Major Assignment 2 – Client Opinion Letter

Major Assignment 2 – Client Opinion Letter

Use the facts given to you for Major Assignment 1, the Law Office Memo. Assume that the lawyer to whom you report, Bob Loblaw, has reviewed your memo and is now willing to take the case. He intends to outline his analysis, conclusions, and recommendations in a well-written letter, which you will draft for his signature. Be thoughtful and thorough. Pay attention to the various factors described in your text, this assignment, class discussion, and any additional resources I may provide via Canvas, which ought to be considered when writing to a client.

Unless you are supremely confident that your law office memo research was comprehensive, you may need to do some additional research. That is almost always the case.

You may receive no assistance from any person concerning this assignment, except that which you receive from me, Joseph Longhany, or any tutor or other person whose assistance I have authorized. Likewise, you may not aid a fellow student on this assignment unless I have approved of it ahead of time. During the week beginning March 23, we will devote a portion of our class to discussing this assignment.

Follow all general rules for assignments, except as modified by my specific instructions. If you have a question, ask me. Be proactive. Don’t wait until the last minute.

For starters, read Chapter 19 of the text, pp. 524-530, which describe and explain the various components of law office correspondence.

We’ll discuss this in class; when the text and I disagree, follow my lead.

Pay special attention to pp. 532-535, which describe the components of a client opinion letter, as well as pp. 540-541, which provide a sample of a client opinion letter and some brief comments following that sample.

Because an opinion letter is usually offered to a lay audience, take care to write in a way, and at a level, that is appropriate for your reader. You should know how to format a letter, as this was covered in your Word class. Just in case, though, the text provides you with the basics at the beginning of Chapter 19. Use Exhibit 19-1 as a checklist to insure you have essential format items included. Each item is explained in the text. Do not add your own name on a header. The letter should appear just as it would if you were drafting it in a law office. Provide your name only on a cover sheet, not on the letter itself.

Formatting a letter will become second nature to you. Be careful that you don’t become sloppy. Getting the date right can be crucial. The same applies to the address. Indeed, there are many places where what seems like an innocuous error could spell disaster for the client and liability for the attorney. Therefore, carefully proof-read your work. Make sure the lawyer doesn’t just scan and sign the thing – urge the attorney to read it carefully (most won’t need to be encouraged to do so, but be ready).

In addition to basic format considerations, I think that most well-drafted client-opinion letters include the several major substantive components, which may vary a bit from case to case. The opening line depends on the nature of the case and the relationship the lawyer has with the client. I recommend starting with some sort of greeting, perhaps also thanking the client for entrusting your firm to analyze the facts and explain what the client’s rights might be. Identify the legal question the client has posed. You will probably need to avoid the more formal method of framing legal issues (under/does/when), and opt, instead, for simple, understandable language.

Answer the question by offering a simple conclusion, which will reappear, perhaps in a bit more detail, later in the letter. You might consider skipping this step if you have bad news to deliver, letting the client see the analysis before reaching the conclusion.

In the next paragraphs, lay out the facts. You must include all the key facts on which your analysis is based. Include supportive facts, but only to the extent that you believe that they are required to help the client better understand, or, perhaps, to help the client understand that you understand the context in which the key facts occur. This is a judgment call. Reasonable people can differ. What is more important is to be sure to include all key facts.

Next comes your analysis – the explanation of your conclusion. Some authorities recommend not mentioning case names. I disagree, and I suggest that if you have found a particularly compelling case, you should mention it by name, omitting the citation. You might also mention the court that issued it, especially if that court is a supreme court, whether state or federal. Statutes can be treated in a like manner, by mentioning the popular name (e.g., the Sarbanes-Oxley Act). You may refer to a specific section of the relevant law if it plays a pivotal role. This, too, is a judgment call. I know some lawyers who include full citations; others provide none. The more sophisticated the client, the more appropriate it is to provide the additional detail.

As you know, and as the text describes in several chapters and many pages, analysis has multiple facets. Employ those techniques – such as explaining how a particular case matches up nicely with the client’s facts, or what the opposing party’s argument is likely to be, and how to respond to it – as your circumstances require. Here you may repeat your conclusion, with a bit more detail than you used at the start, if necessary.

With your analysis completed, you would generally offer a recommendation. It often starts with an assessment of the relative strength of the case. Be careful to overstate neither the strength nor the weakness of the case. Avoid phrases like “sure winner” and “no possible way.” Try, instead, phrases like “we believe that a court would probably honor your claim” or “we believe that you would be unlikely to prevail.” I am not suggesting that this exact wording is required.

Indeed, there are many ways to convey your assessment. Once you’ve laid it out, though, you should follow it up with some specific advice. Here, you must be clear: “If you intend to sue, you must file by September 15 of this year. After that, your claim will be time-barred, and you will have no ability to recover against the Jeffersons.”

After you have dispensed your recommendation, you should next instruct the client on actions to take.  Should the client make an appointment to meet with the lawyer at the office in the next 20 days? Should the client accept service of process? Is there a form to fill out? Cover such matters now.

Finally, don’t forget to cover your firm’s assets, so to speak, by including language that protects both lawyer and client. You can say, in the first or second paragraph, or at the end of the letter, that the opinion your firm has reached, and the advice and recommendations it has made, may be inaccurate and unreliable if the facts that the client has provided are inaccurate or incomplete.

One thing that many letters do not address, at some risk, I think, is the potential cost of litigating, both as the prevailing party, and as the losing party. Is there an attorney’s fee provision that will be invoked along the way? Will taxable costs be substantial? This could be spelled out in greater detail in the engagement letter, but mentioning it here is not a bad idea. It allows a client to decide a course of action with eyes wide open, from the very start.

Some lawyers mention the emotional toll litigation may cause. Most do not. If the client is elderly or frail, it is worth considering.

Also remind the client that this advice is given solely for the client’s benefit, and for no one else.  Moreover, you should point out that the opinion is based on the law as it stands today. The law is ever evolving. Statutes are enacted, revised and repealed. New appellate decisions are handed down constantly, one of which might have the potential of altering the outcome of the case. Usually this doesn’t happen overnight, but it can happen over time. This means that it is usually wise to act sooner, rather than later.

Of course, the protective language wouldn’t be complete without a reference to the applicable statute of limitations, specifically or generally. It does not need to be at the end of the letter – none of these provisions do – as long as it is included somewhere.

In April you will receive your third major assignment – the motion for summary judgment and memorandum of law in support thereof.  Of course, you will also periodically be given smaller tasks to complete, so time management counts, and it is important that you start working on this now.

You should manage your time carefully so that you are not submitting it at the last minute. You have the freedom to procrastinate – I will be curious to see what you do with that freedom. Since you have already done the bulk of your research, if you use your time wisely, you should have no problem in meeting this deadline and setting aside sufficient to for other tasks.

My dear students, the steps I suggest here are solid, tested by time and experience. This is not the only letter you will draft, but it is an important one, and it combines several skills you are cultivating in this class. Strive for excellence. As always, feel free to touch base with me if you have any questions.

This assignment is worth 30 points. You must a submit a digital version of your letter (as a .docx file only) in your Canvas dropbox by 11:59 p.m. on Sunday, April 10.