I. The mental attitude The mental attitude required to write a good opinion, or give good advice, is that of a practitioner as opposed to an academic. The approach required is a practical approach not an academic approach. The practical approach is something to be developed and acquired, and defining it does not necessarily help. But, the four fundamental principles to remember to develop the right mental attitude at all times are:- (a) You are dealing with a real situation. (b) The facts are more fundamental than the law. (c) The law is a means to an end. (d) Answer the question.
**PROCESS OF DRAFTING A LEGAL OPINION** Drafting a legal opinion can and should always be split into three processes: The mental attitude, the thinking process and the writing process. I. The mental attitude The mental attitude required to write a good opinion, or give good advice, is that of a practitioner as opposed to an academic. The approach required is a practical approach not an academic approach. The practical approach is something to be developed and acquired, and defining it does not necessarily help. But, the four fundamental principles to remember to develop the right mental attitude at all times are:- (a) You are dealing with a real situation. (b) The facts are more fundamental than the law. (c) The law is a means to an end. (d) Answer the question. II. The Thinking Process The next stage in writing an opinion is the thinking process. It involves the following stages:- (a) Read and digest your Instructions:- Find out exactly what your instructions are, what is required of you, what the case is about, what are the basic facts and what your client actually wants to know. (b) Answer the primary question:- You must have a clear idea of what your client wants to know if you are to address your mind the right issues and give proper advice. Your objective is after all, to tell your client what he or she wants to know. (c) Digest & organise the facts:- 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. (d) Construct a legal framework:- Once the facts are at your finger tips, a legal framework needs to be constructed into which these facts can be logically slotted. Different 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. (e) Look at the case as a whole:- What should also be borne in mind throughout the planning stage is the opponent’s 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. (f) Consider your advice:- What your client needs is good practical advice, so you should also consider the practical steps that you advise your client to take. 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. III. The Writing Process Simply knowing your opinion, knowing the answer, does not mean the writing process is a mere formality. You have to know how to express yourself in an opinion, how to transfer the thinking process on the paper. 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 your 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 Step’ paragraph advising what needs to be done to strengthen the client's case. Thanks