OPINION WRITING

GUIDELINE

An opinion must set out the questions on which it is sought very clearly and unambiguously.

A lawyer must identify the issues that are material and the relief the client wants and then
frame them as questions.

Thereafter, state the facts in a manner which brings out the materials that will become
material for answering clients’ questions, with a “yes” or a “no”.

This opinion must not refer to any fact that has not been supplied. It ought to include any
presumption or natural inference you have made from the facts, for the purpose of the
opinion.

You must state that this is your presumption or inference.

After the facts are over, you may begin your analysis, on which the opinion depends.

An easy way of analysing is to first set out the law and the provisions of the law (or laws)
that are applicable. Then you go on to summarise the binding precedents (judgments of the
Supreme Court and the High Court exercising jurisdiction over the subject matter) with full
citations.

Your legal opinion will appear from the extracts of the judgments that you have quoted.

In the analysis you may also point out the conditions which have to exist for the answer to
the queries to be positive or negative which will advise the client as to what steps he ought
to have taken so that he can correct himself in the future in similar matters.

Then you will indicate in brief that according to the law applicable to the facts, where the
client stands in South African law.

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Numbering the paragraphs help, because in your opinion or as part of the analysis you may
have to refer to what has been written before and by referring to the paragraph number you
alleviate the need of repeating relevant points.

Try to answer with a monosyllabic “yes” or “no”, referring to the paragraph number of the
analysis and facts sections of the opinion.

Where that is impossible, keep your answers as short as possible. An example may help.

Where the client has asked “Is the transaction valid etc.?”, you can answer “Yes” or “No”,
and then add “in view of what has been said in paragraphs such and such of the Facts and
paragraph such and such of the Analysis”.

However, if the client has asked “Why is this not a valid ……? you cannot answer with “yes”
or “no” but must explain, though with reference to what has been written by you in the Facts
and Analysis sections.

Remember to use the usual disclaimers, that the opinion is based on the law as it stands on
the date when you are signing it, and is based on the facts and documents that were supplied
to you by the client.

It helps if you list the documents supplied and also that which you have consulted.
Remember to add that it is according to the best of your ability.

This will go a long way in saving you from being found guilty of professional misconduct and
also negligence in any proceeding before the provincial office of the Legal Practice Council
or for damages for malpractice, in case your opinion was wrong.

An example of a Legal Opinion format: (just one example as different practitioners

may change this to what they are comfortable to use)

The purpose of a legal opinion is to analyse and provide a substantiated solution to a legal
problem or issue. Authority and other sources should be acknowledged. A bibliography
should also be provided.

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The format is as follows:

LEGAL OPINION

To: ………………………………
From: …………………………..

Re: ……………………………..
Date: …………………………...

1. Statement of facts
2. Questions presented (question of law)
3. Short answer
4. Applicable law
5. Application of law to the facts for each issue:
 rule or authority
 application to facts
 conclusion
 weaknesses in case considered
6. Summary and recommendation
7. Bibliography

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