BPTC – Opinion writing
An opinion is a document stating advice on one or several issues arising in a case. It must contain considered advice but it is a working document therefore it must use language that is accurate, precise and concise.
It can be aimed at a professional client, a lay client or both and is practical in nature dealing with real situations. Issues can be such matters as liability; chance of success, evidence; what is already present or what further evidence is required to improve an issue (consideration being given to both sides in the matter) and practical and legal solutions or opinions on procedure or next steps in complicated or tactical issues.
Any opinion involves the application of a practitioner’s specialist expertise and therefore should involve in depth research. It can sometimes also be a second opinion. No opinion should ever be an academic piece of writing and therefore should not generally include references to law or statutory authorities unless absolutely necessary or where the area of law is specialist or new or where cases are being compared. It should apply the law to the facts or given scenario rather than describe it.
It is essential that the facts of a given matter are analysed to identify those that have been agreed or are in dispute and which need evidence to support them or any gaps that require attention. Legal issues should be analysed to identify any possible causes of action and the case for and against the matter should be considered as well. Once these matters have been dealt with and the legal research completed it is prudent to draw up a skeleton opinion on which to elaborate.
As with other legal documents proof reading, accuracy, clarity and correct spelling, grammar and punctuation are of optimum importance but language should reflect the reader of the document. It is of little use to a lay client if they cannot understand the opinion due to it being written in unintelligible language or if it contains in depth legal or technical terms.
Developing a good opinion requires identification of the issue(s), deals with the matter concisely and clearly, provides practical advice that can be easily followed or clarifies an issue to allow further steps to be taken. It should not leave the reader with doubt nor should it overtly criticise or judge. Its language should be fluent and unambiguous giving a clear route to follow and be logical with a concise conclusion setting out exactly the points or issues raised or explained. It is also accurate and clear, precise by saying exactly what is intended to be said and concise by being straight to the point but ensuring everything that is required to be said, is said.
The document should follow a logical structure. It should start with a heading followed by confirmation of the instructions as to when they were received and what is required. There should be a very short reiteration of the material facts and a quick summary including all the end products of the reasoning: likely outcome, chance, and possible quantum of damages, if applicable. The main body of the opinion should include explanation of legal and any other liability, evidence and further information followed by solutions: both legal and practical. Advice should be included as to next steps that are available or should be considered. These should relate to, not simply reaching a settlement or winning a case, but also how to do so, including the use of any tactical issues and what should be accepted or conceded, It is helpful at the end of the document to list the main points in the body of the document (with cross references) and a to do list.
Paragraphs should be a sensible length and numbered to allow for cross-referencing. Sub-headings should be used sparingly but where appropriate and specific to the content of that area of the document. The language, structure, content and practical value of an opinion are the indicators of whether one is good or otherwise.
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