How to Write Legal Opinions

By Protik Da

Most clients these days have become smart.  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 represent a dialectic between two schools of thought:

One, which holds that the lawyer is supposed to give his opinion, not the sources or precedents that he relies upon.

This has the advantage, according to one school of thought, 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 that 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 would 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 set out the questions on which it is sought very clearly and unambiguously.  If the Querist (which is what we call a person who seeks the 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.

how to draft legal opinions

a client’s tangled skein of thought

After that, state the facts in a manner which brings out the materials that will become material for answering his questions, whether with an “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 to first set out the law and the provisions of the law (or laws) that are applicable.  Then you go on to 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 extracts is precise enough, your ultimate opinion will appear from the extracts 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 help, 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 of repeating 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, where 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 has been written by you in the Facts and Analysis sections.

Remember to use the usual disclaimers, that the opinion is based on the law as it stands on the date when you are signing it, and is based on the facts and documents that were supplied to you by the Querist.

It helps if you list the documents supplied and also that which you have consulted.  Remember to add that it is 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.

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 life time. 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 on 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.

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Comments Till Now

  1. E S Jagadeeshwar says:

    In my opinion there is no fixed proforma to give legal opinion. Giving legal opinion is a delicate task. Advocates should not blindly follow the words of the client/s. To give legal opinion for property matters “investigation of title” is compulsory.

    I think Legal Opinion given by an Advocate is not an admissible evidence. The said opinion is useful to the client to know the legal position basing on the documents produced before the Advocate, in any case if the opposite party become as a defaulter, whether the other party can recover the money ( for example ) by filing the case in the Court? or not? What admissible evidence he is required?

    Giving legal opinions relating to property matters or in case of family disputes is not an easy one. If a person died intestate who will be legal heirs? who has to succeed as per the personal laws? where they have to file the case to transfer the property in the legal heirs name? Another thing is what is the necessity of registering the document? if the document is not registered what is the impact?

    Giving legal opinion is also an art. Without indepth knowledge one cannot give a opinion upto the satisfaction of the client. If the documents are fake or fabricated or forged how an Advocate has to know? In some cases police initiated legal proceedings for giving the legal opinion.

    Any opinion is basing on the latest position of law, genuine documents or link documents produced before him, if a party initiate legal proceedings basing on the available information whether he can win the case or not?

    Many Advocates at Trial Court don’t have proper clarity on giving the legal opinion. There must be proper proforma and guidelines. For example if a Bank wants a legal opinion from their Standing Counsel, they have to provide the proforma and has to clearly mention what are their requirements? Regarding what point they want legal opinion? they have to give in writing. A legal opinion should not be a plaint or written statement or a petition or counter.

    Generally Advocate has to know whether the documents are genuine or not? what are the link documents? who are the original owners? in case of property matter how a client obtained the said property from whom? how? when? details of consideration? registration fee? description of the properties, whether these details are available or tallied with Govt. records? whether the said transaction was registered or not? Limitation of the said transaction? whether it is time barred in case if the time is fixed in the agreement, etc.

    In our country innocent farmers living in rural areas are facing lot of problems for not knowing the legal formalities to be fulfilled to register a document.

    Young Advocates have to study on this delicate topic .. Legal Opinion .. How to write legal opinion? Advocate has to know how to write legal opinion as well as what precautions to take in advance to avoid unwanted legal wrangles.

  2. Adv g.hariharan says:

    Just stumbled upon the article today. A good effort Protik indeed. You could have as well added a disclaimer clause required at the end of an opinion suitably worded so that you are not sued for any infinite amount by the client later. Normally, the damages are restricted to the actual amount of fees paid, you should be aware I am sure. Again my sincere appreciation. Adv g.hariharan Meritus Juris Advocates & Legal Consultants, Mumbai [email protected]

  3. Any idea on how to apply for internship at Mr. Protik’s chamber? Any mail id or contact no.?

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