Study Unit 3 – eLearning RPK 214

A SYSTEMATIC APPROACH TO

PREDICTIVE LEGAL WRITING

CLIENTS – ADVICE &

COUNSELLING

- Clients = foundation of lawyer’s profession

- Clients: require advice & counselling

- Advice & counselling = complementary but different skills

- ADVICE STAGE: Objective investigator (What can I do?)

- COUNSELLING STAGE: Personal advisor (What should I do?)

- Counselling can only occur after an opinion has been formed

PREDICTIVE LEGAL WRITING

STEP 1: COLLECT & CONSIDER FACTS

STEP 3: RESEARCH LAW

STEP 4: APPLY LAW TO FACTS

STEP 2: IDENTIFY ISSUES & SUBISSUES

STEP 5: CONCLUSION

o LISTEN to cliento What is the client’s problem?o What is the factual background to the

problem?o Identify issue & client’s objectives

o What legal principles applies to the facts?o What is the effect of those legal principles to the facts?

o What are the consequences of each option?o Of all the options, which is the best one?o Why do you think so?

o What should client do?

TYPES OF PREDICTIVE / ANALYTIC WRITING

LEGAL ADVICE BY LETTER (To client)

ADVICE BY MEMORANDUM (Inter-office)

LEGAL OPINION (more formal)

1. ADVICE BY LETTER

Aimed at lay client

Format:

subject-matter should be broken down into paragraphs, each

dealing with a distinct subject:

1. Executive summary2. Body3. Reasoning / argument4. Conclusion / advice

ADVICE BY LETTER1. EXECUTIVE SUMMARY

• Client’s instructions / FACTS F• Answer to question / problem• Recommendations

2. BODY• Facts• Discuss question / problem I

3. REASONING / ARGUMENT• Reasons for the conclusion wrt facts & law

RA

4. CONCLUSION / ADVICE• Conclusion / Recommendations C• Advice on practical implementation

FURTHER NOTES ON ADVISE PER LETTER

AIM: To give advice to lay client

STYLE & CONTENT: Such that lay client is given clear understanding of options & position

PLAIN LANGUAGE – even the technical part

E-MAIL – Same approach as with letter

- If adding attachments, convert into PDF, to prevent any changes to be made

2. ADVICE PER MEMORANDUM

STYLE >Formal & subtle than letters

AIM Advising corporate / institutional clients

Advocateso Dealing with matters of procedureo Record advice given orally (consult)o Engaging in counselling process

Junior attorneys: Reporting to seniors Inform & recommend course of action

FORMAT OF MEMORANDUM

START:

BODY:

ARGUMENT:

CONCLUSION:

Same as letter of advice

Set out facts in more detailExplain how problem aroseLegal principle relevant to problem

Analyse facts & law in detail (opinion)“What can client do?”“What should client do?”

Firm advice & consequences of any decisions made.Practical advice on way forward

3. WRITTEN OPINIONS

• Traditionally AIM: Advice by advocates

• Differs from ‘advocacy’ / arguments:

ADVOCACY OPINIONSubjective approach Objective approach

Argues client’s case, whether believe in it or not

Informs client what he really thinks of case

Litigation Advice

OPINIONS…STYLEADVISORY – answers factual & legal questions

NOT ACADEMIC

CASE SPECIFIC – where facts change, answers change!

REQUIRES CONSIDERATION OF SPECIFIC LEGAL PRINCIPLES

OBJECTIVE – almost dispassionate

NOT DESIGNED FOR COUNSELLING CLIENTS (counselling the client is left to the attorney)

1. INTRODUCTION

2.DISCUSSION OF FACTS

3. ISSUE

4.ANALYSIS OF LEGAL PRINCIPLES INVOLVED

5.CONCLUSION / OPINION

FRAMEWORK OF OPINIONS

INTRODUCTION

START WITH CLEAR STATEMENT OF QUESTION TO BE ANSWERED:

“I have been asked to advise on the consultant’s prospects of success on appeal against the judgment of Mr Justice

Wilson, delivered on 1 April 2007”

NOT A RECITING OF FACTS!

DISCUSSION OF FACTS

Facts set out

Sometimes facts need to be found

Not mere recital of facts: ANALYSIS of evidence!

Some questions to consider:What are the basic facts?What are the inferences to be drawn from facts?Are there some doubtful facts?Is there more information available?Can the crucial facts be proved?What is the burden of proof?

ISSUE

What does the client want?

WHAT ARE THE PROBLEMS?

ANALYSIS OF LEGAL PRINCIPLES

START WITH LAW!

STATE PERTINENT LEGAL PRINCIPLES

HOW DO THEY APPLY TO FACTS? (What is the law on the point?)

END WITH FACTS!APPLY LAW TO FACTS

MOST NB PART!

DEMONSTRATE HOW YOU REACHED OPINION

CONCLUSION

ARRIVE AT AN OPINION

Process like argumentIs conclusion justified by facts, law, argument?

REREADHave all facts been covered?Have all legal principles been included?

YOU ARE NOT OBLIGED TO HAVE A FIRM OPINION!

IMPORTANT NOTES ON OPINION-WRITING

Good opinion

Good fact analysis (BB)

Weight & significance of facts

How would conclusion differ if facts were not as they are

If facts = insufficient express views on hypothetical basis

Consider main argument AGAINST your views deal with it

Use headings & subheadings

Avoid arrogant / absolute statements

When citing authority, use full citation

Number paragraphs!

Good research skills

THE END