The Plain English Approach to Writing Legal Opinions

Legal opinion or Opinion Letter

An opinion of law consisting of written advice provided to a client, who may choose how to act after considering the advice.

Bryan A. Garner, The Redbook: A Manual on Legal Style

An opinion letter must not lull the client into a false sense of security. Relying on the letter should put the client in the best legal posture against any future dispute. But this reliance cannot guarantee that the client will stay out of court, and it cannot guarantee that the client will prevail in any resulting litigation. Another party can sue no matter how good an opinion letter is, and no matter how carefully the client has relied on it. Although relying on the letter should insulate the client against litigation as effectively as possible, the letter does not mean that the client will never need a courts help in getting someone else to comply with the law. And the letter does not provide a defense to someone elses lawsuit.

Writing Good Legal Opinions

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 299 (2002)

An opinion letter should openwith a summary of the issue and your conclusionsThe opening should set forth every assumption on which the opinion is based, the basic facts (woven into the issue), and the conclusion (with a brief statement of its basis).

Then, after the summary, a full statement of facts may appear. Some opinions do not require a lengthy fact section; others, such aspatent infringement or insurance coverage, do require one.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 299 (2002)

The body [then] explains what legal principles apply, where they are derived from, and how they apply to the facts. The conclusion then restates the main findings, preferably in a slightly different form (do not simply repeat the summary).

Outline of a Legal Opinion

Issue Presented Answer or Opinion; Assumptions on which the Opinion is Based; Statement of Facts; Legal Analysis:

What legal principles apply; Where they derive from; and How they apply to the facts.

Conclusion.

Bryan A. Garner, The Red Book: A Manual on Legal Style (2002)

Clients who seek opinions want to know what their rights and liabilities are and what the possible legal consequences are in a given situation. Avoid meandering before giving an answer[A]n opinion letter should not resemble a treatise or law-review article. Focus on the specific facts presented and the particular legal issue to which they give rise, with a full assessment of the controlling legal principles. State your conclusions and advice as clearly as possible. Avoid giving a broad answer that could be applied to a different question or to the same question but with significantly different facts. Use plain English. If you use legal terms that the client may not know, explain them.

Common Faults

(1) Non-responsive opinion. (2) Template-driven opinion. (3) Jumping to conclusions.

Bryan A. Garner, The Red Book: A Manual on Legal Style (2002)

An opinion letter is ineffective if it does not both pose a clear issue and answer it. Not every issue has a firm yes-or-no answer, but an unambiguous conclusion should be stated with only specific and necessary qualifications or reservationsReaching an unnecessarily tentative conclusion, hedged with general reservations and qualifications, wont give the client an answer that he or she can understand or any confidence in your advice.

Example of a Good Legal Opinion

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[1] You have asked the firm to review the performance of your prior counsel, W & P, in representing your company, Biltmore Corporation, concerning title issues over Lot 2 (commonly known as Parcel 3) and the actions of USM Title Company.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)
[2] Specifically, you have asked whether any of W & Ps advice fell below the standard of care expected of legal professionals and, if so, whether Biltmore can now sue W & P for legal malpractice. In brief, we conclude that (1) at least some of W & Ps advice fell below the level of skill and diligence that other members of the legal profession possess and would use in a similar situation, but (2) an action based on malpractice would probably fail because Biltmore will have great difficulty proving that is has incurred actual damages.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)
[3] Of course, in discussing the actions and the advice of W & P, we have the benefit of examining the actions of W & P in hindsight. We have attempted to form our opinion on W & Ps action and advice without making unfair use of the perspective of hindsight. Moreover, a detailed knowledge of the totality of the communications between the individuals at W & P and those at Biltmore might change the facts and assumptions on which this letter is based.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[4] Although in many respects W & P did

provide the advice that we believe would have been appropriate to the situation, most of the matters on which we differ with W & P are those where competent lawyers could disagree.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[5] Yet in one particular area, we believe that W & P failed to exercise the level of skill and diligence that other members of the legal profession possess and would use in a similar situation. Specifically, we believe that W & Ps advice to Biltmore at the time of the settlement agreement between Biltmore and USM Title was deficient. This conclusion is based on our understanding that W & P failed to discuss with Biltmore the potential scope of the release that Biltmore was to sign and failed to take the necessary steps to identify other claims that might have existed against USM Title claims that appear to have been released under the language of the agreement.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

x x x [6] Based on the information we have received, we find fault with the actions and advice of W & P in not fully advising Biltmore as a releasing party. But as explained more fully below, we do not believe that W & Ps actions give rise to a claim for legal malpractice, since it is uncertain that all the elements for a malpractice claim can be shown.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)
[7] A legal malpractice claim arises if (1) the attorney has a duty to the client to use at least the level of skill and diligence that other members of the legal profession possess and use; (2) the attorney fails to use the appropriate level of skill and diligence in connection with the clients work; (3) this failure proximately causes injury to the client; and (4) the client suffers actual loss or damage as a result of the attorneys failure to act appropriately. [citation omitted]

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

xxx [8] As discussed above, we believe that W & P had a duty to explain to Biltmore the fact that the release could be construed as releasing all future claims against USM Title, whether or not those claims had arisen. The failure of W & P to advice Biltmore of the potential effect of the release could arguably give rise to a claim against W & P for legal malpractice.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303-304 (2002)

[9] But to maintain a malpractice claim, the alleged malpractice must have cause the client to suffer actual damages: The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for the attorneys negligence or legal malpractice. Xxx

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[10] Biltmore has informed us that it is not certain whether Biltmore would have settled if it had been informed by W & P that, by signing the release, Biltmore would be releasing all future claims against USM Title. But even if Biltmore had not signed the release, the chance of recovery from USM would be speculative at best. If no damages were suffered by Biltmore, any claim for legal malpractice would be likely to fail.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303-304 (2002)

[11] In conclusion, we do not believe that the advice given by or the actions taken by W & P give rise to a claim by Biltmore against W & P for legal malpractice. Although W & P failed to advice Biltmore of the potential effect of the release on any future claims that Biltmore may wish to bring against USM Title, it is uncertain whether Biltmore has suffered any damages as a result of W & Ps actions. This uncertainty of actual damages would make a claim for legal malpractice difficult to prove.

Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[12] Please contact us if you have any questions about the matter here discussed, or any other issues. Very truly yours,