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
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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