Wednesday, 3 February 2016

Opinion writing; A walk in the woods

Opinion writing. Most of my students seem to hate it. It seems to be the "most feared" of the BPTC skills subjects. 

Opinion writing is a tricky skill. The reason for it is that it is, in reality, more than one skill. It is a combination of:
  • Legal research (identifying the relevant statutes, SIs and case law)
  • Understanding the law (reading, decoding and assimilating the principles from your research)
  • Case analysis (applying the law)
  • Procedural awareness (applying the relevant pre-action or litigation procedure)
  • Case tactics (using the law and the procedure to help your client achieve his/her objectives)
  • Writing skills (writing the opinion in an intelligible, logical, clear way which helps the client solve his/her problem)

When we set an opinion, we give you a set of papers where we already know the law, we ensured that the facts and evidence pointed to a particular answer and we knew in advance what we wanted our candidates to write.

Why have we done this? To ensure we can trust and be confident that when you are in practice, you have a logical and methodical way of approaching any case you deal with. So that you know, without guidance, how to reach the answer. Give a man a fish, it is said, and he eats for a day; teach a man to fish and he eats for life. We’re teaching you how to fish, dudes!

Perhaps I can illustrate better with the analogy of being let loose in the woods.
The forest is a scary place. All the trees look the same, they block your view, it becomes disorientating and you can get lost very quickly. Walking for ages only to return to your start point is a real danger.

Imagine the task of writing an opinion as being released at the “start” point of the diagram, and being required to get to the end of the diagram, marked home. The path is strewn with trees, your obstacles to success and a pass mark.
Hansel and Gretel nearly got lost in the woods. Except they had a plan. They left themselves a trail to follow. A trail of breadcrumbs. They followed their trail to find their way home and lived happily every after.

We have left you with breadcrumbs. The crumbs are the legal principles, combined with the facts and the evidence. These are your CLUES. Once you have picked up a legal principle, we want you to apply it to the facts. Then we want you to think about who has the burden of proof, to assess the current evidence and decide if your client can succeed or whether more work is needed. If there is a conflict of evidence, we want you to assess how the court will interpret the evidence and what finding of fact will be made.

The breadcrumb trail represents the most efficient path through the woods. In other words, the best way to deal with the client's legal problem. 

When it comes to dealing with an opinion, we have students who fall into certain tribes.

They are:

  • The “Bypass” student
  • The “MIA” student
  • The “Confused” student
  • The “Smart” student

Which of these are you?

The “Bypass” student

The Bypass student can’t be bothered with writing a fully reasoned opinion. This student never fears getting sued for giving the wrong advice. Or that s/he can’t demonstrate why they reached a certain view if things go wrong later in the case. Why bother jumping through the hoops of giving reasons for their view?

Bypass student makes it through the woods. But we don’t know if they did so on their own steam, whether someone helped them get there, or whether they just checked into a hotel overnight and got to home via a black cab without ever entering the woods.

Bypass student is impulsive. Bypass student rushes to an answer without considering all the circumstances.

Bypass student is a professional negligence case waiting to happen.

The MIA student

The MIA student cannot commit to an opinion. The client “may” or “might” succeed. Or “unless I have further evidence I cannot advise”.

MIA student gets lost in the wood and never makes it home, because this student cannot form a view. This student cannot reach a conclusion on the issues. MIA student either couches the prospects of success in vague terms because s/he doesn’t want to actually tell the client if it is worth proceeding with a case, or seeks to hide behind a “lack of evidence” to avoid coming to a view at all.

MIA will find themselves cold and hungry by nightfall. Let us just hope there are no wolves in the woods, right?

The Confused student

Somehow, by hook or by crook, the Confused student makes it out of the woods. The path taken lacks any kind of logic. The expenditure of energy has been entirely inefficient. 

The Confused student may have wandered around in circles or double-backed on him/herself…

Yes, this student made it home. But did Confused student make it home using luck or judgment? We can't tell. And it may even be that Confused student can't explain how s/he made it home. 

How can you be let loose on the public if you get the right answer by luck? We have to know your skills of analysis and judgment are properly tuned.

Confused student, sorry, but you’re just not ready yet.

The Smart student

The Smart student begins with a clear understanding of the law. Everything begins with understanding the legal principles and knowing how to identify the issues in a set of papers.

The Smart student spends time reading the papers, analysing the case, planning an opinion and then writing. The Smart student understands the “legal framework” concept described in Chapter 19 of the Case Preparation and Opinion Writing Manual (“the Manual”) and applies that system as set out in Chapter 21 of the Manual.

The Smart student follows the breadcrumbs, collecting them one by one and showing how s/he has collected them in the written opinion. The opinion has the right conclusions because it uses the clues to come to those conclusions. It has cogent reasoning because it explains how the breadcrumb trail has been followed.

The Smart student can be trusted when in practice to follow a logical analysis of any case thrown at him/her. The Smart student has thought of the tactics and practicalities of procedure, proof, litigation process and how the client’s objectives might best be achieved.
No wonder it is this student who scores.

Decide which student you have been in the past.

Now; work out what you need to do to ensure you are the Smart student in the exam.

The breadcrumbs are there. They are just waiting for you to follow their trail.