HOW TO WRITE A LEGAL OPINION_menulis legal opinion.ppt

HOW TO WRITE A LEGAL OPINION_menulis legal opinion

1. HOW TO WRITE A HOW TO WRITE A
LEGAL OPINIONLEGAL OPINION

2. Getting startedGetting started

Identify your audienceIdentify your audience

An opinion that is written for a client will have an An opinion that is written for a client will have an
informal structure. It will be addressed to the client and informal structure. It will be addressed to the client and
contain little or no legal jargon. contain little or no legal jargon.

An opinion for Counsel, Senior Counsel or Lecturer An opinion for Counsel, Senior Counsel or Lecturer
(your opinion assignment) will have a formal structure (your opinion assignment) will have a formal structure
and contain legal terms. and contain legal terms.

Cases and statutes will be cited in full. If quoting Cases and statutes will be cited in full. If quoting
directly from a case the citation will include the page directly from a case the citation will include the page
number on which the quote is located.number on which the quote is located.

The opinion will develop both sides of the case and The opinion will develop both sides of the case and
identify any weakness you have found in your identify any weakness you have found in your
argument.argument.

3. STRUCTURESTRUCTURE

You will structure the assignment in the same You will structure the assignment in the same
manner as your would for answering a manner as your would for answering a
problem style question.problem style question.

Use IRAC (Tutorial Two)Use IRAC (Tutorial Two)

You are however expected to develop the You are however expected to develop the
answer in more depth than your would in an answer in more depth than your would in an
exam question.exam question.

It is possible you may have to do some It is possible you may have to do some
research outside the course materials in research outside the course materials in
order to give a complete answer.order to give a complete answer.

4. Opinion IntroductionOpinion Introduction

Introduction, Introduction,

Start with a statement confirming what you have been asked Start with a statement confirming what you have been asked
to do. eg “I have been asked to provide a legal opinion to do. eg “I have been asked to provide a legal opinion
regarding... “regarding... “

The introductory paragraph should contain a mini conclusion The introductory paragraph should contain a mini conclusion
or recommendation, eg “On the facts as stated, and in or recommendation, eg “On the facts as stated, and in
accordance with the current law, the Court would hold that...accordance with the current law, the Court would hold that...
(=thesis statement) (=thesis statement)

Then use IRAC:Then use IRAC:

IssueIssue

Relevant lawRelevant law

Application of law to factsApplication of law to facts

Conclusions (on the one hand... on the other hand)Conclusions (on the one hand... on the other hand)

for each legal issue identifiedfor each legal issue identified

5. A Good Opinion Includes Case A Good Opinion Includes Case
AnalysisAnalysis

In order to give a fully informed opinion In order to give a fully informed opinion
it will be necessary for your to analyse it will be necessary for your to analyse
the precedent cases rather than apply the precedent cases rather than apply
set principles as your would in an exam set principles as your would in an exam
question.question.

6. Case AnalysisCase Analysis

Case analysis is the reading of judgments to Case analysis is the reading of judgments to
deduce the principle of law for which the case deduce the principle of law for which the case
is an authorityis an authority

Questions:Questions:

are the facts similar to the material facts of the are the facts similar to the material facts of the
instant case?instant case?

what are the legal issues in the precedent case?what are the legal issues in the precedent case?

how did the Judge come to the conclusion in the how did the Judge come to the conclusion in the
precedent case (the reasons for the decision)precedent case (the reasons for the decision)

7. Case Analysis contCase Analysis cont

What was the Court?What was the Court?

Depending upon place in hierarchy, is the decision binding or Depending upon place in hierarchy, is the decision binding or
persuasive?persuasive?

Check to ensure the decision has not been overturned by a higher court.Check to ensure the decision has not been overturned by a higher court.

Has the decision been upheld by a higher court.Has the decision been upheld by a higher court.

What was the jurisdiction?What was the jurisdiction?

If not New Zealand:If not New Zealand:

is the judgment relevant, bearing in mind that the law might be quite is the judgment relevant, bearing in mind that the law might be quite
differentdifferent

it is not binding (unless a PC appeal from NZ)it is not binding (unless a PC appeal from NZ)

has it been adopted into NZ law?has it been adopted into NZ law?

Was the decision unanimous?Was the decision unanimous?

If it was not and the decision goes against your client is there If it was not and the decision goes against your client is there
anything in the dissenting judgment that could help you?anything in the dissenting judgment that could help you?

How old is the decision?How old is the decision?

If the decision goes against what you want, can it be distinguished If the decision goes against what you want, can it be distinguished
on the facts?on the facts?

Last: always ask is this judgment still good law?Last: always ask is this judgment still good law?

8. Using TextbooksUsing Textbooks

Never rely on a case unless you have read itNever rely on a case unless you have read it

The summaries is books are often wrongThe summaries is books are often wrong

The summaries in books are the opinion of the authorThe summaries in books are the opinion of the author

Textbooks are secondary materials -- they do Textbooks are secondary materials -- they do
not constitute “the law”.not constitute “the law”.

If commentary is found about a certain text If commentary is found about a certain text
within a judgment, then it is possible to place within a judgment, then it is possible to place
greater reliance on it, but it does not make it greater reliance on it, but it does not make it
law. i.e “the Court in law. i.e “the Court in ….. ….. preferred the preferred the
definition identified by …. in her article...definition identified by …. in her article...

9. GeneralGeneral

In your opinion it is not necessary to strictly follow the IRAC In your opinion it is not necessary to strictly follow the IRAC
formula but you must identify the issue, discuss the relevant formula but you must identify the issue, discuss the relevant
law, apply the law to your client’s problem and arrive at a law, apply the law to your client’s problem and arrive at a
conclusionconclusion

It is acceptable to either:It is acceptable to either:

identify and discuss the relevant law separately from its identify and discuss the relevant law separately from its
application to the material factsapplication to the material facts

oror

combine the law and its applicationcombine the law and its application

Use headings and sub-headings.Use headings and sub-headings.

Ensure that they are helpful and guide the reader to Ensure that they are helpful and guide the reader to
particular issues.particular issues.

Reference all sources and ensure accuracy with all case Reference all sources and ensure accuracy with all case
citations, statutory provisions, and other materials. citations, statutory provisions, and other materials.

Use a logical structure -- deal with issues in a logical order.Use a logical structure -- deal with issues in a logical order.