writing legal opinions and corporate resolutions

8/3/2019 Writing Legal Opinions and Corporate Resolutions

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The Plain English Approach

to Writing Legal Opinions


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Legal opinion or Opinion Letter

An opinion of law consisting of writtenadvice provided to a client, who may

choose how to act after considering theadvice.


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Writing Good Legal OpinionsBryan A. Garner, The Red Book: A Manual on Legal Style, p. 299 (2002)

An opinion letter should openwith a

summary of the issue and your

conclusionsThe opening should set forthevery assumption on which the opinion isbased, the basic facts (woven into theissue), and the conclusion (with a briefstatement of its basis).


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Then, after the summary, a fullstatement of facts may appear. Some

opinions do not require a lengthy factsection; others, such aspatent

infringement or insurance coverage, dorequire one.


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 299(2002)

The body [then] explains what legal

principles apply, where they are derived

from, and how they apply to the facts.The conclusion then restates the main

findings, preferably in a slightly differentform (do not simply repeat the summary).


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Outline of a Legal Opinion

Issue Presented

Answer or Opinion;

Assumptions on which the Opinion is Based; Statement of Facts;

Legal Analysis:

What legal principles apply;

Where they derive from; and

How they apply to the facts.

Conclusion.


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Bryan A. Garner, The Red Book: A Manual on Legal Style (2002)

Clients who seek opinions want to know what theirrights and liabilities are and what the possible legalconsequences are in a given situation. Avoid meanderingbefore giving an answer[A]n opinion letter should not

resemble a treatise or law-review article. Focus on the

specific facts presented and the particular legal issue towhich they give rise, with a full assessment of the controllinglegal principles. State your conclusions and advice as clearlyas possible. Avoid giving a broad answer that could beapplied to a different question or to the same question butwith significantly different facts. Use plain English. If you uselegal terms that the client may not know, explain them.


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Common Faults

(1) Non-responsive opinion.

(2) Template-driven opinion.

(3) Jumping to conclusions.


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Bryan A. Garner, The Red Book: A Manual on Legal Style (2002)

An opinion letter is ineffective if it does notboth pose a clear issue and answer it. Not everyissue has a firm yes-or-no answer, but an

unambiguous conclusion should be stated withonly specific and necessary qualifications orreservationsReaching an unnecessarilytentative conclusion, hedged with generalreservations and qualifications, wont give theclient an answer that he or she can understand orany confidence in your advice.


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Example of a Good Legal OpinionBryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[1] You have asked the firm to review the

performance of your prior counsel, W & P, in

representing your company, Biltmore Corporation,

concerning title issues over Lot 2 (commonly

known as Parcel 3) and the actions of USM Title

Company.


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p.303 (2002)

[2] Specifically, you have asked whether any of W & Ps

advice fell below the standard of care expected of legal

professionals and, if so, whether Biltmore can now sue W &

P for legal malpractice. In brief, we conclude that (1) at leastsome of W & Ps advice fell below the level of skill and

diligence that other members of the legal profession

possess and would use in a similar situation, but (2) an

action based on malpractice would probably fail because

Biltmore will have great difficulty proving that is has incurredactual damages.


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[3] Of course, in discussing the actions and the

advice of W & P, we have the benefit of examining the

actions of W & P in hindsight. We have attempted to form

our opinion on W & Ps action and advice without makingunfair use of the perspective of hindsight. Moreover, a

detailed knowledge of the totality of the communications

between the individuals at W & P and those at Biltmore

might change the facts and assumptions on which thisletter is based.


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[4] Although in many respects W & P did

provide the advice that we believe would have

been appropriate to the situation, most of thematters on which we differ with W & P are those

where competent lawyers could disagree.


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

[5] Yet in one particular area, we believe that W & P failed

to exercise the level of skill and diligence that other members of

the legal profession possess and would use in a similar

situation. Specifically, we believe that W & Ps advice to

Biltmore at the time of the settlement agreement between

Biltmore and USM Title was deficient. This conclusion is based

on our understanding that W & P failed to discuss with Biltmore

the potential scope of the release that Biltmore was to sign and

failed to take the necessary steps to identify other claims thatmight have existed against USM Title claims that appear to

have been released under the language of the agreement.


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x x x

[6] Based on the information we have received,

we find fault with the actions and advice of W & P in

not fully advising Biltmore as a releasing party. But as

explained more fully below, we do not believe that W

& Ps actions give rise to a claim for legal

malpractice, since it is uncertain that all the elementsfor a malpractice claim can be shown.


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[7] A legal malpractice claim arises if (1) the

attorney has a duty to the client to use at least the level

of skill and diligence that other members of the legal

profession possess and use; (2) the attorney fails to usethe appropriate level of skill and diligence in connection

with the clients work; (3) this failure proximately causes

injury to the client; and (4) the client suffers actual loss

or damage as a result of the attorneys failure to actappropriately. [citation omitted]


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303 (2002)

x x x

[8] As discussed above, we believe that W & Phad a duty to explain to Biltmore the fact that therelease could be construed as releasing allfuture

claims against USM Title, whether or not thoseclaims had arisen. The failure of W & P to adviceBiltmore of the potential effect of the release could

arguably give rise to a claim against W & P for legalmalpractice.


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p. 303-304(2002)

[9] But to maintain a malpractice claim, the

alleged malpractice must have cause the client tosuffer actual damages: The mere breach of a

professional duty, causing only nominal damages,speculative harm, or the threat of future harm not

yet realized does not suffice to create a cause ofaction for the attorneys negligence or legal

malpractice. Xxx


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[10] Biltmore has informed us that it is notcertain whether Biltmore would have settled if ithad been informed by W & P that, by signing the

release, Biltmore would be releasing all futureclaims against USM Title. But even if Biltmore hadnot signed the release, the chance of recoveryfrom USM would be speculative at best. If no

damages were suffered by Biltmore, any claim forlegal malpractice would be likely to fail.


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Bryan A. Garner, The Red Book: A Manual on Legal Style, p.303-304 (2002)

[11] In conclusion, we do not believe that theadvice given by or the actions taken by W & P giverise to a claim by Biltmore against W & P for legalmalpractice. Although W & P failed to adviceBiltmore of the potential effect of the release on anyfuture claims that Biltmore may wish to bring againstUSM Title, it is uncertain whether Biltmore hassuffered any damages as a result of W & Ps actions.

This uncertainty of actual damages would make aclaim for legal malpractice difficult to prove.


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[12] Please contact us if you have anyquestions about the matter here discussed,

or any other issues.Very truly yours,

writing legal opinions and corporate resolutions

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