the facts state that the husband has abandoned the wife for two years now and has children with a new live-in partner.

Open your jurisprudence and textbooks now. And, yes, my command includes sitting judges. You will be surprised; many judges are ignorant of the law.

Accion strategia

What have we achieved so far in the installment?

We have proven that an enumeration question assesses nothing in the qualifications of the bar candidate to become a lawyer with analytical skills.

We have also proven that the Street Strategist can reconstruct a simple enumeration question into a deceptively simple analytical problem that may result in a problem with no solution at all.

Guys, we’re just freethinking, okay? Don’t let my hyperbole get in the way of your knowledge and understanding.

And finally, we have just discovered a new gap in property rights theory. Why not create an action to cover these kinds of problems - actions involving personal property not covered by replevin?

And, maybe, the new type of property action could be named after the Street Strategist. Hmmm,yes, it sounds good: accion strategia.

Do you want to me to post Part 7 to Part 10? email me.

streetstrategist@gmail.com

(Thads Bentulan, July 8, 2004)

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