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

o LISTEN to client
STEP 2: o What is the
IDENTIFY client’s&problem?
ISSUES SUBISSUES
o What is the factual background to the problem?
o Identify issue & client’s objectives
STEP 3: RESEARCH LAW
o What legal principles applies to the facts?
o What is the effect of those legal principles to the facts?
STEP 4: APPLY LAW TO FACTS
o What are the consequences of each option?
o Of all the options, which is the best one?
STEP 5: CONCLUSION
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 summary
2. Body
3. Reasoning / argument
4. Conclusion / advice
ADVICE BY LETTER
1. 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

 Advocates
o Dealing with matters of procedure
o Record advice given orally (consult)
o Engaging in counselling process

 Junior attorneys:
 Reporting to seniors
 Inform & recommend course of action
 FORMAT OF MEMORANDUM

START: Same as letter of advice

BODY: Set out facts in more detail

Explain how problem arose
Legal principle relevant to problem

ARGUMENT: Analyse facts & law in detail (opinion)

“What can client do?”
“What should client do?”

CONCLUSION: 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 OPINION
Subjective approach Objective approach
Argues client’s case, whether Informs client what he really
believe in it or not thinks of case
Litigation Advice
OPINIONS…STYLE
ADVISORY – 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)
FRAMEWORK OF
OPINIONS
1. INTRODUCTION

2. DISCUSSION OF FACTS

3. ISSUE

4. ANALYSIS OF LEGAL PRINCIPLES

INVOLVED

5. CONCLUSION / OPINION
 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 argument
Is conclusion justified by facts, law, argument?

REREAD
Have 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 research skills

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
THE END