The following will be a guide to writing an effective and legally sound legal opinion. It will begin by discussing the qualities of good writing which is central to writing a successful legal opinion. It will then move on to discussing the formulation of the legal opinion itself. Finally it will discuss the use of law in a legal opinion and how to refer to both case law and statute effectively and efficiently.
Quality of Writing
The primary purpose of a legal opinion is communication of advice to either a lay or professional client. It is therefore of the utmost importance that it is clear and in plain, understandable English. Every word of the legal opinion should be chosen by the writer because it communicates precisely the advice which the writer intends to covey.
It is important to write in plain English wherever possible. A good legal opinion will avoid archaic language and legalese. Use of legalese will create a barrier between lawyer and client and divert the main purpose of the legal opinion; to communicate. That is not to say that the legal opinion should be over simplified. It will no doubt be conveying specialised legal advice and must therefore be as detailed as the writer thinks necessary. The use of plain English simply involves saying what needs to be said in the clearest way possible and avoiding unnecessary verbosity. There are times where technical terms will have to be used if they carry the precise meaning of the advice being delivered. This should not be shied away from. Perfect grammar, punctuation and precision of language are essential.
Clarity defines good writing. A legal opinion will often contain a complicated set of facts which will have to be sorted into specific legal issues and defined in legal terms. Clarity of expression is therefore vital. Clarity of expression can only be achieved through thorough planning and thought.
A thorough plan will lead to a logical structure. Any legal opinion will be conveying a particular point, but that point will inevitably need to be broken down into sections. Each section will culminate in an opinion and each opinion must be fully explained and justified. Clarity of legal writing also requires conciseness. This does not necessarily imply brevity, but once the point has been made, nothing more need be said. Having said that, completeness and total accuracy is vital and conciseness should not come above giving full and precise advice.
Formulation of a Legal Opinion
A request for a legal opinion will usually come in written form. Such a request will usually include any documents in the case. The request for a legal opinion will include at least one and usually a number of questions which the legal advisor is being asked to address. For a barrister an instruction to provide a legal opinion will come from a solicitor so any response will be written with the solicitor in mind as the reader, but the solicitor will have requested the legal opinion in order to advise the client and therefore the client must be borne in mind as well. The client will want to know for example not “will liability be established?”, but “will I get any money out of this and if so how much?”
A legal opinion will often have the over arching question of does the client have a good and viable case. This is clearly the most important question to any client and must be approached with honesty and directness. If the client’s case is not viable they must be advised of this in the course of the legal opinion, if there is something which can be done to improve the client’s prospects of success, a good legal opinion will spell this out very precisely. Numbered action points are one way of achieving clarity in this regard.
Above all it is vital to remember that in being asked to draft a legal opinion, you are being asked to advise. Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come down on one side or the other.. Giving a percentage chance of success at the beginning of a legal opinion is one way of being clear about what you think the client’s prospects are.
Drafting a legal opinion can and should always be split into two processes: The thinking process and the writing process.
The Thinking Process
The first thing to do is to digest and organise the facts. There will be facts in any case which are relevant and pertinent to the case and facts which are not. A legal opinion must focus on the relevant facts, but it may also be necessary to specifically advise that certain things are not relevant. The first stage will be about organising the facts of the case into these categories. It is a matter of personal preference how this is done, but charts and schedules are often useful and a chronology should be a starting point for every fact marshalling exercise.
Once the facts are at your finger tips, a legal framework needs to be constructed into which these facts can be logically slotted. A legal opinion in a personal injury action for example will be based on negligence and therefore will usually be structured along the lines of duty, breach, damage, causation, forseeability and contributory negligence. In a negligence legal opinion it will be vital to assess the level of damages that the client can expect to receive or pay out. This will be at the forefront of the client’s mind.
Other types of cases will involve different legal frameworks, but whatever the legal issue, the legal opinion must be continuously advising on the strength of the client’s position in the case. One question which is implicit in every request for a legal opinion is ‘what should be done next?’ This should be decided at the planning stage and should inform the legal opinion throughout.
What should also be borne in mind throughout the planning stage should be the opposing case. A legal opinion will be useless if it considers the client’s case in isolation. Evidential issues must also be considered. A good legal opinion will always address how a particular factual situation can be proved.
Before you begin writing a legal opinion, you will know exactly what advice you are going to give, why you are giving it and how you are going to present it.
The Writing Process
The legal opinion should be written following a structure. It should be entitled OPINION or ADVICE and contain the title of the case in the heading. The first paragraphs should serve as an introduction to the legal opinion, laying out the salient facts and what you have been asked to advise about.
At this point, many legal opinions will set out the main conclusions and advice and the overall opinion. This is good practice as it will encourage focus throughout the legal opinion and the reader will be able to read the following paragraphs knowing where they are leading. A percentage chance of success can be included in this section if appropriate.
The subsequent paragraphs should set out your reasons for reaching the legal opinion which you do in the opening paragraphs. This is where the legal structure will come in. Each issue should be taken in its logical order. Each section should include you opinion on that issue and the reasons for it.
There are certain rules of structure which ought to be followed for the sake of consistency in legal opinions. One example of these is that liability should be dealt with before quantum in civil claims. If there are two or more defendants take each of the defendant’s liability in turn before turning to quantum.
The concluding paragraph of a legal opinion ought to be a ‘Next Steps’ paragraph advising the instructing solicitors of what needs to be done to strengthen the client’s case.
Using the Law in a Legal Opinion.
There is no need to set out basic principles of law with which the reader will be familiar. Otherwise, authorities should be cited to support propositions of laws and when doing so a full citation should be given. It is important to prioritise the authorities cited in a legal opinion in order of importance to the point being addressed. If a particular case is central to your reasoning, the basis on which the case was decided should be set out fully in the legal opinion. It may even be appropriate to quote directly from the judgment although often paraphrasing the effect of the decision will usually suffice. Always refer the case you are citing back to the facts being dealt with in the legal opinion. Always cite the most authoritative case on the point of law being dealt with. For example, there is no point citing a Court of Appeal judgment which has been overruled by a subsequent House of Lords case.
With regard to statute, much of the same advice will apply. If there is a statutory provision which deals directly with the subject of the legal opinion then this should be clearly stated and its effects fully explained. Of course care must be taken to ensure that any statutory provision being cited is in force at the time of writing the legal opinion.
In summary, any legal opinion should be written with the reader in mind. It should be clear, well reasoned and as concise as it is possible to be without sacrificing completeness. A logical structure based on the legal principles being discussed is vital to clarity. Any piece of legal writing should be read before submission to ensure against grammatical or typographical errors which will detract from the communicative value of the work. Above all, the advisory purpose of a legal opinion should be borne in mind at all times.
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