PROFESSIONAL PRACTICE II

LAW4511
INTRODUCTION TO
OPINION WRITING SKILLS

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 OUTCOMES OF THE COURSE
• At the end of this module you will be able to:
o Understand why you need to develop the skills in
writing opinions
o Identify the various formats in which opinions are
written
o Understand under what situations and for what
reasons people ask for lawyer’s opinions
o Identify the matters that an opinion commonly deals
with
o Develop a fundamental analytical procedure in
dealing with a legal problem
o Appreciate the intellectual rigour and technical skills
required in opinion writing
o Realise the need to refresh and reinforce knowledge
on substantive as well as procedural law 2
 SIGNIFICANCE OF
OPINION WRITING SKILLS
• In learning opinion writing, you are actually
o learning skills ;
o cultivating an aptitude, and
o cultivating way of thinking
that will prepare you for all aspects of a lawyer’s work.
• However, in Malaysia, the development of opinion
writing skills is very much neglected in practice. Perhaps
due to the inchoate nature of an opinion, the skills tend
to be considered dispensable by many practitioners.
• A well-written opinion should be the starting point in all
legal work. It is important for a lawyer to form a view
and decide from the beginning what the aim of the
exercise is. It must always be borne in mind that the
client is paying money for it. 3
 Acting without well thought-out
opinion
Results:
• an approach which is not focused;
• speculative action;
• wrong steps being taken; and
• mistakes.

All these cause unnecessary expenses and

many mistakes committed in the legal
practice are irreversible.
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 Working from a reasoned and
comprehensive opinion
Outcome: You will have with you a
coherent and logical
o survey of all the facts;
o list of legal issues raised by each
fact;
o list of legal implications; and
o list of possible steps to take.
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• From this comprehensive view of
things, you will then have:
o a firm grasp of the case;
o some degree of confidence in
advising the client; and
o a foundation for drafting of
pleadings or agreements.

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• Without such an approach, you will
not have a premise for your advice
or drafting. You will not be able to
justify your work or your fees.

• Professionally, it is also important

to your career that you ensure your
professional time is not wasted on
irrelevant or non-issues.
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• If you are not discriminating in your tasks:

o you will not be doing justice to yourself as

a lawyer, and your reputation will suffer;
o you will unwittingly be lending a hand to
pointless litigation furthering, in some
cases, ill will and malice, rather than
assisting in the resolution of disputes;
o you will be contributing to the general
deterioration of the standards of the Bar;
o you will be contributing to the backlog of
cases.
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Ultimate OBJECTIVES of Opinions
• to give the client the service that she needs;
[She may come up to your office screaming for a day in court,
but if you listen carefully, she wants a solution to the problem
which is fast, effective and cheap. All the things not found in a
court action. Remember, litigation may be your lifetime career,
but it is certainly not that of the businesswoman's.]

• to build your career as a clear thinking, skilful and

reputable lawyer;
• to fulfil your proper role as part of the machinery of
justice by providing an avenue for disputes to be
aired fairly and rationally.
The legal opinion is where you incorporate your legal
research in a tangible and useful form.
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WHEN AND WHY DO PEOPLE ASK FOR
OPINIONS?
Legal opinions are called for in various situations and
reasons:
(a) When a crisis occurs and the client wants to know her
options and her exposure;
(b) When a dispute arises or is anticipated and the client
needs to know her legal position;
(c) Before the client enters into an agreement, she may
require an opinion on the draft agreement or indeed
require you to draft the agreement itself;
(d) Sometimes, before the client even embarks on
business, (e.g. an overseas client who is seeking to set
up a company in this country) she may want an
opinion on the local laws and regulations;
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(e) When the client needs an opinion on a finance
or security transaction before funds are
committed and risked.
(f) The client may want to use the opinion to
support her position in a negotiation or a
dispute with an adversary party, such as a
business rival, a labour union or a government
agency.
(g) Sometimes the client may want to use the opinion
in dealing with her own board of directors or
stockholders;
(h) She may also want it for publicity purposes, as to
explain her position in a statement to the press;
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(i) In a large organisation, an opinion
from the legal department may be
designed to guide or protect the
administrative official who must
make the decision.
(j) Sometimes a legal practitioner
might refer a matter to another
practitioner for a second or
specialist opinion or advice.
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Indeed, even when the client does not
expressly require an opinion, there are
situations where an opinion would be
useful to narrow her exposure to any
liability.

Example: When a client asks you to undertake a

course of conduct on her behalf, you may want
to give her an opinion so as to ensure that the
client is adequately advised and forewarned of
possible adverse implications.
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 What does a client want in an opinion?
How an opinion is written depends to a large extent on the purpose for
which it is intended. However, it must always be borne in mind that what
the client values most is a legal opinion that is:

(a) comprehensive – [Your opinion is your answer to a series of

questions asked of you by either a solicitor on behalf of the client or by
the client herself directly].

(b) objective – [Your opinion is a kind of interim judgement on your

client's present position as you see it. You must be objective, as a judge
would be.]

(c) pragmatic – [Your opinion is a piece of advice to your client

regarding her position and what she should do.]

(d) sound – [Your objective in writing the opinion is to lead your client to
the clearest possible understanding of her position, so that she can
decide, on your advice, what to do about it.]
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 What an Opinion is NOT
• Hence, it is important to bear in mind that an opinion is NOT:

a. Not an argument – [An argument seeks to persuade somebody of something and

there is no element of persuasion in an opinion. You are not arguing you client’s
case, presenting it to a court, or trying to prove anything.]

b. Not an essay – [An essay, typically, sets out the thinking process, rather than the
fruits of the thinking process. An opinion should never resemble an essay.]

c. Not a submission – [In making a submission one is putting forward an argument,

or a theory for someone else’s judgment. In an opinion, on the other hand, one is
exercising one’s own judgment, giving one’s own advice.]

• Not an instruction - [Although an opinion is definitive, and you are giving your
judgment, you cannot go too far. You can tell your client what her position is and
advise her what to do; you can tell her how to go about doing things and give
instructions about the conduct of a case. But you cannot tell your client to bring an
action or abandon one; tell her to plead guilty or not. Decisions such as these are
your client’s to make (except in a very rare circumstance): your task is not to make
the decision for your client, but give her all the information and advice needed in
order to make the right decision.]
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 Foremost - an Opinion is ADVISORY!

• An opinion is your response to

instructions to advise.
• It follows that it must contain
advice.
• In learning to write opinions, you
are more than anything else
learning to advise.
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 THE FORMAT OF AN OPINION
• An Opinion – the written advice that a lawyer
gives.
• There are no formal requirements about what an
opinion should set out or how it should be written
– i.e. there is no fixed and established rule which
determines or governs the exact form and content
of an opinion.
• Format of an opinion is a matter of style and that
there is absolutely no correct or incorrect way to
write an opinion.
• Moreover, since it is not a formal legal document ,
unlike a pleading, one may do it however one
wishes.
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Accordingly, every practitioner has to a greater or lesser
extent their own individual style. However you write your
opinion, there will always be a lawyer who will say “I don't
like your style, I wouldn't write it like that”. During your
training you will hear contradictory views forcefully
expressed.
NOTE:
Nevertheless, there are undoubtedly such things as
GOOD OPINIONS and BAD OPINIONS. There are certain
QUALITIES that a good opinion should have and certain
FUNCTIONS it should serve. And you cannot give it those
qualities or fulfil those functions if you simply write it in
any way that happens to take your fancy.
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 Usual Formats
• Conventionally speaking, an opinion is prepared in either of two forms:
Memorandum of Law or Opinion Letter.

1. Memorandum of Law:
This is a written analysis of a legal problem that lawyers prepare for
their own use in advising clients, or at the request of another
practitioner. Since this memorandum is for office use only, although it
may be the basis for an important decision such as whether to
prosecute an action, it may be an informal document.

2. Opinion Letter:
This is a letter written by a lawyer to her client giving the client the
answer to a legal question and to give legal advice.

[Note: A well written memo would greatly assist in the preparation of an opinion
letter.]

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 Instructions
• The instructions usually consist of documents or
pleadings.
• Sometimes instructions may also come from an
interview with clients.
• The precise scope of opinion will be defined:
o to assess client’s chance of success at law-suit
– intended or filed;
o best course of action to adopt;
o determine liability;
o advise on quantum.
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 ESSENCE OF AN OPINION
• Essentially, the advice requires you to consider one or
more of the following matters:
o Liability
Does client have a cause of action? If so, what are the
chances of this succeeding in the trial/what legal
defences could a potential defendant raise? Would
these succeed at trial enabling the defendant to
escape liability or (as with partial defence of
contributory negligence) reducing the amount of any
damages which the defendant might be ordered to
pay if liability is established? If more than one cause
of actions is available to the client, which cause or
causes of action ought to be pursued? If there is more
than one potential defendant, which defendant or
defendants should be sued?
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• Remedies
If the lay client is successful at trial, what are
the legal remedies and are these available to a
successful plaintiff as of right or only at the
discretion of the court? If a particular cause of
action enables a plaintiff to choose between
different types of remedy, which should be
pursued? If more than one cause of action is
open to a client, which offers the best solution
to the client’s problem in terms of the remedies
available? Should the client seek an interim
remedy, such as an injunction, pending trial?

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• Quantum
What sum of money the client is likely to
receive if he or she succeeds at trial and
the court requires the unsuccessful
defendant to pay damages as
compensation for loss caused by the
defendant’s wrongdoing? Will the amount
be likely to be reduced owing to the
client’s own contributory negligence (in
tort) or failure to mitigate losses (in
contract)?
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• Evidence
What evidence is there which
could be put before the court to
establish those facts which the
lay client must prove in order to
succeed at trial? How strong is
the available admissible
evidence? What further evidence
is needed and how it should be
obtained? 24
• Merits
What are the strengths and weaknesses of
the client’s case?

• Settlement
What are the prospects of solving the
client’s problem and so avoiding the
expense of litigation by negotiating a
settlement with the other side? Is a
settlement which is being negotiated in the
client’s interest?
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• Thus you as a lawyer may be instructed to advise on liability
and/or merits with regard to a particular case.
• Sometimes the instructions will consist of or include specific,
precisely drafted, questions reflecting the distinctive facts of
a client’s problem.
• In relatively straightforward cases a lawyer may simply be
instructed to advise generally and must therefore exercise his
or her own judgment in determining what questions arise
from the facts revealed by the instructions which require
answers and upon what matters advice must be given.
• In any case, whatever the nature of the instructions received,
a lawyer must always consider whether or not there are any
further matters or questions, not specifically raised in the
instructions, which need to be considered by the client and
should advise upon these.
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 MENTAL ATTITUDE IN OPINION WRITING: The
Practical Approach
• Practical Approach; not Academic Approach!
• Underlying such an attitude are the following four
fundamental principles:
 YOU ARE DEALING WITH A REAL SITUATION.
 THE FACTS ARE MORE FUNDAMENTAL THAN
THE LAW
 THE LAW IS ONLY A MEANS TO AN END
 ANSWER THE QUESTIONS

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BASIC ANALYTICAL PROCEDURE IN DEALING
WITH A LEGAL PROBLEM
1. Gathering and Organizing Facts
• Get the facts - as these determine the domain of your
advice.

• A single fact missed out can change the entire premise of

the case and determine the rights of the parties, e.g., the
existence of a letter of waiver in an action for breach of
contract.

• The importance of a comprehensive gathering of the

facts cannot be over emphasised.

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• If you are instructed as counsel, work on the basis of the
statements and facts prepared by instructing solicitor. The
instructions will include the following:

o The document setting out what you are asked to do, the
background of the case, a description and analysis of the
issues and possible answers suggested by your
instructing solicitors.
o Relevant documents, correspondence, plans,
photographs, pleadings, contracts, etc.
o Witness statements.

• If instructed directly by the client, distinguish between the

different roles and functions of a solicitor and an advocate
which you have to undertake.
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• The Solicitor's Functions
This is primarily a fact finding one and calls for the following observations:
(a) Do not form a legal opinion on the matter at this stage. Get all the
facts first. Get to the root of your client's problem.
(b) A rough idea of the legal context will help in identifying relevant fact
and issue/s, but do not force the client into agreeing to a version of
fact which seems to fit better your imagined legal scenario.
(c) Do not jump to conclusions.
For example, if the case concerns an alleged breach of contract:
i. Ask the client for all documents evidencing the contract especially correspondence by which
the terms of the contract may have been varied.
ii. Ask for the entire background leading up to the alleged breach. Get the detailed facts and
documents, especially in commercial transactions.
iii. As the story unfolds, cross-refer the client to facts given earlier on and enquire further.

Remember, the process is interactive.

This is the time to listen and not the time to decide on what is relevant, as you
would not know what is relevant until you have heard the entire story.
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• The Advocate’s Functions
Regardless of how you are instructed, your function as
an advocate in regard to the case begins when you are
confronted with the following (prepared by your
instructing solicitor or yourself in that capacity):
(a) A Bundle of Documents - For proof of facts
verifiable by documents.
(b) Witness' statements - For proof of facts verifiable
by oral evidence.
(c) Client's instructions including:
(i) What she wants to be advised upon;
(ii) Legal problems and issues identified so far.

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2. Appraising the Facts

• Read the instructions with an unbiased mind.

• Ascertain the chain of events (dates, times and
places), the identity of persons involved and
their connection to the problem.
• Determine if your client has told you the whole
story. She may not have omitted facts
intentionally; she may just not have realised the
relevance of those facts.

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Notes:
• Dates and times: All dates and times should be highlighted and
noted in chronological order. This will help to set the story in its
sequential order and to identify any missing event or lapse of
time. It will also confirm that the action is within the limitation
period prescribed by statute if litigation is being considered.

• Places: The locus in quo might be a significant or disputed

issue in the matter. Dates and places should be correlated.

• Dramatis personae [i.e. plaintiff, defendant, lay witnesses,

expert witnesses] All parties must be identified. At this stage it
is not important to determine whether the particular person is a
relevant party to the action. It may be that this person, although
not a major player, i.e. plaintiff or defendant, is and could be a
relevant party at a later stage, i.e. a third party to whom some
liability may be attached or, indeed, a useful witness.
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3. Classifying the Factual Information
• Advising a case does not take place in a
vacuum. You need to understand what you
are expected to do by your supervisor,
principal and/or by your client.
• Your perspective on any matter should
therefore be informed by three reference
points which are usually termed
o standpoint,
o context and
o objectives.
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• Standpoint - You are here essentially asking the question: “Who am
I?” By recognising your standpoint in a particular transaction you are
focusing on different functions, different levels of skill and different
expectations.

• Context - The concept of context begs the question: “At what stage in
what process am I?” The quality of your analysis and advice is
dependent on an awareness of your starting point. Different context
can influence your approach to the problem. You should also maintain
a continuing awareness of the stage you have reached in a case.

• Objectives - This is the most important reference point for you. Your
question should always be: “What am I trying to achieve?” It is a
question which can be answered at a number of different levels.
Ultimately your objectives are your client’s. You must obtain a clear
view of what your client wants whether express or implied (albeit in the
light of what your advice could reasonably be expected). Your legal
and factual analysis should keep those objectives in mind. Do not be
influenced by your client's strong emotions which may exaggerate the
true position. Do not jump to conclusions at this stage.
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4. Classifying the Problems
Once you have identified your client's objective(s) (the problems), you should seek broadly
to categorise your information. Such categorisation takes place at two levels.

• First, we often try to fix the problems that come before us into our established
framework of legal categories, so we identify problems as ‘contract’, or ‘tort’ etc. After
all, this is how we conceptualise academic legal problems. It is impossible to say that
this is simply the wrong approach, but it does carry with it the danger that these
sometimes artificial classifications of law will blinker you, so that you think purely
along one line - contract rather than tort, for example, rather than looking across those
subject divisions for the best solution.

As a way around this it is often more helpful to think first about your client’s objectives
and the legal remedy, or other outcome, that provides the best potential solution.
Adopting a remedial or outcome-led perspective can help you to maintain a more
flexible approach to classification.

• Second, you may broadly classify the problem according to whether it involves matters
of fact, law or procedure. This step is useful preparation both for constructing your
legal issues or hypothesis about the case.
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5. Identifying the Issue(s) / Problems Presented
The term 'issue' refers to the "hypothesis about of the
case". It is a kind of "plausible explanation of what may
have happened and its legal consequences."
Perhaps a more helpful definition is one given by Beatrice
Taines :
An issue can be defined as the point/s of
controversy in a given fact pattern which
need to be resolved by the application of
legal concepts and procedures (and their
attendant rules, regulations and principles).
By developing and identifying the issue(s) you will have a
clear sense of direction in making your evaluation of the
case.
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Developing an issue itself involves two elements: the creation of
legal and factual theories of the case.

Legal theory of the case - By legal theory is meant simply the

construction of arguments for one or more potential legal actions,
i.e. a claim for breach of contract, negligence etc. The creation of a
legal theory itself presupposes two things.

A factual theory of the case - In developing a factual theory you are

moving down a level from your legal analysis. You are now concerned
more with the facts and evidence that must be mustered to establish
the ingredients of a cause of action. Constructing a factual theory
thus involves ‘a creative process of using known data to generate
hypotheses to be tested by further investigation’. It requires a style of
reasoning that is based on your ability to use existing knowledge and
information to infer potential facts and explanations.
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You are here essentially asking yourself
a series of very basic questions about a
case:
i. What happened?
ii. How did it happen?
iii. Why did it happen?
Your answers to those questions will
constitute your theory of the case.

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Raise various legal issues (not only the
major and patent issues but very often
ancillary issues or sub-issues: e.g. whether
a particular person can be joined in the
action, whether the limitation period has
expired and what the consequences are
likely to be) breaking the problem into its
smallest components.

Go back to Issue Formulating notes!!

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6. Find the Rules
Find the rules that govern these issues and
sub-issues. (This is to say the legal rules
upon which the cause or causes of action are
based). The rules may include the general
rules (from statute and/or cases) as well as
fact specific decisions from cases that
illustrate what is sufficient and insufficient to
meet the legal standard. The rules can be
structured as follows:
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ISSUE I
RULE
sub-issue (a)
Rule
sub-issue (b)
Rule
ISSUE II
RULE
sub-issue (a)
Rule

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7. Apply the Law to Facts
1. Apply the law to the facts in the problem,
comparing and contrasting the facts with those in
the cases.
2. Note carefully that "the opinion is not a legal
treatise but a combination of the law as a
broadsheet on which to place and interrelate the
facts".
3. Applying the law to the facts means that the legal
relevance of each fact / document / event must be
identified.
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8. Draw Conclusions and Propose
Actions
1. Reach well reasoned conclusion about the probable
outcome of each issue and sub-issues, and anticipate
what the next course of action should be (should
proceedings be issued forthwith, should a defence be filed,
should negotiations take place or should a conference be
called?)
2. There must at least be one conclusion. You may qualify
your opinion in any number of ways but what your client
does not want is a survey of the current law on the
subject.
3. You must always answer the client's questions. There may
be more than one answer. But a lawyer must never say
there is no answer. 44
 REVIEWING THE PRODUCT OF THE
ANALYSIS
Make certain that at the end of your factual analysis you have
the following:

1. The chronology of facts and events: This has to be

detailed, the details being built up over several readings of
the documents. In the course of doing so, you should be
noting the following:

(a) Cross references between documents /events/people.

(b) Gaps - missing documents/facts.

(c) Your objective observations and questions.

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2. The index of events and people: The "dramatis
personae" needed in a case, which is more than a
little involved.

3. The list of legal issues: These should be at the

back of your mind which are refined and defined
using legal terminology as analysis progresses
and as further facts are clarified.

(a) In formulating relevant facts have been

omitted.
(b) Bear in mind that legal issues are not fully
settled until you write the opinion and when
you actually relate them to the questions the
client is asking issues, you may discover that.46
4. List of items to revert to your instructing
solicitor/client: This may not be a "one time" list. It may
be a repeated exercise.

Information in the form of documentary evidence, plans, reports, maps,

photographs, real evidence may not be among the papers sent to you
by instructing solicitors or the client. If these exist, they could throw
new light on the eventual success or otherwise of the case. You
should, therefore, requests missing information from your instructing
solicitors or the client in specific form, for example, a further statement
from the plaintiff clarifying X, or an expert report from Y.

(a) However, do not overdo this as it may be seen as you trying to "stave off"
the work to be done by asking too many questions.
(b) Whilst waiting for a reply see if, on the facts available, you are able to
construct an overview of the case with broad legal and factual issues.
(c). If you are, then proceed with your research into the relevant law to refine
and define the issues. Discard the legal issues which do not seem
plausible any more, concentrate on others.
(d). If the gaps in the information are too big, then wait for the reply. Do not
speculate. To do so would result in your research being desultory. 47
5. Evidential difficulties: These matters can
determine the success or failure of the case. You
should anticipate what further evidence will be
needed and must request it from instructing
solicitors or the client. You should expect that the
strength of the client's case will depend largely on
the possibility of adducing the relevant evidence
to support his case and rebut the opponent's
version of events.

6. Procedural difficulties: You should ascertain

from the papers whether any time limits are
imminent, whether they will cause difficulty and
should deal with them appropriately.
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7. Case against the client / Counter-argument : You may
have to act on behalf of either the plaintiff or the defendant,
and the focus of your advice will be on that party. However,
in advising your client, you will need to be aware of the
other side's case and must be willing to take account of
any adverse evidence likely to affect the outcome. You
should advise accordingly, anticipating what the other
party is likely to raise ('counter-argument').

8. Strength of the case: More than anything else the client

will want to know how robust or weak his position is in
relation to his opponent's case. From the papers, you
should be able to predict a realistic outcome without
building up false hopes. You should be objective and
truthful about the prospects of the case; this should be
communicated clearly and concisely in the opinion.
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9. Relevant figures: Quantum, costs and liability are
three of the most important issues around which
many actions revolve. It is important therefore to
identify the basis on which any award may be
made or the likely cost that any proposed party to
the action may face by looking at the relevant
figures in the case. Tabulated heads are useful for
identifying figures, in an effort to assess what the
overall final amounts could be.
10. Contingency issues: As a corollary to the
foregoing, be prepared to deal also with a
contingency issue, i.e. an issue which is
dependent on the resolution of a prior issue.
Example: liability and damages.
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10. Begin to write the Opinion.

“Where shall I begin, please your

Majesty?” asked the White Rabbit.
“Begin at the beginning,” the King said
gravely, “and go on till you come to the
end: then stop.”
Lewis Carroll

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