Drafting an effective legal opinion

"It is a fact that people usually agree to disagree. The same also applies to opinions expressed on a matter of law, statute, or any of its provisions, circulars, notifications etc. This is more so in the case of tax laws which keep changing from time to time. Thus it is subject to varied interpretations. However a good opinion has to be able to withstand the litmus test which is that it should be upheld by any Court of Law of the land in course of time and ultimately the law must get amended in line with the same.

Opinion

What is meant by consulting?

It can be understood as providing advice in a particular area of expertise. In order to develop skills relating to assisting the clients, the following could be practiced:

a. Patience: A client may come with a problem and may not be able to express himself with clarity. He should be heard out without any interference patiently. 

b. Empathetic: The consultant must be empathetic towards his client and must give a patient hearing to his client.  He must get deeply involved in the subject and literally step into his shoes; only then will he be able to provide an unbiased and effective opinion.

c. Non-judgmental: The consultant should be impartial, and be willing to see all sides of an argument without jumping to conclusions.

d. Take notes: A note pad, writing pad should come in handy. The consultant should make notes in a systematic manner. He should put in date of his client’s visit, name of client/his organization, designation, note down the important points in discussion, list out solutions as well as contact details. Alternatively there can be a soft copy of discussions had with client.

e. Proper filing system: The client may come with agreements, copies of invoices, on which he wishes to get advice. There should be a proper filing and reference system of such documents so that nothing is misplaced.

Quality of Writing

The primary purpose of a legal opinion is communication of advice to either a lay man or professional client. It is therefore of the utmost importance that it is clear and in plain, understandable English. Every word of the legal opinion should be chosen by the professional because it communicates precisely the advice which the writer intends to convey.

Use of legalese may create a barrier between professional and client which could dilute the main purpose of the legal opinion.

The use of plain English simply involves saying what needs to besaid in the clearest way possible and avoiding unnecessary verbosity. Perfect grammar, punctuation and precision of language are essential.

There are times where technical terms will have to be used if they carry the precise meaning of the advice being delivered.

Clarity defines good writing. A legal opinion will often contain a complicated set of facts which will have to be sorted into specific legal issues and defined in legal terms. Clarity of expression is therefore vital. Clarity of expression can only be achieved through thorough planning and thought. A thorough plan will lead to a logical structure. Any legal opinion will be conveying a particular point, but that point will inevitably need to be broken down into sections. Each section will culminate into an opinion and each opinion must be fully explained.

Vocabulary

Legal writing extensively uses technical terminology that can be categorized in four ways:

1. Specialized words and phrases unique to law, e.g. fee simple, and novation.

2. Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit).

3. Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language examples are herein, hereto, hereby, heretofore, herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjectives).

4. Loan words and phrases from other languages: In English, this includes terms derived from French (estoppel) and Latin ( habeas corpus, prima facie, inter alia, sub judice).

Brevity

Less is usually more in legal writing. According to studies, many clients and readers find verbose opinions confusing and some may find it annoying. So a professional should  increase his chances of getting close attention to your key ideas with fewer paragraphs. Avoid unnecessary arguments, pages, paragraphs, sentences or even words. The most famous speech in American history – the Gettysburg Address – consisted of ten sentences read in two minutes. Few, if any, can be compared to Lincoln, but we all should keep in mind his mastery of concise text. Spend time editing and re-editing your documents, eliminating everything that can be cut out as long as integrity, clarity and your truly important points are retained.

Avoid Visual Fatigue

At times legal writing may be inescapably technical – even tedious. A document characterized by visual monotony can compound the problem, so where possible, try to break up the text by using some of the strategies below.

Use topic headings to separate different points, visually as well as analytically. This technique is appropriate whether you are writing just a mail reply or a written legal opinion.

Effective headings usually constitute a single sentence that encapsulates the message of the discussion to follow. Along that line, create a blank space separating the topic headings from the previous section as well as from the succeeding paragraphs.

Using a larger font size for topic headings will break up the sea of words while emphasizing a key point. Even the busiest reader is likely at least to flip through the document. Once seen, the topic heading may be interesting enough to take the reader through the entire argument that may prove to be crucial.

In addition to using topic headings between sections, you can also make the body of the text more visually digestible.

Procedure for drafting an opinion

1. Facts of client: what the client id doing? What are the various activity and transactions of the client?

2. Facts of industry: How is the industry in that business in the economy?

3. Enquiry with the client as to the various documentary evidence that is provided or received by them during various transactions

4. Client to be directly contacted (preferably) once with  discussion on the various issues faced or a talk with any other person who has contacted and had the discussion with client (normally senior professionals)

5. Put down all the documents, facts and quires raised by client provided by client.

6. Write a small note on the discussions to be raised to form parts of the opinion- initial planning.

7. Form initial answer for the quires raised.

8. Order of book usage:

9. Bare act, rules, amendments and notifications

10. Case laws- preferably use higher court judgment and recent 

11. Various authors book – to refer the reasoning of any conclusions made

12. Research about the issue.

13. Recheck for all the queries raised by client were addressed in opinion.

14. Advise intimation to the revenue [ give the present view of the revenue if known]

15. Divide the opinion into parts ex: background, discussion of the activities, answer to quires etc.

16. Use transition statement that shows how your opinion adds to the argument or suggests those previous statements and arguments are incomplete or faulty.

17. Actual discussion: Discuss the relevant aspects. For instance if it involves classification either as business auxiliary or business support service, explain why it should be treated as support service and not as business auxiliary service that is provided on behalf of clients.

18. Conclusion should be brief. After the discussion of each aspect conclude.

19. Then answer queries, set out all the queries as put initially after discussion and then answer each very shortly there-point wise.

20. Provide recommendations that you think could affect the transaction in the near future

21. An ideal opinion should express all the above within 5-7 pages and all statutory provisions later.

22. Once the opinion is framed is complete, read it with fresh mind without any conclusions in mind.

23. Aspects relating to procedures details should be provided in annexure so that client gets answers in as few and clear sentences as possible.

24. Advisable of allow a peer of the same department of review with a complete reading- two minds better than one.

25. Ensure that the opinion is provided to client within the time as informed initially.

If client is not informed then also opinion should be provided with in reasonable working days- 5 to 7 working days.

If several in depth discussion is necessary for the opinion then provide in review the executive summary that could be given for ease of reference of client.

A final view of all the communications, mails and documents given by client.

Conclusion

Above all it is vital to remember that in being asked to draft a legal opinion, you are being asked to advice. Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come down on one side or the other. Clients approach the experts for opinion and bank heavily on the same in taking crucial decisions in running their businesses smoothly and with a view to avoid unnecessary litigations in future.  Therefore it is imperative that the expert has to be extremely cautious and careful in providing the opinion sought by his client.

“Consultancy is a wide and challenging area of practice. It is ever evolving and only fresh talent with out of box thinking would make it better.”