Opinions from counsel

Dorothy's helpful tips to barristers on how not to write ridiculous opinions ... Avoid expressions from 1873 ... Be clear about saying "it's not clear" ... Use less paper ... Better quality wishy-washy 

ONE thing Dot detests (in what, to be frank, is quite a long list) is the barrister who turns to water. 

Clients whinge constantly about lawyers who sit on the fence and won't give a straight answer to a straight question. We have all indulged in the practice, to protect the firm's insurance policy.

But another breed entirely is the barrister who: 

• Writes a long and largely unintelligible advice; 
• Neglects to actually read the brief, or some salient bits of it, such as the facts; 
• Reaches a wishy-washy conclusion; 
• Attempts to disguise the wishy-washiness of the conclusion by expressing it in language which would have been considered pompous in 1873 (here's a tip: the expressions "the same" or "aforesaid" to refer to a concept identified in the preceding paragraph are not used anywhere in modern parlance except in opinions from counsel); 
• Condition his or her advice on a long list of caveats, without regard to how ridiculous they are, or how much they look like were inserted solely for the purpose of providing an excuse if it transpires the author was wrong. 

My favourite barrister's caveat, given in an opinion on the interpretation of a contract, was that he had not been "privy" to the conversations which transpired during the negotiations of the contract, five years previous. 

Of course, the client would be staggered to be appraised of this important fact. 

Picture it. On reading this caveat on page 111 of the advice, the CEO will stop reading, pace the floor before the window, take a valium, breathe deeply and, when almost calm, telephone his COO. 

"You mean to tell me," he will say in deathly undertone, "that you failed to have a QC, specifically this QC, sit in meetings to observe the negotiations of this contract? What were you thinking?"

The way to express the concern in the opinion would be to say that because the provision is ambiguous, conversations during the negotiation of the contract could well be relevant.

That looks less like it was included for the sole purpose of protecting the author's ample arse, and more like a constructive suggestion to conduct further investigation.

You could spice up the opinion with a short description on the recent argy-bargy between the High Court and the NSW CA on this issue, and the dismissive delight one took in demonstrating its ascendancy over the other. 

And here's another tip: like everybody else, clients don't have the time or inclination to read a 150 page treatise parsing ambiguous wording in a contract. 

We all know the contract is unintelligible. 

We could not understand it either - that is why you were briefed to give an opinion. 

Your advice should say something like, "it is not clear, but in my view the likely interpretation of the contract by a court is [this]" and describe something vaguely cogent.

You should also include the alternative interpretations, expressed briefly.

Oh, and don't say those who negotiated it were nincompoops, or whatever the pompous 1873 expression for nincompoop is.

Chances are, the nincompoop was the CEO. He doesn't need to be reminded of that - he just wants someone to tell him whether to swallow the $200m loss now or fight it.

In short, tell us what you think it means, and try to do it in less than 10 pages.

If you can't bring yourself to do it in less than 10 pages, put 10 dot points in an executive summary on the first page or two - because that is all anybody will read.

If you don't do it, your instructing solicitors will have to do it, and will annoy you relentlessly until you confirm the correctness or otherwise of their attempts to do so.

One last, but not insignificant, thing: if it seems your opinion may contradict the advice already given by your instructing solicitor, give some advance telephonic warning before sending off the treatise.

Several reasons for this: 

1. Courtesy;
2. You might have missed some crucial fact that your solicitor could save the embarrassment of committing to writing;
3. If the solicitor has completely muffed it, they can leave the country before the stuff hits the fan.

Dot, the Disgruntled