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How to draft a legal opinion?
Copyright infringement and practical remedies
How to draft a legal opinion?

Learning Objectives
1. Learn how to structure a legal opinion.
2. Learn about various ingredients of legal opinion and how to draft them.
3. Learn the principles for writing a legal opinion.

Learning how to draft a legal opinion is essential for every lawyer/budding lawyer. Like
every drafting, legal opinion drafting is also a skill that comes with practice, experience, and
guidance. In this chapter, we shall guide you through the three stages of drafting a legal
opinion. The first stages will guide you through the steps you should take before
approaching the drafting stage; the Second stage will guide you through the actual drafting
process and the format thereof; The Last stage will give you the principles and rules to
adhere to while drafting a legal opinion.

What is a legal opinion?

As per the dictionary definition, Legal opinion is an opinion from lawyers expressing legal
conclusions about and/or legal analysis of a matter which is relied on by the addressee of
the opinion. The main purposes of a legal opinion are: to inform the addressee of the legal
effect of a matter; to give clarity about the applicability of law; to identify legal risks that the
addressee should consider further and evaluate.

In other words, a legal opinion is a formal written communication from the lawyer to the
client or colleague that contains the reasoned opinion on relevant legal issues as required
by the addressee.

First Stage: Steps before drafting

Receiving instructions from the client:

This is the first step and the foundation of legal opinion drafting. Here, you will receive the
information/facts/query from the addressee. It can be through email or oral
communication, depending on the addressee. However, it is advised to get all the relevant
information in writing from the addressee but there’s no hard and fast rule.

If there is a gap in the information from the addressee, assist them to unravel their
thoughts and situation by asking or providing them sets of questions. Following are the set
of questions you can provide the addressee with to understand all the material facts for
opinion drafting:

a) What does the addressee want?

b) Background of the situation.
c) Relevant documents such as agreements, deeds etc.

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Note: These questions are not exhaustive. Just remember our aim is to receive all the
material information from the addressee which even he sometimes isn’t aware is relevant
to the matter at hand.

Absorb and organise

After receiving all the material and relevant information, the next step is to absorb and
organise that. To do that first, make a chronology of facts and dates. Second, make notes of
people involved, items involved etc. Third, make notes dealing with any figures provided
and Lastly, identify and note gaps in the information provided and communicate to the
addressee to provide the same. After completing the above steps, the end result should
have a final draft of the background for you to read and comprehend.

Answer the primary questions

You have the background and the relevant documents in one place. Now before you begin
researching all the laws, regulations, and precedents, STOP YOURSELF and ask yourself one
primary question. What does my Addressee want to know? Your addressee may want to
know the applicability of law or implication of law. Just be very specific while you answer. If
the addressee wants to know the price of an apple. You can’t answer him how the apple is
grown or what are the different types of apples thus, be specific.

Research
Research is of the utmost importance here. One could begin with researching the relevant
laws and the provisions which would govern the facts and circumstances of the case. Then,
one could research cases that might be dealing with similar queries/issues and serve as a
good precedent. This theory, however, might not work in many cases since often there will
be some or other difference in the cases which have been previously decided and the query
at hand. However, the principle in the judgement can be applied. Remember, higher the
court, the more value of the decision as precedent. Once you are done with the research, it
is at your hand to apply your understanding to answer the addressee’s query based on the
research.

Outline your legal opinion

Following is an example of how you can outline your legal opinion:

Date:
To:

Reference:

Heading

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Strictly Confidential

1. Purpose

2. Background

3. Issues

4. Opinions

5. Conclusion

6. Summary

7. Scope and Limitation/ Disclaimer

Contents of a legal opinion:

a. Background: State the relevant facts for the background. Facts must set out the
question on which the opinion is sought very clearly and unambiguously. State those
facts that are supplied and relevant to the opinion but also include any natural
inference you have made from the facts. To mitigate your liability, use as per the
information received or inference made based on the information received while
writing the background as a disclaimer. It helps if you list the documents supplied and
also that which you have consulted.

b. Issue: Mention all the query/issues from the side of the addressee. If the issue is
broad, divide them into sub-issues and answer them individually and specifically.

c. Opinion: General rule of thumb while writing the opinion is, first address all the
queries individually and specifically and then, do the risk assessment, mitigation and
give a way forward to the addressee. Set out the law and the provisions of the law (or
laws) that are applicable in a basic manner for the understanding of the addressee.
Then summarize the binding precedents (judgments of the Supreme Court and the
High Court of the State exercising jurisdiction over the subject matter) with full
citations in the footnotes. Try to answer with a monosyllabic “yes” or “no”, with a brief
explanation citing laws and precedents while writing the opinion and where that is
impossible, keep your answers as short as possible and also, avoid using should or
shall while giving out the opinion.

d. Conclusion: Give a brief conclusion giving out the possible way forward to the
addressee.

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e. Summary: It is advisable to keep the opinion short and precise but in case, the
opinion reaches more than 5 (five) pages or as per your choice, summarise it because
unlike lawyers who read 100 pages every day, your addressee may not be a huge fan
of it.

f. Disclaimer: Disclaimers are important to mitigate your liability. Usual disclaimer such
as the opinion is based on the law as it stands on the date when you are signing it and
is based on the facts and documents that were supplied to you by the addressee.
Also, remember to add that it is according to the best of your ability.

Some dos and don’ts of legal opinion drafting:

Following are some principles and do’s and don’ts to guide you while drafting an opinion.

a) The opinion must clearly reflect the context and who it is written to.
b) The opinion should be in writing in proper grammar, in a clear, plain and precise
manner. You can use apps like Grammarly for this.
c) The opinion should be free of legal jargons, legal maxims, and Latin words. It’s
important to know your audience before drafting an opinion.
d) Each individual opinion should be dealt with separately. Try to use headings and
subheadings to make the opinion easy to read.
e) An opinion should show an appropriate understanding of the client’s problem and
should present the addressee’s case reasonably, not with false optimism.
f) The opinion should end with a clear conclusion.
g) The opinion should be realistic, not academic.
h) As a matter of good practice, if the opinion is more than 5(five) pages, give a summary
at the end for the addressee’s ease.
i) While stating facts, try using ‘I understand’ or ‘As per the information received by the
addressee’ to mitigate your own liability.
j) The opinion should have relevant statutory sections and case law referred. As a
matter of good practice, instead of pasting the entire section or the case law in the
opinion, explain the relevant part in a basic manner and put the section and case in
the footnote.
k) Don’t be ambiguous. Give a straight answer in form of yes and no with an explanation.
l) Don’t use ‘Should’ while giving an opinion. Instead, use ‘May’ to mitigate your own
liability.
m) Most importantly, give a disclaimer such as the opinion is based on the law as it
stands on the date when you are signing it, and is based on the facts and documents
that were supplied to you by the addressee, and it is according to the best of your
ability. If you are practising as an advocate on record, this will go a long way in saving
you from being found guilty of professional misconduct and also negligent in any
proceeding before the Bar Council or for damages for malpractice, in case your
opinion was wrong.

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How to draft a legal opinion?

Recap:
1. Legal opinion is a formal written communication from the lawyer to the client or
colleague that contains the reasoned opinion on relevant legal issues as required by
the addressee.
2. Legal opinion has three main components; background, issue/query and opinion.
3. Legal opinion should end with a conclusion, summary, and a disclaimer to mitigate
your liability.
4. Legal opinion should be brief, specific and in plain language.
5. While referring and quoting the relevant law(laws) and precedents, use basic language
to include them with the context of the situation instead of pasting them directly.

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