Legal Research and Opinion Writing

Legal Research and Opinion Writing Guide 2023-24

1 © City, University of London 2023

INTRODUCTION
Opinion writing is often deemed by students to be one of the most difficult modules for BVS.
You have had many successful years of writing essays for your teachers and tutors at school
and University. You know what your tutor wants and you have honed your essay writing skill to
achieve good marks. Faced with an undergraduate/GDL assessment, you know what you are
doing and have confidence in your abilities.

However, opinion writing is NOT essay writing.

This module requires you to abandon a skill you have used effectively over many years. It will
make you feel uncomfortable. You may get annoyed with your tutor because s/he is asking you
to do something which you think is wrong. However, your tutor knows exactly what s/he is
doing. S/he will be a practitioner with many years at the Bar, who has written many opinions
in the course of practice. S/he will have also taught opinion writing to many students and s/he
knows from experience how challenging you are likely to find the acquisition of effective opinion
writing skills.

Listen to the advice and guidance that you are given. Practice the approaches your tutor shows
you. Think about the feedback you receive. Most importantly DO THE WORK! Those who
complete the exercises are generally those who get the highest marks in the final assessment.
This is not a module which you can cram during the week before the assessment. Most
importantly, do not panic. Some aspects of opinion writing will be easier for you than others.

There are no short cuts to writing an opinion. It is a skill which will develop with practice, which
includes making mistakes. This is part of the learning process. In order to have sufficient
practice you must accept that you will need to commit many hours of work before you acquire
sufficient skill.

Prior to the first Legal Research and Opinion Writing tutorial please watch and listen to two
audio presentations. These are called “How to Reach a Legal Opinion” and “How to Write a
Legal Opinion”. These explain basic principles and provide important context for your first two
sessions. You can find these in the Resources and Materials space on the Essential Reading
section of the first tutorial, Thakur Part 1.

This Guide complements the materials on Moodle and the Opinion Writing and Case
Preparation Manual. You will also be assisted by feedback on your work from your tutor. Note
that this feedback will be of limited value if your work is not thorough or incomplete.

YOUR CLIENT
When instructed as a barrister through a solicitor you have will have two clients. The person with
the legal problem in need of resolution is your lay (i.e. not legally trained) client and you would
usually refer to him/her/them as your “client”. The solicitor is your professional (i.e. legally
trained) client and is generally referred to as your “instructing solicitor(s)”, or “those instructing”.
Each of your clients needs different things from you.

Your lay client is concerned with what will happen, e.g. what are his chances of success, can he
get what he wants, how much this will cost, how long will it take, will it be worth the personal cost
in terms of stress and lost time, etc?

Your instructing solicitor is concerned with something entirely different: what is the cause of action
or nature of the defence, what law will the court apply, strengths and weaknesses in the case,
additional evidence required, and the procedural process. The solicitor is also likely to want to
know what evidence s/he needs to obtain to build the client’s case as fully as possible.
2 © City, University of London 2023
 LEGAL RESEARCH
The BSB assessment criteria for legal research are as follows:

• Accurately identify the issues

• Use appropriate methods and resources, and ensure that sources are up to date
• Cite accurately and appropriately
• Present the research trail clearly

The context of Legal Research clearly points to the issues in criterion 1 being legal issues rather
than factual ones.

What do we mean by Legal Research?

The Bar Standards Board assesses you on more than simply looking up law. “Research” has a
wider meaning than that. The extra dimensions to be aware of for Bar Vocational Studies are as
follows:

- You will research law in the practical context of a client’s problem rather than in a vacuum;

- You will be required to demonstrate the steps you took to carry out your research in a
document called a research trail;

- You will be required to identify the legal issues arising out of the law you have identified as
relevant during your research.

What is relevant law?

When there is a need to research law it is often not to identify what the relevant law is. You will
often already know what law is relevant. In the litigation context, the relevant law is the law that
governs the relationship between the parties and provides redress when one party seeks to
enforce entitlements against another.

A frequent error in identifying relevant law is to assume that the law that is current today was also
current at the time when a right of action arose. This is a potentially fatal error, because the
essence of the law is that it is dynamic. Most often we research law not to remedy our ignorance
of it, but to check its status: had a statute already been amended to its present form at the time
of a client’s problem arising? When the client’s problem arose, had the current leading case yet
become law, or did this only happen afterwards? A judge will only apply law that was in force
when a client’s grievance arose. Today’s law may be irrelevant to events that occurred four years
ago.

The interplay between Opinion Writing and Legal Research assessments

The relevant law is the law that a judge will apply either at trial or on an interim application. It is
obviously critical that it has been identified at the time of giving legal advice in a written Opinion.
Note that the four Legal Research criteria above do not refer directly to identifying it. This is
because this is tested not as part of Legal Research but under the Opinion Writing assessment
criteria at criterion 3(a). The Legal Research criteria focus on you demonstrating the steps you
took to identifying that relevant law (presenting your steps clearly in a research trail), rather than
3 © City, University of London 2023
on what law you identified as relevant. Identifying too little law or wrong law will therefore be
reflected in the marks you score for Opinion Writing, and not Legal Research.

What is meant by the term Legal Issues?

You need to know the answer to this question because your assessment criteria require you to
identify legal issues arising out of your client’s circumstances. There is a hazard here because
the term is often used in a far less specific sense than in litigation.

For civil practice the Court of Appeal describes an issue as a disputed point of law or fact which
is relied on in a claim or defence (Koiso Finance Establishment Anstalt v John Wedge, 15 Feb
1994, Unrep., Transcript 24/387). Accordingly, a legal issue is a point of law which is relied
upon by one party to a dispute, and which is disputed by the other side.

Examples of legal issues come to mind easily:

- Was there a duty or not? The Claimant relies on there being a duty, and says there was.
The Defendant says there was not.

- Did the Claimant mitigate her losses sufficiently? She relies on evidence that she did
mitigate, hoping to recover all of the damages she has claimed. The Defendant says she
did not mitigate sufficiently or even at all, so should not be awarded all that she has
claimed.

- Were the warning notices on the Defendant’s land enough in all the circumstances to
enable the Claimant (who was injured there) to be reasonably safe for the purposes of
section 2(4)(a) Occupier’s Liability Act 1954? The Claimant says no, because he relies on
evidence of inadequate notices to prove a breach of the duty imposed by the Act. The
Defendant says yes, the notices did do enough to keep the Claimant reasonably safe.

The value of the word “issue” for litigation lawyers and judges is that it is the clear “indicator” word
that distinguishes between the points that are being argued about, and the points which are not.
Lawyers and judges cannot carry out their functions unless they know the difference. It therefore
matter very much how you refer to the points arising during litigation. If proceedings are running,
the issues will be visible from the filed defence.

This is where a difficulty can arise when learning legal practice. Outside the context of the legal
professions, an “issue” might be just about anything. In everyday language, without any dispute
existing, an issue might be a problem, a challenge, a missed deadline, a loss, a threat, a
disappointment, a risk, a shortage, a phobia, or anything that attracts concern. Be aware of this
potential ambiguity so that you do not mistakenly describe what is going on between the parties
in a legal action. For example:

Here is a student speaking during a mock trial:

“Your Honour will see that an important issue in this case is the
speed of the Defendant’s car just before the collision”.

The judge will understand from this that the Claimant relies on the speed of the Defendant’s car
as part of his case, and the parties disagree about the speed at which it was travelling. The judge
will therefore prepare to consider any evidence about the car’s speed so that findings of fact can
be made about it. The judge may then ask why no witnesses have been called to give evidence

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about it (if speed is an issue, the judge will be expecting cross-examination to test that evidence).
Then, with some embarrassment, the student barrister reveals that speed is not an issue in the
litigation at all. All the parties agree that the defendant’s car was travelling at about 50mph, and
that this was too fast. If they agree that it was 50mph and they agree that this was too fast, it
cannot be an issue. If it is not an issue, what is it? It is simply agreed evidence on which the
Claimant relies.

Student counsel corrects himself. He tells the judge that the dispute is about a totally different
point: whether it was the excessive speed of the car that caused the accident. The issue for the
judge to reach a decision on is not a factual issue of speed. It is a legal issue of causation.

What went wrong there? Counsel lapsed into using a litigator’s term in an alternative non-legal,
everyday sense. What he meant to say was that the speed of the car was something that needed
careful consideration (which is true). To do so without confusing the judge, he should have said
something like this:

“Your Honour will see that there is an important issue of causation in this case, which is
whether the speed of the Defendant’s car was a cause of the accident. There is no issue
that the car was travelling at about 50mph”.

Students will have their own ways of avoiding this trap. Whatever your preferred solution, make
sure that it is operating well whenever you are asked to “identify the legal issues” in your BVS
assessment and in your practice.

How to spot a legal issue

Identifying legal issues is often very easy. Just follow these steps:

1. Remember that a claimant bears the burden of proving the legal elements of his/her case.

2. Remember that the defendant will insist that the claimant proves all or some of these legal
elements (either by denying them, or by putting the claimant to proof). Those points will
be the points upon which the claimant relies, and will therefore be the legal issues in the
litigation.

3. To identify what those legal issues are, go back to the law relied on by the claimant. Make
a list of the elements of the cause of action. These elements are what the claimant must
prove in order to win. If you are at an early stage and it is not yet known which elements
the defendant will be disputing, all of them are potential legal issues. Later on, when a
defence is filed, the formal legal issues will be visible in the defendant’s filed defence.

4. Most legal research problems that students are asked to consider arise at a stage before
the defence has been filed or even drafted. If so, in procedural terms, the formal legal
issues are not yet be defined. The object of legal research at that stage is to set out a map
of all the legal issues that could arise later. That is the stage at which legal research ends
and legal advice begins. It is the stage where you begin considering whether you can build
a case for your client on each of those potential legal issues. Unless you have identified
what the legal issues are, there will not be much useful forward-looking advice your can
give. Note therefore that during legal research it does not matter whether a legal issue is
already “live” or whether it is a potential legal issue for the future. We treat both of these
as “legal issues” for the purposes of the assessment criteria.

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How to get started on a Legal Research problem

You need a method. On the BVS course at City Law School we recommend that you follow four
simple steps which are already reflected in the paragraphs above. The four steps are:

1. Identify your client’s problem.

2. Identify search terms (“keywords”) that you can insert into electronic databases or locate
in the indexes for practitioners’ texts for the purpose of finding the relevant law.
3. Identify the relevant law using the keywords above.
4. Identify the legal issues from the relevant law.

1. Identifying your client’s problem

Won’t this be rather obvious? Often yes. For example: “The injuries caused to her by her employer
have caused a loss of earnings, and now she seeks damages to compensate her for that loss.
She cannot do this unless the relevant statutory duties are identified by legal research”. This
current lack of knowledge about the duty is a problem for the client because no progress can be
made until it is investigated. There is value in identifying this as the problelm at the beginning of
your research, even though it is obvious. First, it will remain a reminder of the kind of answers
that your client seeks and will reveal whether a remedy is sought. If this remedy is damages or
an injunction, you will know to research only civil liability. If you discover that the law only creates
criminal liability, you will not research an entitlement to damages any further because damages
are not available as a remedy for criminal offences. Second, by creating this focus, the search
terms at step 2 are likely to occur to you far more easily. It is vital to remember that your “client’s
problems” are not the same thing as the legal issues in the case.

2. Identifying Search Terms (keywords)

This is little more than a game of “word association”. In the example above, we would take
account of the kind of workplace in which the claimant was injured, and the manner in which it
happened. Did she fall? If so, the list of keywords almost builds itself: slip, trip, handrail, oil,
grease, warnings, risk, slope, hazard, walkway, ramp, Regulations, Rules, workplace,
employee…

In making your list of keywords, do it quickly. The advantage of this is that more ideas will occur
to you when there is momentum. If the task is undertaken in a ponderous, pencil-chewing way it
can be unproductive and tedious. Not all of your keywords will be individually typed into a search
field on a database, but the advantage of collecting as many as possible is that they can be
combined by using the database’s various “connectors”, e.g. “AND” or “OR” for more powerful,
targeted searches.

3. Identifying the relevant law

The Bar Standards Board requires you to use both electronic and paper sources. The reason is
obvious. While electronic databases are most people’s preference, it is lunacy to balance your
reputation on the uncertain availability of battery power or accessible power sockets.

Remember what “relevant” means:

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• Identifying your client’s problem earlier at step 1 is a critical steering step for finding what law
is relevant . As mentioned above, if your client seeks damages for her injury, you will check
that the law appearing on your screen creates civil liability. If it only creates criminal liability
(for which damages are not available) it will be of no use to her. If you were to include that
irrelevant law in your written advice, it is very unlikely that you would be sent more work by
the solicitor.

• Relevant law is the law that a judge will apply if your case goes to trial. It must therefore be
the law that was in force at the time when the dispute arose. It is very common for the sections
of a statute to come into effect at different times. Therefore, although it is common to talk
about statutes “coming into force” on a particular date (the date of Royal Assent), for practical
purposes it is sometimes more accurate to think of them being “rolled out” over time. The
implications are obvious. Never assume that the law that is current today was also the current
law at the time of the dispute. Apart from rare exceptions (so-called retroactive law), it is
impossible for the behaviour of litigants to be governed by laws that do not yet exist.

• When identifying relevant law in your research trail, it is therefore vital to record that you
checked its currency. From the above, you will appreciate that the term “current law” can
describe two different things. First, it can refer to the law that is current today. This is the law
that you will identify as relevant when the client wants to how to behave lawfully, or what
remedies will be available from litigating soon. Alternatively, “the current law” can refer to the
law that was current at the time in the past when (say) a contract was breached. That breach
will be actionable for six years, and it is perfectly possible for the law to have changed between
that time and today. If so, the relevant law will not be today’s law.

Fortunately, it is extremely easy to check whether a law is in force now, and what law was in force
at a particular time in the past. First, both the Westlaw and Lexis+ databases prominently display
whether a provision in your search is in force today or not. Second, to discover the current law at
some time in the past, you can click to view the enactment history of a statute (and individual
sections within it). Ever since before the introduction of online databases, paper and electronic
sources for this part of legal research have been called “Is it in Force?”. From the explanation
above, you will see that this snappy label does not fully reflect the task. “Is it…” implies that only
the present law is of interest when, as explained above, you will just as often need to know the
law that was in force several years ago. Simply bear in mind that “Is it in Force?” also comprises
the further question “Was it in force on the relevant dates in my instructions”.

4. Identify the Legal Issues

This has been discussed above. The reason for doing it (other than the BSB’s assessment
requirement) is that it provides you with a razor-sharp focus when you come to give written advice.
It will insulate you against irrelevant detail. Here is how to do it. Having identified the relevant law,
read it line by line. Look for obligations placed on your client or another party, elements of a cause
of action, time limits, statutory definitions, constructions of the law contained in any case law and
so on. As long as the law is relevant to the client’s problem identified in step 1, it will be relied
upon by one or more of the parties. By being relied upon, half of the definition of a legal issue is
satisfied. Any points contained in that law which are capable of being disputed are potential legal
issues. Treat them all as if they will be live legal issues when the defence has been filed. Set
them out in your assessment answers.

Choose your preferred way of expressing these legal issues. Remember that we are imagining
the parties taking opposing positions, so there are various easy formulas available. An easy one
is the “yes/no question”. Another easy one is “whether”. For example:

7 © City, University of London 2023

A legal issue expressed as a “yes/no question”

Legal issue 3: Were the Claimant’s losses too remote to be recoverable?

A legal issue expressed using “whether”

Legal issue 3: Whether the Defendant owed a duty to the Claimant.

These two formulas are recommended to you as the safest options for satisfying the assessment
criterion “accurately identity the issues”. Finally, two things not to do:

Do not add anything here about the possible answers to these “yes/no” or “whether” questions.
You will have plenty of opportunity to do this when working on the accompanying written Opinion.

Do not fall into the easy linguistic trap discussed earlier, where non-legal concepts are wrongly
dressed up as legal ones. The commonest error is to confuse step 1 (a client’s problems) with
step 4 (legal issues):

Don’t say this:

• Mr Dixon’s injuries have created various issues for him.

• The first legal issue for Mrs Singh was that there was so little evidence available.
• Not knowing the relevant law has been the main legal issue since the dispute began.
• Mr Dixon’s legal issue is that he wants to know his prospects of success in defending a
claim by Miss Taylor.

The error here is that the writer has incorrectly used the word “issues”, to describe only the
problems, circumstances, or queries that need to be addressed. This causes no difficulty in
conversations where everyone knows what everyone else means. But it may be fatal to your
prospects on assessment, because you will not clearly have identified what lies at the heart of
litigation, i.e. what a judge need to reach a decision on.

8 © City, University of London 2023

STAGES IN THE OPINION WRITING PROCESS
There are some general principles which provide a framework within which opinions are
usually written.

There are six main steps:

i) Read your Instructions and the case papers (at least once). Identify the questions you
need to answer (the explicit ones), and the questions that YOU identify are relevant to
the client’s case but the client and/or solicitor have not raised the implicit ones).

ii) Identify the relevant law from your legal research and the relevant facts from the case
papers and apply one to the other.

iii) Build your client’s case by forming conclusions based on the relevant law and facts in
answer to the questions posed in your instructions contained in the Brief to Counsel and
any other implied questions which you have identified as potential issues in the case.

iv) Plan the structure of your opinion. You need to decide the logical order of the
matters you need to address and the headings you will use to “signpost” your client
through your consideration of his case to your overall conclusion(s).

v) Write your opinion out in full. Do NOT start to write until you know the answers to the
questions you identified at (i) and your reasons for your answers.

vi) Check your work.

The following provides points you need to consider at each stage:

i) READ YOUR INSTRUCTIONS:

• Who is your client? Make sure you know who you are advising.
• What does your client want?
• What does your Instructing Solicitor suggest is the problem?
• Are there other problems they have not mentioned but are important?
• Where are you on the litigation timeline?
• What is the cause of action?
• Is there a defence to it?
• What remedies can the court grant? Can the law give your client what he wants?

ii) IDENTIFY THE RELEVANT LAW AND FACTS AND APPLY

• Identify EACH element of the cause of action. These are the points which a claimant must
prove to establish a case.
• What legal test(s) do you need to satisfy to persuade the court to agree with you?
• What remedies are available?
• What pieces of information (facts) do you have in the papers which are relevant to your
client’s case?
• Are any of the facts likely to be disputed?
• What does your client say about the facts which are not agreed?
• What will/does the other side say about the facts which are not agreed?
• What are the strong points in your client’s case?
9 © City, University of London 2023
• What are the weak points in your client’s case?
• Do you have evidence to prove what your client says what happened?
• If you do not have the evidence you need, what evidence is still required?
• Will it be possible for your solicitors to obtain that further evidence?
• Is the expense of getting this additional evidence justified and proportionate to the value of
the claim?
• Are there any procedural matters which you need to advise upon?

iii) (a) BUILD YOUR CASE

Can you satisfy the legal tests? Do you have an effective defence to the claim? Does the
evidence persuasively establish your client’s version of events? Can you persuade the court to
accept your case and find in your favour? Make sure you can explain every stage of the thought
processes which lead you to your conclusions.

Case Building Tip:

To avoid overlooking any aspects in your case building, it is sometimes helpful when learning
case-building skills to set it out in the form of a table. This is one way of ordering information
without making omissions. There is no particular format for putting together these tables, and
students will have their own preferences for how to use them to record information. One example
appears on the next page.

There are other equally effective methods which can be used for effective case building, e.g.
mind maps, spider diagrams, cross-referenced lists etc. At the very least it is necessary to identify
the elements of the cause of action; any factual disputes; the likely legal issues; any defences;
and the full range of remedies available. Whatever method you adopt, it must provide analysis of
sufficient depth and breadth. If this is not achieved you will not reach the required standard under
the legal research assessment criteria or OPW assessment criterion 3 (see the end of this
document).

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 OPW-01-2223-GUIDE

Law: What Elements: What Evidence: Gaps: Further Sources of Present strength Any Procedural
is/are the must be proved What existing What elements evidence: evidence of case on each points?
causes of to establish the evidence cannot currently What will fill the e.g. element
action? cause of action? allows C to be proved? gaps or witnesses,
prove cause strengthen the documents
of action? existing case?
Breach of Agreement Oral Further Mr Banham All strong Security for
contract Terms agreement losses Banham’s except costs
and losses Breach at D’s arising Accountancy Jones quantum of application
arising Causation office, during April report consequential on D’s
evidenced trading Hardwick losses counterclaim
Losses by later period Data on (in
arising invoice hard USA?)
drives
£41,837.33 Payment stored at Preston
plus interest by 15th office of
of each Kathy
Remoteness month Preston
Whether
losses in
Non- both
payment in parties’
October contemplati
on at time
of
contracting
Negligence Duty, All facts in Trading As above As above All strong in n/a
breach, DB’s history / tort
causation, witness reasonable
loss statement ness of
imposing
the duty
(b) FORM YOUR OPINION

Lawyers use logical reasoning in forming their opinions. The legal thought process is:

(a) Start with the law. This often involves identifying the right causes of action and / or legal
defences that apply to the client's problem.
(b) If necessary, some legal research should be conducted. Note that for BVC assessments
this will always be necessary.
(c) On the basis of your research, identify the legal elements of the cause of action etc.
(d) Take each element, one at a time.
(e) Apply the law to the facts.
(f) Assess whether the current evidence is likely to persuade the court to the required
standard of proof.
(g) Consider whether either party is likely to be able to adduce further evidence that will
influence the court's likely decision on that issue.
(h) Identify specific factual enquiries that you can advise your instructing solicitor to make.
(i) On the basis of all the evidence that is likely to be available at trial, re-assess the most
likely decision of the court on that issue.
(j) Your conclusion / answer at (i) above should be your opinion on that point.

Your case building should provide you with the information for you to be able to decide:

(1) whether the law is capable of providing your client with the remedy s/he seeks, and
(2) the likelihood of that remedy being awarded if the claim goes to trial.

This second question will depend on whether there is a defence to the claim. Clearly, whether
representing a claimant or a defendant, both the claim and defence must be considered
objectively before you can form an overall conclusion.

‘Objective consideration’ means that you have to look at your client’s case, not just from his/her
perspective, but also from the perspective of the opposing party. To be objective you need to
think, “what would I be saying if I was acting for [the opposing party]?” You must consider the
relevant legal tests, and the strengths and weaknesses of BOTH sides of the case in order to
provide your client with objective advice. Do not forget, if the case went to trial, the Judge will
ALWAYS be thinking about the case objectively.

Another important consideration in forming the opinion is the question of what your client
actually wants. The availability of a legal remedy and a good prospect of achieving it may not
necessarily lead you to advise litigation. The client’s circumstances may mean that setting off
on the road to a trial could damage their interests. Some form of Alternative Dispute Resolution
may be far preferable.

iv) PLANNING AND STRUCTURE

Typical structure for a Civil Opinion on Liability and Quantum:

• Summary of Facts
• Summary of Advice
• Paragraphs on Liability (followed by possible defences)
• Paragraphs on Quantum
• Summary of Further Evidence/Information requested (not essential but useful for your busy
instructing solicitor)
• Practical steps – what to do next (including any procedural advice)
When planning the structure of your Opinion, assume that the Instructing Solicitor is busy, under
pressure, and wants answers which are quickly absorbed and readily understood. Structure is
often the single most significant determinant of whether these are achieved. It is therefore also
critical to the question of whether you are instructed again by the same solicitor. If your structure
or self-expression unnecessarily increases the work required of the reader, that person is likely
to seek advice from someone else next time. This is where an essay-writing approach will
undermine the building of a practice.

Use sensible, short, descriptive and consistent sub-headings which are of real assistance. For
example, a heading which only says “Issues” will be too bland and unspecific, giving the reader
an insufficient steer through your discussion. Try to avoid too many sub-sub headings, as these
can make the Opinion difficult to follow. If you really feel they are necessary, make sure they
are in a font or format (inserted margins etc) which makes it clear how far down they are in the
hierarchy of your headings system. When the paragraph is only a few sentences long, do not
duplicate half of those words in a long heading; it will irritate the reader and look cumbersome
or odd. Short headings are best.

Issues must be taken in a logical sequence. Solicitors will expect you to adopt the same
sequence of legal elements that are usually addressed in the leading textbooks. When advising
on both liability and quantum, address liability before quantum.

Give each point the importance it deserves in terms of depth of discussion. To do otherwise will
result in a lop-sided Opinion which is likely to be misleading to your readers.

Use a simple 1, 2, 3, ... 45, 46 numbering system for your paragraphs. Do not use a decimal
point paragraph numbering system. Place the number against the first line of each paragraph,
and not against the headings or sub-headings.

Leave a space of one line between paragraphs to ventilate the page, and to provide space for
the reader to add annotations.

v) WRITING YOUR OPINION

An initial summary of facts must be a concise summary of only the relevant facts. Note carefully
what this means: a summary means not all the facts of the lay client’s story. Do NOT
mindlessly regurgitate your instructions. The summary of facts requires you to identify which
pieces of information are RELEVANT to the case and which you are going to use in your opinion
to answer the questions posed in your instructions.

Summarising concisely means being compact in your language so that a busy solicitor can
absorb your message efficiently and fast. Solicitors will not thank you for cutting and pasting
their instructions to you. Your client knows the facts already. The reason for setting out the
facts that are relevant is that they demonstrate the basis on which you are instructed, and its
limits. This prevents later criticism that you failed to consider relevant points which were not yet
identified at the time of advising.

Relevant facts are those which legally make a difference. The thing which makes them relevant
is the law. Only by understanding the law will you be able to recognise which facts are relevant,
e.g. the facts which raise or lower the likelihood that a duty was owed. There will often be a
multitude of facts which are of no legal significance at all. These must be omitted.

A Summary of Advice, typically following the summary of the relevant facts, should give a clear
succinct and precise answer to all the main questions raised. Some of these may be implicit in
your Instructions. Very exceptionally, in order to make sense of your summary of advice, a short
precise explanation may be necessary within that summary. However, in the vast majority of
written Opinions, explanations should NOT be provided in the summary. This enables the
solicitor to see “the answers” at busy times when only clarity and speed are needed.
Explanation and reasoning should be provided elsewhere in the body of your opinion.

Use paragraphs as the building blocks of your opinion. Each paragraph should focus upon just
one subject. The issue, point, or assertion in the paragraph should be explained and your
conclusion justified with full reasoning. Address one issue at a time, logically moving from one
to the next, paragraph by paragraph, building up to the overall conclusion you wish to make.
Avoid multiple issues in one paragraph. Providing explanations, reasoning and conclusions for
two (or more) issues in the same paragraph is extremely difficult. Needless to say, this will
also be very confusing for your client.

For liability paragraphs, you need to consider:

• The law: cause of action, defence, other legal test, etc. You may need to break the legal
test down into a paragraph (or more) to consider each element i.e. the cause of action
“stages”.
• The strengths and weaknesses of your client’s case built out of the law, the relevant facts
and the evidence available. Why have you come to those conclusions? What law/evidence
did you base your opinion on? If it is possible to “mend” any weaknesses, how will you do
that?
• Does a claimant have evidence of sufficient weight to prove their case and, if not, will it be
obtained before trial? What evidence should a defendant obtain to counter the claimant’s
case?

These points are illustrative only and this is not an exhaustive list.

For Quantum paragraphs, for each head of loss you need to consider:

• Whether that loss is recoverable under the current law

• Whether it can be proved on the evidence
• Whether you have sufficient information to calculate the value of the loss accurately or at
all
• The amount recoverable using legal principles and other applicable principles

In general, your requests for further evidence must be:

• Specific: requests for “any evidence about the accident…” is too vague. So is asking only
for “more information”. Imprecise requests for additional material does not meet the needs
of either the professional or lay clients.
• Justified by clear reasoning: this will explain what it is which will assist the solicitor, why it is
necessary and why the client should incur additional legal costs to obtain it.

Practical steps as to what should be done next by the solicitor will be the “process”
information sought by the solicitor which was referred to earlier.

vi) CHECK YOUR WORK

THIS IS NEVER TIME WASTED!

Read through your opinion carefully, check for typos and any errors of expression. Do
this by eye, line by line: do not rely on a spellchecker.

When you are in practice the presentation of your work will be your shop window. If the goods
on display are shoddy, haphazard and carelessly put together, you are unlikely to impress your
solicitor or your client. Presentational errors in practice can be fatal to receiving further work
from a particular solicitor. For this reason they are penalised in BVS assessments.

Use this final opportunity to look out for errors or omissions of content. An additional, and
possibly essential, point may well occur to you at this stage.
1. HOW TO USE LAW WHEN WRITING AN OPINION

See the Opinion Writing Manual chapter 20.

The main points to note are:

Only set out law to the extent necessary given the likely level of familiarity of your Instructing
Solicitor with the particular legal principles. In well known areas of law, like negligence and
contract, the relevant principle can usually be summarised in a few words, with no citation of
authority. Less well known legal principles that you had to research, but which are unlikely to
be controversial, should be set out succinctly (often in a single, clear sentence), followed by a
full citation of the relevant authority.

For example, the solicitor will know what is meant by “the remoteness test in Hadley v
Baxendale (1854) 9 Exch 341”. Having referred to it in this way you will apply the first and/or
second limbs of Hadley v Baxendale simply by referring to how far a judge is likely to view the
losses claimed as naturally flowing from the breach, or being in the parties’ reasonable
contemplation at the time when they were contracting. Note that this is not the approach taken
when writing essays, where principles tend to be explained first before applying them. This is
not necessary for points which involve well known/often used legal principles in opinion writing.

Occasionally there will be more complex legal principles that you need to apply. If you are
setting out law, avoid doing so “in a vacuum” so that it reads like a textbook or essay. This is
not what the client is paying you for. Remember the client wants your legal advice on their case,
and they are not really interested in a detailed discussion of what the law is. The discussion
should be sufficient only for the purpose of applying the law to the facts of your client's case.
Your client wants to know why you think it applies to his case and, most importantly for him,
what difference it will make to achieving his litigation objectives.

Give full and accurate citations of cases and statutory provisions. Emphatically do not write the
name of the case followed by only its year in brackets, as occurs in student revision guides.
This will instantly destroy any impression that you are a practising lawyer. The convention
(particularly at the Bar) is always to include the complete citation. Having done so once, the
name alone will be sufficient if it appears again. Note that the name should appear in italics but
not the year and law report, which remain un-italicised. Avoid accidentally italicising the whole
citation with one sweep of the mouse. See also paragraph 9 below.

State clearly the relevant point that the case decides in just a few lines. A common error here
is to tag on the case citation at the end of a sentence in brackets as an afterthought. This is too
unspecific.

Avoid direct quotations from judgments unless especially useful in context (and even then keep
quotations as short as possible). Where there is a very recent relevant authority, it may assist
your solicitor if you explain its effect and give a clear view on its likely impact on the present
case. This requires skill to get the point across succinctly and precisely.
2. THE HEADING

<TITLE>

OPINION

The title need only identify the person(s) you are advising and, if the case concerns litigation,
the names of other parties. This can be done by writing, for example:

RE: Richard Smith or Richard Smith v Sarah Jones

“In Re” or just “Re” for short means “in the matter of”. A formal title as is encountered on
statements of case is not required because the document is a private communication between
you and the solicitor/lay client. It is customary for the word “Opinion” to appear in tramlines as
above, to draw attention to it.

There is a somewhat unnecessary debate at the bar about calling a barrister's written opinion
an "Advice" or even a "Note". A conventional view is that barristers use "Opinion" to describe
advice on the substance of a claim, covering liability and/or remedies. "Advice" is for more
specific aspects of a case, such as procedure, evidential advice, or public funding, e.g. "Advice
on Evidence" will appear in the tramlines.

A "Note" is usually shorter, such as a summary of the main points covered in a conference, or
a short note sent with counsel's draft of a statement of case to explain perhaps a point that
needs to be clarified before the draft is finalised. Confusingly, “Notes” are also often informally
submitted to the court prior to a hearing to set out a client’s position in respect of the issues
which are to be considered at that time. These are not strictly “Notes” (in the opinion writing
sense) and are probably better described as “Position Statements”. However, conventions vary
from one practise area to another. Just be aware that a “Note” can be more than just e.g. a
record of a conference with a client. A barrister will not usually charge for a "Note" (or position
statement for that matter!).

On the BVS all the Opinions you meet will be the top of the range "Opinions" on the substance
of the claim. You use all the same skills when drafting Advices and Notes.

3. OPENING

The convention is to refer to the instructions sent to you from your professional client, and
what you have been asked to do, e.g. “I am asked to advise on…”.

Keep this part of the Opinion brief. Its only function is to acknowledge receiving the
instructions, remind the Instructing Solicitor what it is that you are advising about, and its limits.
It demonstrates that you know what you have been asked to do.
4. BACKGROUND FACTS

On the BVS aim for about half a page of A4 typed (or equivalent if handwritten).

This part of the Opinion should be three things: concise; a summary; and only contain relevant
facts. It will not reproduce every fact contained in the papers that were sent to you. You should
record here only those facts which are relevant to the cause of action or defence (i.e. those
which would support either side’s case). The significance of the facts will become clear later in
the “body” of the Opinion.

5. SUMMARY OF ADVICE

Concentrate here on the answers to questions raised by the Instructing Solicitor in your
Instructions. Typically, on the BVS these will concern liability and remedies. Remember that
some questions may not have been explicitly raised; but the fact that you are advising means
that those questions are present by implication. They are “implied” questions, which no
competent barrister would fail to address, for example the need to make an urgent application
because of a fast-approaching time limit, or the limitation period is about to expire. Your solicitor
may not have raised it expressly, but you must deal with it.

In your summary of advice:

(a) Do not include the reasons for your summarised advice at this point (these belong in the
main body of the Opinion).

(b) Do express the chances of success. If the advice will be a disappointment to the client,
use sensitivity in delivering it: “unfortunately, for the reasons that follow, Mr Slate’s
chances of success are extremely low”.

(c) If you are asked to advise on remedies, be specific about the remedies which you think
are likely e.g. distinguish between debt claims (a specific amount) and money claims in
the form of damages. It is usually helpful to summarise your advice on quantum at this
stage, but the calculations and the thinking behind them belong in the body of the Opinion.

(d) Some Opinions are requested to cover liability only. Others ask for limited advice on
remedies. Recognise the limits on what you have been asked to do and do not provide
more advice than is sought. The solicitor does not want to be given a longer document
than necessary and doing so can be interpreted as exceeding your Instructions, which
can lead to disputes over fees.

(e) Although the vast majority of litigated cases settle well before trial, trial nevertheless
remains the focus of attention during litigation. The evidential standards of the courtroom
are typically the standards for settlement too. Therefore, your advice is given with
evidence and proof in mind, even though everyone acknowledges that trial is unlikely and
undesirable. For this reason, it is common to use expressions like “In my opinion, a court
is unlikely to award Mrs Royston an order for specific performance…” even though no
decision to proceed to trial has been made. Both writer and reader understand that the
final determination by a judge is hypothetical.

(f) Detailed advice on settlement and ADR conventionally comes towards the end of an
Opinion, unless of course the main purpose of the document is to advise on that question.
6. BODY OF THE OPINION

Opinion must give practical advice point by point, each separated from the next by sensible
paragraphing.

(a) Apply the law to the facts to reach your conclusions and set out the reasoning for them.
For the purposes of scoring marks on the BVS assessment, the presence of that
reasoning is often the most significant part of the Opinion after the actual advice. It is the
clearest signal to the solicitor (and BVS examiners) that you have engaged with the
process of using the law to solve the lay client’s problem.

(b) Consider the account given by the lay client of what has happened. Compare it with all
the other available evidence. Are the two consistent? Is everything the client says
corroborated elsewhere? If there are gaps or weaknesses in that evidence, consider
whether to offer advice on how to plug those gaps, e.g. identify further questions to be
put to an existing witness, or further documents to be gathered and from what source.

(c) Where there are gaps, it is routine to make helpful suggestions as to sources of evidence.
But never suggest what that evidence should be, e.g. a particular figure on a spread
sheet, or the wording of a sentence in a witness statement. Even if done with innocent
intent, this may be perceived as “devising facts” for written evidence or as coaching the
lay client on what to say, which would be breaches of professional ethics.

(d) If information is already in a form suitable for exchange with the other side, e.g. in an
undisclosed draft witness statement, it would be appropriate, where necessary, to advise
that a signed and dated witness statement be produced. However, there will frequently
be facts which need to be added or elaborated upon. Other facts raised by your lay client
may be irrelevant, in which case your advice will be that they be removed. Reports by
experts must also be read critically for this purpose if the expert is not jointly instructed.

(e) There are many occasions when the facts are not clear and assumptions have to be
made in order to give advice. In these circumstances, state clearly what assumptions you
are making and include advice on further inquiries to clarify the facts.

(f) Avoid needless academic discussion: focus only on the needs of your professional and
lay clients and avoid the temptation to use the document as a demonstration of how much
you know.

(g) Once you have completed your Opinion, check again that it addresses all the points on
which you were instructed.

7. USING THE LAW

An Instructing Solicitor may refer a case for your opinion because they do not hold the
necessary legal knowledge, or because it is economically efficient for you to research points of
law which are technical, or which include the exercise of professional judgment on what is likely
at trial, or are developing areas of law. Often the Solicitor or client wants a second opinion
beyond the solicitor’s own. In all instances, the Instructing Solicitor will seek to rely on your
statements of the relevant law in the conduct of the lay client’s case. Thus, even if the law has
needed researching, you act in an expert capacity in communicating it.

The relevant law will often be multi-layered and require application to the facts stages. Use this
to your advantage by adopting those sequential layers of law to give your Opinion its structure.
Whether the law is complex or simple, avoid “lecturing” your Instructing Solicitor about it on the
page.
(a) Check your legal sources and the references to them: your legal knowledge must be
accurate, up-to-date and relevant.

(b) Always ensure that any law you cite is necessary for the advice required in the case. If it
is not relevant to a possible dispute with the other side, it will pointlessly clog the
document.

(c) Where the law you rely on is well known, you should not cite authority e.g. Donoghue v
Stevenson [1932] AC 562. The busy solicitor does not want to read about things s/he
already knows.

(d) Where you rely on law that is not immediately obvious, it will frequently be necessary to
cite the relevant legal authority. Where this is case law, you must give a full, accurate
citation, using the official law reports when available. The year alone is insufficient.

(e) Where an authority is repeated later in the Opinion, the parties’ names only are sufficient.
e.g. first time “Marronier v Larmer [2002] EWCA Civ 774, [2003] QB 620”, and thereafter
“Marronier”. Note that when writing Opinions there is no requirement (as there is in court)
to use the neutral citation system e.g. “[2002] EWCA Civ 774”. But many still choose to
do so. The reason for this is that commonly a barrister will want to use relevant parts of
an opinion for use in court. If the neutral citation is already in use in the opinion it can
simply be “cut and pasted” into another document without requiring further research.

(f) When summarising the legal principle contained in an authority, make sure that you do
so accurately. Do not rely on the headnote alone; find the relevant dictum from the
judgment to which you would ultimately refer in court at any future trial. Then decide if
you want to quote it (see below).

It does not follow from the above that you should frequently quote from law reports. It will
generally be sufficient simply to cite the paragraph number from the case report alongside
your précis of the point, so that the solicitor can refer to the judicial reasoning if desired. When
you do choose to quote from a reported authority, it will probably only be on occasions when
the judge’s own words provide a particularly succinct, direct answer to a question of law you
have been asked to advise upon; the quotation is then an effective way of demonstrating to
your solicitor that you have addressed their query in full depth. The need to do this will be
relatively rare, because the question will more commonly concern how a judge would apply
the law to the particular facts of your case, rather than what the law is.

When quoting from a judgment, include the name of the judge and the relevant paragraph.
Decide whether the extract is short enough to merit quoting, or whether its length means that
a summary of it by you would be more efficient. Both of these approaches are contained in
this example:

“In Marronier at [25], Lord Phillips MR stated: ‘Court procedures differ from one state to
another and the courts of this country should apply a strong presumption that the
procedures of other signatories of the Human Rights Convention are compliant with
article 6.’ However, he went on to state that the Court of Appeal cannot accept that it
must apply an irrebuttable presumption that a judgment given in another member state
cannot have resulted from a violation of article 6.”
 The reference to “[25]” in square brackets is the correct way of citing a paragraph number from
a judgment.

Avoid making novel observations – you have been asked to advise on the law as it is applied,
not on what you or another legal thinker would like it to be. If the law is genuinely unclear, the
appropriate course is to refer to a well-respected commentary (e.g. Chitty) rather than to
expound your own jurisprudence. The temptation to do so is rare in any event.

8. ENSURE THAT WHAT YOU ARE GIVING IS ADVICE

You have been asked for a professional legal opinion and you must give one. This means you
must state clearly your opinion on how the law applies to the facts of the case, insofar as they
can be proved by the evidence available to the court. If the law and the facts are clear this
should be straightforward.

However, if the law is unclear and/or you have facts which cannot at present be proved, then
you cannot be sure what the court is likely to do. In these circumstances, giving an apparently
firm opinion about a court outcome would put your lay client in danger. Instead, you should
attempt to advise on the alternative possible outcomes, i.e. according to what facts may be
proved and what view the judge may take of how to apply the law. You must then advise on
which outcome appears the most likely.

You must only make statements which are legitimately within the province of your professional
opinion. This means you should not waste time musing on paper about trite or well known law;
nor should you express disagreement with the opinion of an expert witness on something which
lies within their area of expertise but not yours. At best you can point out gaps in the expert’s
logic, as it appears on the page, and you are concerned that the court may not accept the
expert’s findings for that reason. Your advice will then be appropriate, i.e. that there is a problem
which needs to be addressed by the expert revisiting the conclusions in their report.

Ensure you:

a) Give clear advice on each point.

b) Avoid hedging your bets, otherwise no clear advice will emerge (i.e. saying “the court may
order x, but may order y”). You are being paid for your advice, not your doubts.

c) Place your advice on each point where it is easy to find within the Opinion (e.g. by means
of sub-headings) and easily understood by the reader (primarily your Instructing Solicitor).
Do not use long, rambling sentences which a tired fellow lawyer will need to read twice to
absorb.

9. CONCLUSION & NEXT STEPS

Make sure that your Conclusion does not merely duplicate the Summary of Advice that
appeared near the beginning of the Opinion. It is unacceptable to copy and paste your
Summary of Advice as a “Conclusion”. The Summary of Advice should state concisely your
answers on the main questions about (say) liability and remedies. The conclusion, by contrast,
is likely to refer back to various earlier paragraph numbers, providing reminders of your
reasoning, and suggest the best tactical approach to achieve the client’s aims. This may mean
giving up the litigation.

(a) Make sure that your Conclusion section is consistent with what has been said earlier on;
this is a common failing in students’ Opinions.

(b) Almost every Conclusion should include the Next Steps that are advisable for the lay
client or Instructing Solicitor to take to progress the case.

(c) If there are many procedural points to cover, break your conclusion up into two sections,
the Conclusion and the Next Steps.

(d) Wherever possible and proportionate, it will have been necessary to suggest practical
further inquiries into the facts and/or sources of evidence in the earlier body of the
document. It will generally be helpful to summarise these suggestions/requests in a Next
Steps list towards the end. In the exam you may well not have the time to do this, and it
is not demanded for the assessment.

(e) If there is a large amount of additional evidence to consider, introduce a separate “Further
Evidence” paragraph. Again, in the exam this is not demanded.

Requests and suggestions for further evidence must be specific with due consideration given
to the CPR. Do not make vague requests for “any” further information to be sent to you: these
are unhelpful, may lead to unnecessary expense for the lay client that may not be recovered in
costs even if that party is ultimately successful. If you have identified a point requiring evidence
it should be possible to identify exactly what that evidence should be. In most cases, the
following detail should appear in the body of your Opinion:

(i) Which witnesses should provide statements, and to which areas of fact their statements
should be addressed;

(ii) Which documents should be obtained and from whom (and, crucially, when: collecting
exhibits is often very costly and may not be necessary until later in the litigation, by which
time the dispute may have settled);

(iii) Preserving documents (including electronic documents) so they are not destroyed e.g.
under a company’s usual document management systems; and

(iv) Which issues need expert evidence, what kind of expert is required, and when is their
evidence required (see the CPR Parts 28, 29 and 35).

Points of the type identified in (i) to (iv) above should appear somewhere suitable in your
Opinion in the exam.

Unless there is a likely need for further decision-making (e.g. after further evidence has been
obtained) avoid signing off the document by proclaiming your willingness to assist further; if too
gushingly expressed this can make you sound desperate for work, which is not a good
impression to give. On the other hand, if you were asked to confine your Opinion to liability only
and your advice is that there are good chances of success, it is certainly quite reasonable to
round off the document with a reference to the need to assess quantum for the purposes of
settlement and your willingness to do so if asked.
Sign the Opinion appropriately. By convention, your name is typed in capital letters on the right,
and your handwritten signature, in pen, is written above it. The date and chambers address go
on the opposite side to the left:

COUNSEL’S SIGNATURE

<CHAMBERS ADDRESS>

<DATE OF OPINION OR ADVICE>

Do not confuse this practice with what happens at the end of your draft of a statement of case.
For statements of case you do not include the name of your chambers, and only your typed
name, in capitals, appears on the right.

By convention, your typed name on a pleading is confusingly referred to as your “signature”

even though there is no handwritten signature on the page.

10. STYLE POINTS

The tone of the Opinion should be professional, but not pompous. Remember that your solicitor
is a qualified professional. Do not order your solicitor around on the page. Given that your lay
client may read your Opinion, be tactful. Give unwelcome advice with sensitivity.

To make it clear that you are expressing an opinion (rather than stating a fact) simply use
everyday expressions such as “in my opinion” or “it is my advice that”. Refer to yourself as “I”
and “me”. Do NOT refer to yourself as “counsel”. You must “own” your opinion.

Remember that your role in giving written advice is completely the opposite of your role in court,
where your opinion is irrelevant and never revealed. For this reason, you would never utter the
words “in my opinion”, “I believe”, or “I think” in your routine exchanges with a judge or witness.
To do so is a highly effective way of demonstrating inexperience and inviting criticism from the
Judge.

General guidance:

(a) Proof-read your work: this includes spelling, grammar, punctuation, style and layout.

(b) Avoid errors in the use of words such as “advice/advise”, “tortuous/tortious”, which even
a spell-checker would not detect.

(c) Ensure that your opinion looks, as well as reads, like an authentic, professionally
produced document that could be sent to the professional client.

(d) When referring to yourself in an Opinion, simply do so as you normally would, e.g. “I am
asked to advise”. Although your Instructions will address you as Counsel (“Counsel is
asked to advise…”), refer to yourself only as “I” and never as “Counsel” (for example
never write “Counsel advises…”). The convention is to refer to your Instructing Solicitor
in a more formal way, in the “third person”, like this: “My Instructing Solicitor wrote to the
defendant …”. Refer to the solicitor using that label, or similar: “Please would my
Instructing Solicitor obtain these invoices” or “Could those instructing me obtain the
invoices”. Do not refer to them as “you” in an Opinion.

(e) Footnotes should not be used in an Opinion because any advice contained in them is at
risk of being missed. If they do not contain advice, they probably have no function in being
 present. A further reason for avoiding them is that they lure a writer into taking an overly
academic approach (adding comments about the law, comparing other cases etc), none
of which amount to advice or assist the client.
(f) Paginating and paragraph numbering an Opinion will assist the reader to navigate it and
is standard.

(g) Dates should be written in the following modern style: “29 September 2022”.

(h) Names should follow, as far as is possible, the following styles:

(i) On the first occasion “Mr Robert Frost”, and thereafter “Mr Frost” (unless there
is a need to distinguish him from another Mr Frost).

(ii) Do not contract personal names: thus, NEVER “Mr F” or “RF”. This is
particularly rude if it is your client. Your lay client will invariably have paid a lot
of money for your opinion: do not insult him. He is unlikely to want to spend
any more on you if you do.

(iii) Company names and those of other entities may be contracted, e.g.
“McPherson Builders Ltd” may be contracted thus “MB Ltd”.

(iv) Do not refer to your client as “the client” or anything similar. Always use their
title and name if they are an individual.

Practice Assessments: there is no absolute need to type up your Opinion but doing so will make
it easier to read. You must observe any instructions such as page limits or word counts.

11. STANDPOINT: OBJECTIVE OR SUBJECTIVE?

An objective approach is critical to the success of the Opinion. A subjective approach would be
a disaster. What does objective mean? It means taking into account what both sides will argue,
and the evidence both sides are likely to be able to produce by the time the case reaches trial.
Your task is to advise on what, at trial, the judge is most likely to decide based on each side’s
fully developed case.

Note that, by contrast, a subjective approach (as is used when arguing the case at trial) does
not concern itself with which side is the stronger: when taking the subjective approach we just
present the client's case in its best light, because this is what we are instructed to do. You try
to persuade a judge that you have the stronger case, regardless of whether or not that is your
belief. This is not our role when writing an Opinion.

The common mistake made by students in this context is to assume that everything your lay
client says will be accepted as correct by the judge. On disputed points this cannot be correct;
there will frequently be somebody else on the other side saying something different. Whose
version will the judge prefer? When forming the views which will be expressed in an Opinion,
only an objective approach allows an answer to such questions.
In a case where, on an objective view, you advise that the case is weak, remember that the lay
client may, nonetheless, instruct you to pursue it. Carrying on litigating as instructed, keeping
up communications with the other side, in spite of the weaknesses you have identified, will of
course be steps that are carried out from a “dug in”, subjective standpoint. But while writing
Opinions this must be avoided.

12. COVER YOURSELF

Negligence claims arising from written advice are not unknown. The common basis for a
negligence suit will be where counsel expressed themselves with too much optimism or even
bravado. Imagine an Opinion in which the barrister says success is certain (prompting the lay
client to spend a substantial amount of money on a claim which fails); or, years after limitation
prevents a claim being brought, it emerges that counsel’s outright rejection of any prospect of
success was overly pessimistic.

The solution is always to cover yourself. If you think success is certain, express that prospect
in more moderate terms, e.g. as “extremely good on the basis of the papers I have been sent”
or “if the evidence I have before me comes up to proof at trial, then Mr X’s chances of success
are extremely high…”. The inherent risk of litigation is then tacitly acknowledged, and no one
can accuse you of making predictions which were wrong.
 FINAL ASSESSMENT
The final assessment on the Legal Research and Opinion Writing module is “seen”. You
will have one week within which to submit your opinion after receiving the assessment
papers.

To pass this module you must pass both the Legal Research and the Opinion Writing
elements. The Legal Research element is graded as a pass/fail. You must achieve at least
60% on the Opinion Writing element to pass. If you do not meet the standard on one of
the elements but pass the other, you will be required only to re-sit that part which you
did not pass.

The assessment criteria are set out on the following page.

BAR VOCATIONAL STUDIES
ASSESSMENT CRITERIA FOR LEGAL RESEARCH AND OPINION WRITING

Legal Research (Pass/Fail):

a) Accurately identify the issues

b) Use appropriate methods and resources, and ensure that sources are up to date
c) Cite accurately and appropriately
d) Present the research trail clearly

Opinion Writing:

1. Language 10%
a) Clear, concise and grammatical English
b) Correctly spelled and appropriately punctuated
c) Uses language and style appropriate to an opinion

2. Structure 10%
a) Properly headed
b) Neatly laid out
c) Signed
d) Makes appropriate use of sub-headings and paragraphs
e) Follows a logical order

3. Issues, law and facts 30%

a) Identifies the relevant law, facts and issues
b) Omits irrelevant matters
c) Demonstrates a sound understanding and application of the relevant law to the
relevant facts.
d) Gives each issue due weight and significance

4. Conclusions and Reasoning 30%

a) Reaches clear conclusion on all relevant issues
b) Reaches a clear overall conclusion
c) All conclusions supported by appropriate reasoning
d) Explains, if necessary, why a definitive conclusion cannot be reached

5. Advice on evidence, procedure and practical matters 20%

a) Identifies and asks for relevant further information
b) Shows a practical understanding of where, how, why and from whom further
information may be obtained
c) Clearly identifies and advises on any practical and procedural steps

Legal Research is assessed (pass/fail) alongside Opinion Writing. If one is failed but
the other is passed, candidates will be able to re-sit the failed part.

Note that in order to pass this assessment you need to obtain a pass for the Legal
Research element and at least 60% of the available marks in opinion writing.

You will fail despite achieving a score of 60% or more if you make a serious ethical
transgression or if your legal or case analysis was so clearly incorrect that it would:

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 (i) put the client’s interest at risk; and/or
(ii) put you at risk of liability for negligence or a disciplinary finding.

REMEMBER: Legal Research skills AND Opinion Writing skills are required in order to
satisfy these criteria.