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.
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.