By Protik Da
Most clients these days have become wise. They do not want to litigate, defend or even enter into transactions without obtaining a written opinion from at least one lawyer, if not more. Writing these opinions represents a dialectic between two schools of thought:
One holds that the lawyer is supposed to give his opinion, not the sources or precedents that he relies upon.
According to one school of thought, this has the advantage of not disclosing all the cards to the client because nine times out of ten, a client has his own favourite lawyer, who may not be particularly bright, but comes to you for an opinion because you are supposed to be an expert on the subject.
In other words, the client, even armed with your opinion, will not be able to go to some other lawyer and get the drafting/ conveyancing/pleading done because he and presumably the other lawyer will not have the judgments, legal provisions and authorities, you have relied upon.
The other school of thought to which I subscribe is to make the opinion precise but exhaustive in its scope.
Rather like saying be not eternal, since being an opinion you must end, but be infinite while you last! If the client chooses someone else and he is able to do an adequate job based on your opinion and research, he will have learned something new, and the profession itself will be enriched.
Remember, a profession is only as good as its least competent member, and you are judged not by the best of your kind, but the worst, more of this later, in some future installment.
An opinion, as I see it, must clearly and unambiguously set out the questions on which it is sought. If the Querist (which is what we call a person who seeks an opinion) is himself confused, his questions will be equally mindless.
It is your duty as a lawyer to unravel his tangled skein of thought, identify the issues that are material and on which the relief he wants depends, and then frame them as questions.
Of course, these must resemble the original questions because otherwise, the Querist will feel that you have not answered him. However stupid his questions might have been.
–
–
–
After that, state the facts in a manner that brings out the information that will become relevant to answering his questions, whether with a “yes” or a “no.”
This narration must not employ any fact that has not been supplied (rather like the facts in a moot), but it certainly ought to include any presumption or natural inference you have made from the facts for the purpose of the opinion.
You must, of course, state that this is your presumption or inference.
After the facts are over, you may begin your analysis, on which the opinion depends.
An easy way of analysing is first to set out the law and the provisions of the law (or laws) that are applicable. Then you summarize the binding precedents (judgments of the Supreme Court and the High Court of the State exercising jurisdiction over the subject matter) with full citations.
If your choice of excerpts is precise enough, your ultimate opinion will emerge from the excerpts of the judgments that you have quoted.
In the analysis you may also point out the conditions which have to exist for the answer to the queries to be positive or negative which will advise the client as to what steps he ought to have taken so that he can correct himself in the future in similar matters.
Then indicate in brief that according to the law applicable to the facts, where the Querist actually stands.
Numbering the paragraphs helps because, in your opinion or as part of the analysis, you may have to refer to what has been written before, and by referring to the paragraph number, you obviate the need to repeat the whole thing.
Now you are ready to answer the Queries, that is, the opinion proper, as it is called. Try to answer with a monosyllabic “yes” or “no”, referring to the paragraph number of the analysis and facts sections of the opinion.
Where that is impossible, keep your answers as short as possible. An example may help.
Where the Querist has asked, “Is the transaction a valid mortgage?” You can answer “Yes” or “No” and then add, “in view of what has been said in paragraphs such and such of the Facts and paragraphs such and such of the Analysis.”
However, when the Querist asks, “Why is this not a valid mortgage?” You cannot answer with ‘yes’ or ‘no’ but must explain, though with reference to what you have written in the Facts and Analysis sections.
Remember to use the usual disclaimers: the opinion is based on the law as it stands on the date you are signing it and, on the facts, and documents that were supplied to you by the Querist.
It helps if you list the documents supplied and also those you have consulted. Remember to add that you have done so according to the best of your ability.
If you are practising as an advocate on record, this will go a long way in saving you from being found guilty of professional misconduct and also negligent in any proceeding before the Bar Council or for damages for malpractice, in case your opinion was wrong.
Are you interested in learning more about legal research and writing in detail? Register today for Lawctopus Law School’s course on Legal Research and Writing, developed by Yale, NLSIU, and NLUD Scholars, and build your expertise in income-generating skills!
Legal research and writing are core skills that all legal professionals require. They cannot be replaced. Corporate lawyers, litigators, academicians, judges…everyone must be a quality researcher and writer!
The knowledge and skills you learn from the course will help you:
- Develop excellent research and writing skills. Know how to start, how to choose a topic
- Write excellent, publishable research papers that improve your ‘self’ and your ‘CV’
- Write prize-winning moot court memorials, quality research papers
- Draft high-quality legal opinions as a lawyer
- Go about footnoting, endnoting, and referencing like a pro
- Learn about editing your piece and presenting it in conferences, seminars
- Learn the fundamental practical aspects of tools like SCCOnline, Manupatra
Whether you are a 1st-year law student from a lesser-ranked law college, whether you are an experienced faculty member who already has a Ph.D or you may even be a practising lawyer wishing to know what the exact process behind quality legal research and writing can look like, you’ll find this course of great utility and spark!
Register for the course by clicking here.
—
Mr Protik Prokash Banerji, popularly called Protik da by law students, juniors, and friends, is an advocate at the Kolkata High Court. Interning at his chambers is an experience of a lifetime. People who learn drafting and oratory skills from him swear by the excellent teacher he is. He talks about movies and literature as authoritatively as he talks about law and wrote on such diverse subjects for the Economic Times in 1994-1995.
–
A lot of “how to write” guides and free samples are available on academichelp.net.
Note: This article was first published on January 24, 2013. The article was revised and updated on March 28, 2024.
Source: Lawctopus
