Corporate Governance Essay

WRITING AN OPINION ON A LEGAL ISSUE

Introduction

The presentation of an opinion on a legal issue will be considered under two heads as follows:

(a) The pre-writing stage; and,

(b) The actual writing.

The pre-writing stage encompasses the collection of data, making notes and making preliminary decisions about the information amassed and avoiding pitfalls. Very often, the position adopted – for or against – an issue is emotional and is part of the pre-writing stage.The validity of your position has to be tested against the facts, opinions and other data you compile even before you begin drafting your outline.

Before the writing begins

Normally, you will be given a set of facts involving one or more issues which may involve the law . The facts give rise to a difference of opinion with some arguing in favour of an issue and others arguing against it.. You are usually asked to support a given point of view or to rebut it or to refine it. Several preliminary matters must be considered before you actually put pen to paper.

Legal issues are usually carefully crafted and are highly unlikely to contain any unnecessary facts. Thus every fact furnished is likely to be important. It is therefore necessary that you do not dismiss out of hand, any detail as “superfluous”. Even if you think that a fact is surplusage, consider it carefully to determine its impact on the issue; chances are that it does affect the legal position. Close consideration of such a fact will usually enable you to establish its relevance to the legal issue under scrutiny.

Normally, the fact situation given is complete and you are not expected to supply any missing facts. This does not, however, mean that you cannot draw attention to facts that appear to have been omitted from the issue. One situation in which this must be done is where, in your opinion, the missing facts will drastically affect alter the legal position you are arguing.. However, before you do this, you must ensure that you have scrutinized all the given facts to ensure that the fact perceived to be missing is not actually incorporated in, or negated by, a detail or two in the rest of the statement of the issue.

Where you are arguing for or against a particular point of view , you argument must be balanced regardless of whether you are arguing pro or con. Your advice would necessarily be based on the facts as well as the legal principles and authorities that favor your position. However, such advice would not be worth very much if it ignored the facts, logic and the law that favoured the other side. The ideal argument would, even as it emphasizes the factors that favor your position, consider the facts and the arguments against him. Where possible, it would show how the adverse facts can be distinguished or, at the very least, how the unfavorable law and facts affect your position..

It is possible that a particular point of law is not settled. In that event, state the differing legal options (supported by appropriate authorities) and discuss them. You should state which of the options you prefer. Show why that option is to be preferred over the others. This necessarily involves highlighting the strengths of your preferred option and conceding its weakness. Do not pretend that the uncertainty in the law does not exist as that is tantamount to an admission of ignorance of the state of the law.

Very often, it is possible to have a variety of different perspectives to an issue rather just one correct viewpoint. answer. In arguing a position, what matters is that the applicable arguments are raised and marshalled to reach a conclusion. It is even possible to differ with the law or logic as conclusively defined by authority provided that answer reveals knowledge of the applicable law or facts or authority What counts is the quality of the argument advanced (and the legal or logical or data on which it is based). Remember, as important as what you have to say, is how you say it!

When you are expressing an opinion, what you write has to be shaped by, among other things, your purpose and your audience/reader. Your purpose, evidently, is to advise your reader as to his options. To realize this purpose, you will generally have to identify the applicable law and logic apply it to the given facts so as to lead to a conclusion about your reader’s legal position or preferred option. Your task, as the advocate , is to furnish advice that is comprehensible to your reader. Normally, your client is a lay person unacquainted with the law. Your reader does not cease being a lay person simply because he throws out a few legal terms such as “consideration” or “estoppel” or “misrepresentation” in his conversation with you. Thus, unless there is compelling evidence to the contrary, you should presume that your reader is a lay person. Treat your reader as a reasonably intelligent, reasonably well-informed individual able to grasp any argument or concept that is explained to him. This imposes upon you the obligation to define and explain any legal concepts that you have to use in your opinion. Failure to do this may be adversely construed against you. Remember, in theory at least, you are not writing for your examiner who may be presumed to know your subject .

You will compile material for your opinion by reading. This is usually a bigger job than the actual writing of the advice. Check the accuracy of the legal data (including judicial or logical authorities) you collect. Before you begin writing, decide the order in which you want to present your material. An outline would definitely be assist you to organize your material. An outline would also enable you to determine the relevance of your material Ensure that the different parts of your opinion relate to each other and lead inexorably to the opinion you are supporting

Writing an opinion

Perhaps the best way to approach an opinion legal problem is not to forget that an opinion , like all writing, has to present material that is organized to make a point. Writing an opinion r may be said to include the following stages:

(a) The Introduction;

(b) The Body of your answer; and,

(c) The Conclusion.

To discuss the three stages, we shall consider a problem set in a previous semester. The problem is reproduced below.

“Corporate governance gatekeepers have vital antifraud roles and responsibilities” Support, refute ore refine this assertion

(a) The Introduction

Begin your answer by defining the key terms in the statement. Here you would obviously have to identify the corporate governance “gatekeepers”. Who/Who are these? (board of directors, the audit committee, external audit and internal audit) What do they do? How do they do whatever it is they are supposed to do? Once you have addressed these questions, you may declare whether you support or disagree with the statement . Or do you want to modify it?. The Introduction should close by announcing the arrangement of your main ideas. Avoid details which belong properly to the body of your answer.

If you decide to set out your conclusions in the introduction, make sure you state clearly that this is what you are doing; otherwise your reader will be puzzled as to why preliminaries (such as definitions) and other supporting material comes later in the paper. You also run the risk of generating the impression that your paper is confused and disorganized.

(b) The Body of your answer

State the law on the legal point in issue (give the statutory or judicial authority for it) and apply the law to the given facts; and,

Where, as in this case, more than one legal concept has to be explained and applied to the facts, the task may appear be daunting. What you need to do is to be systematic. Identify each concept, define it (if possible), explain it (that is, list and explain its ingredients or the rules associated with it) and apply it to the given facts. Remember to furnish the judicial or statutory authority for each applicable legal principle or concept Do this for each of the concepts. This process of exposition has to applied for each of the concepts.

Many an answer consists of the reproduction of all that the writer can write about a legal concept regardless of its relevance to the issue at hand. This seems to be the result of two unvoiced premises. The first is that the writer who has complied such a vast body of material should not be required to trim it. The second seems to be that answer must be in the flood of material unloaded and it is up to the reader to identify the applicable portion. Examiners are not impressed by such “unloading” and even if they are willing to wade through the mass, will do so reluctantly.

The facts constituting a legal position may be based, as they usually are, on the facts of a decided case. The facts of the decided case may be used with or without modification in the problem. Whether or not the facts from the precedent are modified, the reproduction of the facts and holdings of one or more case authorities followed by some statement to the effect, “Based on the cases reproduced above, X is likely to succeed” is not likely to score more than a passing mark. Such an approach does not reveal either any understanding of the legal principle responsible for the decision of the precedent or demonstrate how the ratio of the precedent applies to the facts of the problem. Without any exposition of the law established by the precedent and of how it applies to the facts of the problem, the bare reproduction of case facts and holdings remains a mechanical exercise.

Case authorities should be cited to provide the source of a legal principle. Resist the temptation to list all the authorities which appear to be related to a legal concept – especially if you have not read them. Padding an answer with inapplicable case citations will cost, rather than gain, marks.

A question frequently asked about the use of case authorities is whether it is the holding of a case or both the facts and holding of the case that should reproduced in an answer. The response has to be, “Neither, in the preponderance of case”. A case authority is useful for the principle it established. Ideally, you should be able to state and apply that principle. If that is what you do then all you need to do is provide the case citation without more. For example, look at the following sentence.

“The law is that generally, an advertisement for sale in newspapers, magazines etc is an “invitation to treat”, that is, an invitation to make an offer and is not itself an offer: Patridge v Crittenden [1968] 1 All ER 421

The writer has reproduced neither the facts nor the actual holding; he has merely stated a legal principle and cited its source. On the other hand, if you are going to draw close parallels to the facts of a case, then you need to cite the facts. Another situation in which it is adviseable to cite the facts of a case authority is where you want to show how the facts in your problem differ from the facts in the authority.

When you reproduce passage from a case or other reference material, acknowledge the source. Note that the conventional abbreviation for “page” is a lower case “p.” followed by the page number while the abbreviation for more than one page is, also in lower case, a “pp.” followed by the page numbers. Consider whether the acknowledgment should be incorporated in the text or moved to a footnote or endnote.

· Where the sources of a quotation is a case and that is incorporated into the text, the case should be cited in full as in Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at p. 258.

· Where the source is a book, it should be cited as follows:

author(s) / comma / title in italics / comma/ open bracket / publisher/colon/year of publication/ close bracket / comma / page number(s) – if applicable/full stop. Examples:

Kwan, Rachel. Playing with the Law, (Mining University Press, 2018), p. 52.

Kwan, Rachel and Marco Joynt (2005) Not Playing with the Law (Kako House Press: 2015), pp. 544 - 548.

· If you decide to use footnotes or endnotes, they should be numbered consecutively, beginning with 1, throughout the paper. The footnote or endnote number is a superior number and stands clear in the text – without brackets or other embellishments. Luckily, your computer will insert and number footnotes and endnotes for you.

(c) The Conclusion.

Your analysis should lead you to a definite conclusion: your reader either has a case or he does not, he is either entitled to the option he prefers or he is not. Do not equivocate by declaring, “Whether XX can succeed depends on the court’s decision”. Everybody already knows that! Perhaps the only situation in which such a stance is permissible is where your analysis establishes that both option/points of view are finely balanced with very little to distinguish between them. But this is rare as problems are drafted to allow you to make a decision, not sit on the fence and to pass the buck to the court.

Caveat

What is presented above is admittedly prescriptive. But it is only a starting point. With experience will come the confidence that will enable you to vary what is said here to suit your particular purposes.

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