Tuesday, 31 January 2017

Opinion writing – Exam preparation

The opinion writing exam is drawing near and the nerves are building. There are a great many things you can do to help yourself, so I hope to home in on some practical and achievable steps which will help point you in the right direction.

Many students do not actually read the Case Preparation and Opinion Writing manual. This could be because they are not referred to much in classes (either SGS or LGS). This is because we are meant to focus on practitioner’s texts and not the manuals, rather than because the manual itself is unhelpful. Also, if former students have suggested to you that the manual is not worth reading, you may want to ask yourself what you might actually lose from spending some time reading some particularly appropriate chapters and paragraphs.

My suggestion to you is that there are several chapters which are essential preparation for the exam which need your attention.

Opinion writing is a composite skill. It is made up of:

-Legal research: looking up, reading from, making notes about and UNDERSTANDING the relevant areas of law. Simply printing or photocopying materials will not be enough.

-Case analysis and case preparation: reading your case papers, discerning which side you are on, working out whether you are likely to be claiming or defending, working out the cause of action, determining the facts relevant to make out each cause of action, proving (with evidence) the elements of the cause of action (or the defence), measuring the prospects of success and the remedy (or exposure to loss).

-Recording the above in documentary form by writing a cogent opinion which is a practical, problem solving document which considers litigation realities, burden of proof, funding (and costs) which states conclusions wherever possible, based on reasoning rooted in facts, law and evidence. 

For case analysis:

Please begin by reading the following chapters of the Case Preparation and Opinion Writing manual:
Chapter 10 - Overview of a Civil case
Chapter 12 - The Fact Management process (this will actually help you with all of your skills subjects)
Chapter 13 Presentation for the Practitioners (the CAP approach in action) [again - will help with all of the skills]

This is the “Opinion Forming” process – where you form the views which you will eventually record in the opinion.

Next comes the skill of opinion writing itself, because you do not simply set out your analysis process in writing. Please read:

Chapter 19 - Opinion Writing - IGNORE THIS AT YOUR PERIL!  

Chapter 21 - Getting Started - Read and even if you have already read it before, re-read it!

Suzanne Reece's book "10 Reasons You Didn't Write An Outstanding Opinion" is also a valuable and helpful read.

Why don’t you simply set out your thinking process? Because not all of your thinking will be relevant or important.

If a matter is not disputed, then you do not need to spend time considering how difficult it is to prove. For example, it is often undisputed that a contract existed or that a duty of care was owed. What is important is whether either were breached.

Once you have done that reading we come to a question I often get asked by students:

“Is there a secret to good opinion writing?”

Of course there is! But, to disappoint you all, it isn't a quick fix. The secret involves thinking like a lawyer. The secret definitely isn't copying suggested answers given to you at Bar School.

Think about it - if opinion writing was about quick fixes and copying suggested answers, why on earth would a solicitor pay you good money to write an opinion for them? They're qualified lawyers themselves! They have some idea of how to assess the merits of the case. They have procedural knowledge. They know about evidence and proof. They need your advice as Counsel are the specialists about how matters are handled and heard in court. That’s why they are asking you. Don’t assume any lack of knowledge or experience - and don't ever assume they are stupid.

The secret is... well, it isn't a single secret thing.  
You need to have a real understanding of the areas of law you are asked to research. Do your research, print up some legal resources, make some bullet point notes. Make sure you understand the law properly, before you think about anything else.

You need to have a good awareness of civil procedure (at CLS the opinion is a civil one). Pre-action procedure or post-issue procedure could be equally relevant. How well do you understand your civil procedure. In particular – pre-action conduct, limitation, commencing proceedings, responding and defending, Part 36.

You need to understand litigation tactics. When to sue, who to sue, how limitation affects your decisions, requests for further information, defending, how to stay for ADR, appropriate methods of ADR, use of part 36.

THEN - you have to make sure you carry out careful, methodical case analysis. (See below).

THEN - you have to plan the structure and content of your opinion. (Writing without a plan results in unstructured, rambling, unfocussed, directionless writing).

ONLY THEN - can you start writing. (But make sure you leave yourself enough time for the task!)

But what makes a good opinion?

You should realise by now it is not an essay. Not an academic discussion of the legal issues.

At degree or GDL level you can easily write “on the one hand this… on the other hand that…”. But it will not work for opinion writing.

This is because that sort of fence sitting, theoretical writing is not helpful for resolving your client’s legal problem. You are not being instructed to demonstrate your knowledge of the law.

Solving the problems of the client is the MOST important thing an opinion must achieve.

Should the client sue (or defend)?

-What are the realistic chances of success?

-How can the chances of success be improved by obtaining evidence?

-Which issues need greater investigation?

-What stage of the proceedings are we at?

-What comes next?

-Are any time limits looming around the corner?

-What will we get, if we win?

-Is it worth the time, money and heartache?

(Of course, none of these questions can be answered by sitting on the fence - or by copying from a suggested answer.)

NEVER tell the client what you think they want to hear. (Always be realistic, and support your opinion with reasoning based on facts, legal principle and evidence.)

Remember: if you tell them to sue, if you tell them they will win, if you say they'll recover lots of money, they will love you when they first read your opinion. When it goes wrong, whatever the reason, they will blame YOU.

When you advise a client to litigate, you are asking them to stake their money and take a risk on something they have no knowledge or understanding about.

How many of you know nothing about horseracing? Well, that's how the client feels about litigation. Would you put all your money on Fennann on today's 13:40 race at Plumpton because I told you I had a hunch it would win? No you wouldn't.

Hunches, maybes, possibilities are not going to reassure your client.

Solidly reasoned advice will.

Good luck to you all!

With very best wishes