Formal correspondence to a client to communicate a legal opinion, advice, confirm next steps, report action, or concluding the solicitor-client relationship.
Client.
Oftentimes, a client needs detailed information about their legal matter and options before they can provide instructions. For you, this is important for successful client management. When a client can make informed decisions about the course of action for their issue(s), they take more ownership in the outcome. Your opinion letter will contain just that, your opinion. However, your job is to lay out your opinion about their standing in the matter, the applicable law that supports that opinion and the options about how to proceed. A well-written and researched opinion letter can greatly assist you once you are acting for the client as much of the initial leg-work is done and prepared in a coherent manner. Taking the time at the front end of the file can greatly assist you once the file moves to the next stage of representation
Elements of an Opinion Letter
The structure of an opinion letter can vary based on preference but they all contain the following similar elements:
the facts;
the applicable legal analysis; and
the options.
Each element is an opportunity to assess the strength of a client’s case, any shortcomings to deal with, and ensure the client is fully apprised of these strengths and weaknesses moving forward.
The Facts
This element allows you to provide a detailed re-telling of the facts as you were told by the client. This is the client’s chance to correct you about any misapprehension of the case at an early stage. The facts section also allows you to review the facts you were told by the client and determine if there are any gaps in the information you were told. It is important to note in the facts what documents you do or do not have, and any gaps in information. You may also have to make certain assumptions but you must highlight any assumptions as distinct from the facts.
Writing the facts in the form of a list allows you to categorize the facts in a couple of ways. First, you can organize the facts chronologically as events happened. This is the simplest way for many of us to understand events. The second way you can organize facts is by subject matter. Often, you will find you use both categorizations along with sub-lists. As you will see in the sample letter, the facts progress through the relationship but facts specific to a person or asset become sub-lists, making the first level the chronological point, with sub-lists as the pertinent subject matter associated with the chronological point.
The Applicable Legal Analysis
Using the facts your client provided, you then make an assessment of whether their facts support possible findings in law that are relevant to them. Generally, clients only want to know what is applicable to their unique situation. However, you may find that you need to set up the law that is applicable to them and what it means. This will allow them to understand why you think they will or will not succeed on a point of law. When writing for clients, point first writing helps in telling your client what you think their legal position is, followed by the law that supports your reasoning.
This element requires legal research based on what your client has told you so it is imperative to ensure the client understands that if they have not given you accurate facts, your opinion cannot be considered accurate either. This may require you to qualify the results of your analysis as a possibility pending further information. You may also refuse to provide an opinion on a legal issue due to a lack of relevant information. You could do more harm to your client’s case in coming to misinformed conclusions than simply telling them you cannot answer this question without more information or documents.
The Options
Clients pay the most attention to the options section, as they want you to tell them what to do. It may be simpler to tell a client what to do but it is they who instruct us and so the options must reflect the pros and cons, what our recommendation is, and that ultimately, it is their choice on how to proceed.
There are typically three main options on how to proceed on a contested file, whether that be family, estate litigation, or breach of contract. Those options are:
take no action;
negotiate; or
litigate.
For each of these options, you must take into account your client as a person, what their goals in the matter are, the other side as a person, and the financial position of both parties. You should consider how each option could impact your client (whether emotionally, financially, or length of the process), the likelihood of a successful outcome with that option, the cost of the option, and does the option align with the outcome sought by your client.
When outlining the options, you should always include the pros and cons and whether you think the option may be worth pursuing. At the end of the options, you may choose to give your recommendation considering all the above. Recall, however, that you want the client to make the final decision but they are coming to you for what you think may be best for their specific situations. In this element, a recommended course of action, not so much an explicit opinion, may be helpful for the client to give you well-reasoned instructions.
