What Exactly is a Legal Opinion?
What is a legal opinion?
A legal opinion is a formal document embodying the professional judgment of the signer or signers on the matters of law treated in the document and given in response to a request for the signer’s or signers’ professional judgment.
A legal opinion is written for the purpose of giving advice to the recipient or to a third party, going beyond a mere statement of fact or information by expressing the signer’s or signers’ professional judgment, based on the signer’s or signers’ knowledge and understanding of the law and its application as it relates to the matters covered in the opinion.
Legal opinions take many forms and express the signer’s or signers’ judgment on different matters . The specific types of legal opinions that are requested most frequently include:
A legal opinion may be requested in a variety of circumstances by different types of parties and for a number of reasons. Examples include the following:
A legal opinion is not a prediction or even a promise of results when the opinion is given in the context of a request. A legal opinion does not guarantee any outcomes, nor does it provide an ironclad guarantee regarding the law, even in the context of an actual judicial ruling on the matter. Instead, a legal opinion is merely an expression of the signer’s or signers’ professional judgment on the matter requested by the recipient.
Most Important Parts of a Legal Opinion Template
A legal opinions template is a streamlined drafting tool that relies on the use of short-form procedural and factual paragraphs, a numbered list of questions presented (QP) and a series of short-form answers to each QP. The template saves time for both the opinion writer and reader, because the procedure and facts elements are standard and can be quickly located. The QPs and short answers provide a quick, at-a-glance summary of the issues presented and the writer’s analysis and conclusions.
The essential components of a legal opinions template are as follows:
Heading. The heading may include the names of the parties or simply be identified only by the type of transaction; e.g., "Transaction Opinion." Either way, the heading should include the date and signatures lines for the writer and reviewers.
Statement of Facts. A short, clear description of the relevant facts in succinct, complete paragraphs. If the statement of facts section becomes too lengthy, it may be useful to divide it into segments that correspond with the questions presented, or with the writer’s analysis.
Questions Presented. These should be framed as legally relevant issues that are susceptible to a "yes or no" answer, and should be answered in a short answers section, below. For example: "Is the transaction a valid and binding agreement between the parties?" It is rarely necessary to include more than one question presented for each substantive issue, although two or three for each issue are acceptable. The writer’s analysis may be combined with or separate from the short answer and conclusion sections.
Analysis. This section can be combined with or separate from the short answers and conclusions section. Each question presented is answered in a short, succinct paragraph, supporting the positive answer to the QP.
Short Answers and Conclusions. This is a summary of the prior two sections, providing a short answer to each question presented and a succinct legal conclusion for the entire opinion. If the answer to the last QP is in the negative, the conclusion section will answer whether the opinion is withheld, conditioned or modified.
How to Create a Legal Opinion in 5 Steps
The process of drafting a legal opinion template involves several important steps that can significantly enhance the quality and persuasiveness of the final product. In addition to research, developing arguments, and providing appropriate legal reasoning, a methodical approach can be beneficial in ensuring the attorney fully understands the legal analysis before finalizing the opinion.
Research is a fundamental step in creating an effective legal opinion. Numerous sources of information may be available, including past written opinions, applicable statutes or regulations, interpretations by government agencies, relevant case law, encyclopedias, dictionaries, and law reviews. A good rule of thumb is "show me the law." Another important factor is ensuring that the research includes both the client’s situation and the legal issues that are at stake. Not only is this simply good practice, such information is often needed to fully answer the client’s questions or to provide the well-rounded opinion that the client deserves.
The next essential step in drafting an effective legal opinion template is to structure the argument clearly and concisely. This typically includes an introductory statement, an explanation of the legal issues, and a conclusion, although depending on the length, such a format could also be broken down into additional sections. Each section of the opinion should begin with key legal issues and end with the final conclusion.
A critical component of a legal opinion is the reasoning by which the attorney developed their ultimate conclusion. At a minimum, the attorney should provide an analysis of the applicable sources of law, how the interpretation applies to the customer’s circumstances, and any support for their conclusions. In most situations, there are two or three solid arguments for the position taken, and addressing alternative arguments can help bolster the persuasiveness and thoroughness of the opinion.
It is of utmost importance to keep the language of the legal opinion template clear, concise, and direct. Every party that will read the opinion – from the attorney and client to the opposing counsel or jury – should be able to easily understand the well-reasoned and accurate legal interpretations that are provided. Finally, all opinions should be reviewed for accuracy and clarity.
Common Pitfalls When Writing Legal Opinions
Lack of clarity is perhaps the most common failure in any legal opinion. The goal of any opinion is ultimately effective communication, and with the added hurdle of a lay audience, there is no room for misleading ambiguity. Pathways to ambiguity can include complex sentences, ambiguous modifiers, or convoluted phrasing or word choices. Every opportunity to be clear should be taken. Research is another common pitfall of an opinion. While a real estate opinion is often drafted quickly, and with limited time for review, this is not an area where you want to skimp on research. If the issue is substantial, then your recommendation or opinion will have real value only if it is based on appropriately thorough research. If it is a condition precedent to closing a sale or mortgage financing, then it is absolutely vital that you have researched the issue like your lawyerly life depended on it. If it is merely for the benefit of some other party, then you may be able to get away with relying on the representations of the client, but even then you should check sources as appropriate. The best advice is not to skimp on research. A sub-par job will haunt you through the course of your practice. The final common pitfall of a legal opinion is bias. This can occur anywhere, from selection of the client to the characterization of the transaction. Try to identify your biases and put them aside (if at all possible) before you even begin the process of drafting an opinion. You may have to make some difficult and/or uncomfortable choices about what you want to represent and who you want to represent, but these choices can greatly affect the ultimate quality of the opinion. I recommend that if you feel you need to excuse yourself for perceived or real bias that you do so early in the process. Communicating this perception to someone else may create a false impression of any issues, or reinforce those issues that already exist.
Advantages of Using a Legal Opinion Template
The legal opinion templates serve a multitude of purposes beyond the obvious. There are some very practical benefits to using a template for drafting opinions. First, they enable the drafter to save time as the opinions often contain language that is frequently used by the firm and tend to be repetitive. The time saving factor is increasingly important given the downward pressure on fees. Second, they force consistency in the style, language, treatments and disclaimers. This is necessary particularly when a firm is drafting opinions for use throughout a group and the opinions should all contain the same basic caveats and disclaimers . Third, consistency of opinions across a firm aids in the uniform application of the law and reduces the risk of differing opinions and results from different lawyers in a firm, particularly more horizontal firms where partners work on the same deal and swap clients.
The value of the template form is that it provides a uniform and cost efficient basis for attorneys to tailor their opinions to fit specific circumstances, while also conforming to the norms of their practice group and the expectations of the clients. They can also be helpful in connection with law firm mergers and integrations.
Personalizing a Legal Opinion Template
The first step to customizing an opinion template is to assess what customizations would apply and how they would affect the wording of the template. Examples of considerations include the following: The next step is to begin inserting specific language into the template-typically after each numbered paragraph in the template. In some instances, specific language may be inserted before or after a textual paragraph in the template. Generally, the reasons for the customizations should be included in an introductory paragraph preceding the opinion paragraph or in a letter of instruction that precedes the opinion template. Opinions are often given under the laws of one jurisdiction or another. The legal opinion will often state the fact that the opinion must be governed by the same laws of the same jurisdiction where the recipient is entitled to enforce the legal opinion. But the customization of the opinion template must remain open enough to accommodate opinions in numerous jurisdictions. Accordingly, the opinion template should either be drafted to be broad on jurisdictional issues or have a section where specific reference to a particular jurisdiction can be inserted.
Legal Opinion Templates by Jurisdiction
As noted above, it is important to consider local legal requirements in the jurisdiction in which the legal opinion letter is being delivered. Template forms of legal opinions vary to a great extent from jurisdiction to jurisdiction depending on the subject of the opinion, the local style, and also the legal environment in which the opinion is given. For example:
• Tax opinions deal with many issues not present under Colorado law, such as changes to tax laws after a particular cutoff date, effects of possible amendments to the tax code, the indeterminate nature of net income (profit) where there is depreciation or deductions, state and local government taxation of industry, a rational business purpose requirement and anti-kickback laws.
• Opinions in Pennsylvania require the use of "suitable means" as compared with the "reasonable reliance" standard that is more common.
• Some states (Massachusetts, for example) omit the last sentence of the third-to-last paragraph in the ABA Form Opinion. Others (including Colorado) prefer to drop from the ABA Form Opinion any reference to common law duties or obligations and replace them with references to statutory or regulatory requirements.
• Affordable Care Act opinions require more specific attention to the particular legislation, regulations, and violations, if any.
• There may be a requirement in some states to state the name of the attorney who is giving the opinion.
• An opinion in a bankruptcy context might need to consider preferences, fraudulent conveyances, equitable subordination or similar matters.
• Medicaid opinions require the lawyer to inquire into the relevant facts and document the inquiry.
• New York and Illinois have unique rules for real estate opinions.
• California opinions must particularly meet statutory requirements for opinions on title.
• Oregon has unique statutory requirements for opinions.
It is therefore critical to learn about, understand and incorporate, where necessary, the legal requirements of the jurisdiction in which the opinion is delivered into the template form of the opinion.
Useful and Reputable Sites for Legal Opinion Template Development
The resources necessary to develop legal opinion templates will vary widely depending on whether you expect to be writing from a common set of rules (such as a set of revised Uniform Commercial Code provisions) or your firm’s typical practice rules and procedures. Here are some key sources you might consider:
Books
Your own past opinion letters. This will likely be your best starting point. Your past practice – the way you normally identify clients, the time period and the matter, the issues and identity of addressees – will be a much better starting point than a book or article.
Your state bar’s website. Many bar organizations have templates for many types of common documents, such as pleadings, motions, etc.
ILTA or ABA website. If you are a member of ILTA or the ABA, those organizations have a wide variety of useful legal tools.
Legal Software
Your law firm’s practice management software. Experienced law firms that have embraced practice management software have probably already incorporated standard templates for frequent types of documents . Your firm should be a likely source of opinion letter templates.
Legal database software. Programs such as Fastcase and others may offer templates, though not as comprehensive as legal practice management software.
Internet
Legal writing websites. There are a few legal writing websites, such as Legal Writing Pro, that have a variety of templates available. Some of these may be available for free, but many will be paid templates.
Lexis/Nexis’s And.2nd. This is a guide to many common legal writing forms and templates that dates back to around 1953. It is obviously quite dated and may contain errors, but it is a good starting place.
Practice guides. There are literally hundreds of practice guides available online which provide templates for many forms of legal writing, including legal opinions.
Law school library.
Research Guides
Your law school library’s research department. Law schools often maintain a useful research guide on legal writing.