Study Unit 3 – eLearning RPK 214 A SYSTEMATIC APPROACH TO PREDICTIVE LEGAL WRITING

CLIENTS – ADVICE & COUNSELLING - Clients = foundation of lawyer’s profession - Clients: require advice & counselling - Advice & counselling = complementary but different skills - ADVICE STAGE:Objective investigator (What can I do?) - COUNSELLING STAGE:Personal advisor (What should I do?) - Counselling can only occur after an opinion has been formed

PREDICTIVE LEGAL WRITING STEP 1:COLLECT & CONSIDER FACTS STEP 3:RESEARCH LAW STEP 4:APPLY LAW TO FACTS STEP 2:IDENTIFY ISSUES & SUBISSUES STEP 5:CONCLUSION o LISTEN to client o What is the client’s problem? o What is the factual background to the problem? o Identify issue & client’s objectives o What legal principles applies to the facts? o What is the effect of those legal principles to the facts? o What are the consequences of each option? o Of all the options, which is the best one? o Why do you think so? o What should client do?

TYPES OF PREDICTIVE / ANALYTIC WRITING LEGAL ADVICE BY LETTER (To client) ADVICE BY MEMORANDUM (Inter-office) LEGAL OPINION (more formal)

1. ADVICE BY LETTER Aimed at lay client Format: subject-matter should be broken down into paragraphs, each dealing with a distinct subject: 1. Executive summary 2. Body 3. Reasoning / argument 4. Conclusion / advice

ADVICE BY LETTER 1.EXECUTIVE SUMMARY Client’s instructions / FACTSF Answer to question / problem Recommendations 2.BODY Facts Discuss question / problemI 3.REASONING / ARGUMENT Reasons for the conclusion wrt facts & law RA 4.CONCLUSION / ADVICE Conclusion / Recommendations C Advice on practical implementation

FURTHER NOTES ON ADVISE PER LETTER AIM: To give advice to lay client STYLE & CONTENT: Such that lay client is given clear understanding of options & position PLAIN LANGUAGE – even the technical part – Same approach as with letter - If adding attachments, convert into PDF, to prevent any changes to be made

2. ADVICE PER MEMORANDUM STYLE  >Formal & subtle than letters AIM  Advising corporate / institutional clients  Advocates o Dealing with matters of procedure o Record advice given orally (consult) o Engaging in counselling process  Junior attorneys: Reporting to seniors Inform & recommend course of action

FORMAT OF MEMORANDUM START: BODY: ARGUMENT: CONCLUSION: Same as letter of advice Set out facts in more detail Explain how problem arose Legal principle relevant to problem Analyse facts & law in detail (opinion) “What can client do?” “What should client do?” Firm advice & consequences of any decisions made. Practical advice on way forward

3. WRITTEN OPINIONS Traditionally  AIM: Advice by advocates Differs from ‘advocacy’ / arguments:ADVOCACYOPINION Subjective approach Objective approach Argues client’s case, whether believe in it or not Informs client what he really thinks of case LitigationAdvice

OPINIONS…STYLE ADVISORY – answers factual & legal questions NOT ACADEMIC CASE SPECIFIC – where facts change, answers change! REQUIRES CONSIDERATION OF SPECIFIC LEGAL PRINCIPLES OBJECTIVE – almost dispassionate NOT DESIGNED FOR COUNSELLING CLIENTS (counselling the client is left to the attorney)

1.INTRODUCTION 2.DISCUSSION OF FACTS 3.ISSUE 4.ANALYSIS OF LEGAL PRINCIPLES INVOLVED 5.CONCLUSION / OPINION FRAMEWORK OF OPINIONS

INTRODUCTION START WITH CLEAR STATEMENT OF QUESTION TO BE ANSWERED: “I have been asked to advise on the consultant’s prospects of success on appeal against the judgment of Mr Justice Wilson, delivered on 1 April 2007” NOT A RECITING OF FACTS!

DISCUSSION OF FACTS Facts set out Sometimes facts need to be found Not mere recital of facts: ANALYSIS of evidence! Some questions to consider: What are the basic facts? What are the inferences to be drawn from facts? Are there some doubtful facts? Is there more information available? Can the crucial facts be proved? What is the burden of proof?

ISSUE What does the client want? WHAT ARE THE PROBLEMS?

ANALYSIS OF LEGAL PRINCIPLES START WITH LAW! STATE PERTINENT LEGAL PRINCIPLES HOW DO THEY APPLY TO FACTS? (What is the law on the point?) END WITH FACTS! APPLY LAW TO FACTS MOST NB PART! DEMONSTRATE HOW YOU REACHED OPINION

CONCLUSION ARRIVE AT AN OPINION Process like argument Is conclusion justified by facts, law, argument? REREAD Have all facts been covered? Have all legal principles been included? YOU ARE NOT OBLIGED TO HAVE A FIRM OPINION!

IMPORTANT NOTES ON OPINION-WRITING Good opinion Good fact analysis (BB) Weight & significance of facts How would conclusion differ if facts were not as they are If facts = insufficient  express views on hypothetical basis Consider main argument AGAINST your views  deal with it Use headings & subheadings Avoid arrogant / absolute statements When citing authority, use full citation Number paragraphs! Good research skills

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