Opinion Writing Notes
Opinion Writing Notes
Opinion Writing Notes
LAW4511
INTRODUCTION TO
OPINION WRITING SKILLS
1
OUTCOMES OF THE COURSE
• At the end of this module you will be able to:
o Understand why you need to develop the skills in
writing opinions
o Identify the various formats in which opinions are
written
o Understand under what situations and for what
reasons people ask for lawyer’s opinions
o Identify the matters that an opinion commonly deals
with
o Develop a fundamental analytical procedure in
dealing with a legal problem
o Appreciate the intellectual rigour and technical skills
required in opinion writing
o Realise the need to refresh and reinforce knowledge
on substantive as well as procedural law 2
SIGNIFICANCE OF
OPINION WRITING SKILLS
• In learning opinion writing, you are actually
o learning skills ;
o cultivating an aptitude, and
o cultivating way of thinking
that will prepare you for all aspects of a lawyer’s work.
• However, in Malaysia, the development of opinion
writing skills is very much neglected in practice. Perhaps
due to the inchoate nature of an opinion, the skills tend
to be considered dispensable by many practitioners.
• A well-written opinion should be the starting point in all
legal work. It is important for a lawyer to form a view
and decide from the beginning what the aim of the
exercise is. It must always be borne in mind that the
client is paying money for it. 3
Acting without well thought-out
opinion
Results:
• an approach which is not focused;
• speculative action;
• wrong steps being taken; and
• mistakes.
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• Without such an approach, you will
not have a premise for your advice
or drafting. You will not be able to
justify your work or your fees.
(d) sound – [Your objective in writing the opinion is to lead your client to
the clearest possible understanding of her position, so that she can
decide, on your advice, what to do about it.]
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What an Opinion is NOT
• Hence, it is important to bear in mind that an opinion is NOT:
b. Not an essay – [An essay, typically, sets out the thinking process, rather than the
fruits of the thinking process. An opinion should never resemble an essay.]
• Not an instruction - [Although an opinion is definitive, and you are giving your
judgment, you cannot go too far. You can tell your client what her position is and
advise her what to do; you can tell her how to go about doing things and give
instructions about the conduct of a case. But you cannot tell your client to bring an
action or abandon one; tell her to plead guilty or not. Decisions such as these are
your client’s to make (except in a very rare circumstance): your task is not to make
the decision for your client, but give her all the information and advice needed in
order to make the right decision.]
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Foremost - an Opinion is ADVISORY!
1. Memorandum of Law:
This is a written analysis of a legal problem that lawyers prepare for
their own use in advising clients, or at the request of another
practitioner. Since this memorandum is for office use only, although it
may be the basis for an important decision such as whether to
prosecute an action, it may be an informal document.
2. Opinion Letter:
This is a letter written by a lawyer to her client giving the client the
answer to a legal question and to give legal advice.
[Note: A well written memo would greatly assist in the preparation of an opinion
letter.]
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Instructions
• The instructions usually consist of documents or
pleadings.
• Sometimes instructions may also come from an
interview with clients.
• The precise scope of opinion will be defined:
o to assess client’s chance of success at law-suit
– intended or filed;
o best course of action to adopt;
o determine liability;
o advise on quantum.
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ESSENCE OF AN OPINION
• Essentially, the advice requires you to consider one or
more of the following matters:
o Liability
Does client have a cause of action? If so, what are the
chances of this succeeding in the trial/what legal
defences could a potential defendant raise? Would
these succeed at trial enabling the defendant to
escape liability or (as with partial defence of
contributory negligence) reducing the amount of any
damages which the defendant might be ordered to
pay if liability is established? If more than one cause
of actions is available to the client, which cause or
causes of action ought to be pursued? If there is more
than one potential defendant, which defendant or
defendants should be sued?
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• Remedies
If the lay client is successful at trial, what are
the legal remedies and are these available to a
successful plaintiff as of right or only at the
discretion of the court? If a particular cause of
action enables a plaintiff to choose between
different types of remedy, which should be
pursued? If more than one cause of action is
open to a client, which offers the best solution
to the client’s problem in terms of the remedies
available? Should the client seek an interim
remedy, such as an injunction, pending trial?
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• Quantum
What sum of money the client is likely to
receive if he or she succeeds at trial and
the court requires the unsuccessful
defendant to pay damages as
compensation for loss caused by the
defendant’s wrongdoing? Will the amount
be likely to be reduced owing to the
client’s own contributory negligence (in
tort) or failure to mitigate losses (in
contract)?
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• Evidence
What evidence is there which
could be put before the court to
establish those facts which the
lay client must prove in order to
succeed at trial? How strong is
the available admissible
evidence? What further evidence
is needed and how it should be
obtained? 24
• Merits
What are the strengths and weaknesses of
the client’s case?
• Settlement
What are the prospects of solving the
client’s problem and so avoiding the
expense of litigation by negotiating a
settlement with the other side? Is a
settlement which is being negotiated in the
client’s interest?
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• Thus you as a lawyer may be instructed to advise on liability
and/or merits with regard to a particular case.
• Sometimes the instructions will consist of or include specific,
precisely drafted, questions reflecting the distinctive facts of
a client’s problem.
• In relatively straightforward cases a lawyer may simply be
instructed to advise generally and must therefore exercise his
or her own judgment in determining what questions arise
from the facts revealed by the instructions which require
answers and upon what matters advice must be given.
• In any case, whatever the nature of the instructions received,
a lawyer must always consider whether or not there are any
further matters or questions, not specifically raised in the
instructions, which need to be considered by the client and
should advise upon these.
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MENTAL ATTITUDE IN OPINION WRITING: The
Practical Approach
• Practical Approach; not Academic Approach!
• Underlying such an attitude are the following four
fundamental principles:
YOU ARE DEALING WITH A REAL SITUATION.
THE FACTS ARE MORE FUNDAMENTAL THAN
THE LAW
THE LAW IS ONLY A MEANS TO AN END
ANSWER THE QUESTIONS
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BASIC ANALYTICAL PROCEDURE IN DEALING
WITH A LEGAL PROBLEM
1. Gathering and Organizing Facts
• Get the facts - as these determine the domain of your
advice.
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• If you are instructed as counsel, work on the basis of the
statements and facts prepared by instructing solicitor. The
instructions will include the following:
o The document setting out what you are asked to do, the
background of the case, a description and analysis of the
issues and possible answers suggested by your
instructing solicitors.
o Relevant documents, correspondence, plans,
photographs, pleadings, contracts, etc.
o Witness statements.
This is the time to listen and not the time to decide on what is relevant, as you
would not know what is relevant until you have heard the entire story.
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• The Advocate’s Functions
Regardless of how you are instructed, your function as
an advocate in regard to the case begins when you are
confronted with the following (prepared by your
instructing solicitor or yourself in that capacity):
(a) A Bundle of Documents - For proof of facts
verifiable by documents.
(b) Witness' statements - For proof of facts verifiable
by oral evidence.
(c) Client's instructions including:
(i) What she wants to be advised upon;
(ii) Legal problems and issues identified so far.
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2. Appraising the Facts
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Notes:
• Dates and times: All dates and times should be highlighted and
noted in chronological order. This will help to set the story in its
sequential order and to identify any missing event or lapse of
time. It will also confirm that the action is within the limitation
period prescribed by statute if litigation is being considered.
• Context - The concept of context begs the question: “At what stage in
what process am I?” The quality of your analysis and advice is
dependent on an awareness of your starting point. Different context
can influence your approach to the problem. You should also maintain
a continuing awareness of the stage you have reached in a case.
• Objectives - This is the most important reference point for you. Your
question should always be: “What am I trying to achieve?” It is a
question which can be answered at a number of different levels.
Ultimately your objectives are your client’s. You must obtain a clear
view of what your client wants whether express or implied (albeit in the
light of what your advice could reasonably be expected). Your legal
and factual analysis should keep those objectives in mind. Do not be
influenced by your client's strong emotions which may exaggerate the
true position. Do not jump to conclusions at this stage.
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4. Classifying the Problems
Once you have identified your client's objective(s) (the problems), you should seek broadly
to categorise your information. Such categorisation takes place at two levels.
• First, we often try to fix the problems that come before us into our established
framework of legal categories, so we identify problems as ‘contract’, or ‘tort’ etc. After
all, this is how we conceptualise academic legal problems. It is impossible to say that
this is simply the wrong approach, but it does carry with it the danger that these
sometimes artificial classifications of law will blinker you, so that you think purely
along one line - contract rather than tort, for example, rather than looking across those
subject divisions for the best solution.
As a way around this it is often more helpful to think first about your client’s objectives
and the legal remedy, or other outcome, that provides the best potential solution.
Adopting a remedial or outcome-led perspective can help you to maintain a more
flexible approach to classification.
• Second, you may broadly classify the problem according to whether it involves matters
of fact, law or procedure. This step is useful preparation both for constructing your
legal issues or hypothesis about the case.
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5. Identifying the Issue(s) / Problems Presented
The term 'issue' refers to the "hypothesis about of the
case". It is a kind of "plausible explanation of what may
have happened and its legal consequences."
Perhaps a more helpful definition is one given by Beatrice
Taines :
An issue can be defined as the point/s of
controversy in a given fact pattern which
need to be resolved by the application of
legal concepts and procedures (and their
attendant rules, regulations and principles).
By developing and identifying the issue(s) you will have a
clear sense of direction in making your evaluation of the
case.
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Developing an issue itself involves two elements: the creation of
legal and factual theories of the case.
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Raise various legal issues (not only the
major and patent issues but very often
ancillary issues or sub-issues: e.g. whether
a particular person can be joined in the
action, whether the limitation period has
expired and what the consequences are
likely to be) breaking the problem into its
smallest components.
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7. Apply the Law to Facts
1. Apply the law to the facts in the problem,
comparing and contrasting the facts with those in
the cases.
2. Note carefully that "the opinion is not a legal
treatise but a combination of the law as a
broadsheet on which to place and interrelate the
facts".
3. Applying the law to the facts means that the legal
relevance of each fact / document / event must be
identified.
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8. Draw Conclusions and Propose
Actions
1. Reach well reasoned conclusion about the probable
outcome of each issue and sub-issues, and anticipate
what the next course of action should be (should
proceedings be issued forthwith, should a defence be filed,
should negotiations take place or should a conference be
called?)
2. There must at least be one conclusion. You may qualify
your opinion in any number of ways but what your client
does not want is a survey of the current law on the
subject.
3. You must always answer the client's questions. There may
be more than one answer. But a lawyer must never say
there is no answer. 44
REVIEWING THE PRODUCT OF THE
ANALYSIS
Make certain that at the end of your factual analysis you have
the following:
(a) However, do not overdo this as it may be seen as you trying to "stave off"
the work to be done by asking too many questions.
(b) Whilst waiting for a reply see if, on the facts available, you are able to
construct an overview of the case with broad legal and factual issues.
(c). If you are, then proceed with your research into the relevant law to refine
and define the issues. Discard the legal issues which do not seem
plausible any more, concentrate on others.
(d). If the gaps in the information are too big, then wait for the reply. Do not
speculate. To do so would result in your research being desultory. 47
5. Evidential difficulties: These matters can
determine the success or failure of the case. You
should anticipate what further evidence will be
needed and must request it from instructing
solicitors or the client. You should expect that the
strength of the client's case will depend largely on
the possibility of adducing the relevant evidence
to support his case and rebut the opponent's
version of events.
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