Kara Sears
In law, an opinion refers to a judicial opinion or a legal opinion, which is a written statement or explanation from a judge or group of judges that accompanies the ruling in a case. The opinion explains the court's decision, including the rationale and legal principles behind it. It often includes the name of the judge, a statement of facts, the legal issues, and the court's rationale and holding. Opinions are usually published at the court's direction and can reinforce, change, establish, or overturn legal precedent. They are a major source of law in common law legal systems. In the US, opinions always establish a particular legal interpretation, while memorandum decisions do not.
Characteristics and Values of an Opinion in Case Law
| Characteristics | Values |
|---|---|
| Type of Opinion | Judicial opinion, memorandum opinion, expert opinion, opinion work product, advisory opinion, concurring opinion, dissenting opinion, majority opinion |
| Issuing Entity | Judge, group of judges, court, attorney, barrister, advocate, attorney general, expert witness |
| Purpose | Explain the rationale and legal principles behind a ruling, establish a particular legal interpretation, advise on legal issues, prepare for litigation |
| Content | Name of the judge, statement of facts, legal issues, court's rationale and holding, dicta |
| Publication | May be published at the direction of the court, included in law reports or "reporters", made available to the public due to pressure |
| Precedent | May reinforce, change, establish, or overturn legal precedent, may not be invoked in subsequent cases |
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What You'll Learn
Judicial opinions
In the US, judges typically issue a memorandum decision that outlines how state or federal law applies to a case and affirms or reverses the decision of a lower court. These memorandum decisions do not establish legal precedent or reinterpret the law. On the other hand, opinions always establish a particular legal interpretation.
In common law countries like the UK, a legal opinion also refers to written legal advice on a point of law issued by a barrister or advocate, often called "counsel's opinion". Occasionally, it may be issued by a senior government law officer, such as an attorney general. When issued by a foreign lawyer or law firm, it is referred to as a "foreign legal opinion".
In commercial transactions, particularly in financing, an opinion may be required to assess the corporate capacity of the borrower and the enforceability of the transaction documents. This opinion is typically issued by the borrower's or lender's counsel, depending on the ethical rules of the jurisdiction.
Some common legal phrases that use the term "opinion" include:
- Majority opinion: A judicial opinion joined by more than half of the judges deciding a case.
- Concurring opinion: The separate opinion of an appellate judge who voted with the majority but may have a different rationale for their decision.
- Dissenting opinion: The opinion of an appellate judge who disagreed with the majority's decision, explaining their disagreement.
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Memorandum decisions
In the majority of US cases, judges issue a memorandum decision that indicates how state or federal law applies to the case and affirms or reverses the decision of the lower court. A memorandum decision does not establish legal precedent or reinterpret the law and cannot be invoked in subsequent cases to justify a ruling.
A legal memorandum, or legal memo, is a legal document that summarises one side's interpretation of a particular matter. It serves as an objective, stand-alone document that identifies risks and unknown facts requiring further investigation. It should not take a stance or offer a legal opinion but instead provide an impartial summary of all relevant case law and its application to the facts in question.
Memorandum opinions are often issued in areas of well-settled law or where a particular set of facts may create imprudent case law. For example, in California, while all appellate decisions must be made "in writing with reasons stated", courts have the discretion not to certify opinions in frivolous cases for publication.
Legal memos can be either closed or open. A closed legal memo focuses on specific case law or other primary law and is written based on predetermined relevant case law. An open legal memo, on the other hand, requires the writer to research and identify the relevant case law, analyse the legally significant facts, and assess how the court may apply the law to the matter at hand.
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Expert opinions
In law, an "expert opinion" is a belief stronger than an impression but less strong than positive knowledge. It is a formal expression of a judgement or appraisal by an expert. In the context of Rule 702 in the Federal Rules of Evidence, an "expert opinion" is testimony by an expert witness—someone who possesses specialised knowledge, skill, experience, training, or education.
It is important to distinguish between "expert opinion" and "opinion evidence". While "expert opinion" refers to the testimony of an expert witness, "opinion evidence" pertains to the personal beliefs or conclusions of a witness based on their perceptions or observations.
In the US legal system, there are several types of opinions that may be issued by judges, each with its own implications and authority:
- Majority opinion: A judicial opinion joined by more than half of the judges deciding a case.
- Concurring opinion: The separate opinion of an appellate judge who agreed with the majority decision but may have a different rationale or perspective.
- Dissenting opinion: The opinion of an appellate judge who disagrees with the majority's decision, explaining their disagreement.
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Opinion work products
In law, an "opinion" primarily refers to a judicial opinion, which is a court's written statement explaining its decision for a particular case. In certain jurisdictions, a legal opinion is a written explanation by a judge or group of judges that accompanies an order or ruling in a case, outlining the rationale and legal principles for the ruling.
Opinions are usually published at the court's direction and, to the extent that they contain pronouncements about what the law is and how it should be interpreted, they reinforce, change, establish, or overturn legal precedent. Published opinions of courts are collectively referred to as case law and constitute a significant source of law in common law legal systems.
"Opinion work product" refers specifically to material prepared by an attorney in preparation for litigation. This material reflects the attorney's opinions, mental impressions, conclusions, or legal theories about the case. Unlike other work products, an opinion work product is typically not accessible to an adversary.
In the context of commercial transactions, particularly financing, an opinion is often required by the lender regarding the corporate capacity of the borrower and the enforceability of the transaction documents. This type of opinion is usually provided by the borrower's or lender's counsel, depending on the ethical rules governing the issuance of opinions in the relevant jurisdiction.
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Foreign legal opinions
In law, a legal opinion is a written explanation by a judge or group of judges that accompanies an order or ruling in a case. It lays out the rationale and legal principles for the ruling. In the majority of US cases, judges issue a memorandum decision that indicates how state or federal law applies to the case and affirms or reverses the decision of the lower court.
A foreign legal opinion is an opinion issued by a law firm in cross-border commercial transactions. It certifies the effectiveness of the transaction under the applicable foreign law. Foreign legal opinions have become highly standardised over time, and most follow a regimented format. They typically confirm the jurisdiction to which they relate, list the documents reviewed, and set out various opinion statements.
In cross-border transactions, the negotiation and discussion of the format of the foreign law opinion elucidate areas of legal stress or risk in relation to the proposed transaction and foreign legal systems. Standard assumptions normally include assuming that documents and records reviewed by the law firm giving the opinion are accurate and that all copies they review are true copies.
The substantive opinion statements a foreign legal opinion will make will ordinarily include:
- Confirmation that the relevant obligations be recognised as constituting valid and binding obligations of the foreign party.
- Identification of which person or organ has the power on behalf of the foreign entity to enter into the transaction.
- The proper method of execution of documents by the foreign party.
- Confirmation that the transaction does not breach the constitutional documents of the foreign entity or the laws of the foreign country.
- Confirmation that no approvals or licences are required in the foreign country in relation to the transaction.
- Confirmation that the transaction documents are not subject to stamp duty or registration requirements in the foreign country.
- Confirmation that no withholding or other taxes apply to the transaction in the foreign country.
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Frequently asked questions
In law, an opinion is a written explanation by a judge or group of judges that accompanies an order or ruling in a case. It lays out the rationale and legal principles for the ruling.
There are several types of opinions in case law, including:
- Majority opinion: an opinion joined by more than half the judges deciding a case.
- Concurring opinion: the separate opinion of an appellate judge who voted with the majority, but may have a different rationale.
- Dissenting opinion: the opinion of an appellate judge who disagreed with the majority’s decision.
The purpose of an opinion is to provide a written explanation of the court's decision, including the facts of the case, the legal issues implicated, and the court's rationale. Opinions can also establish a particular legal interpretation and reinforce, change, or overturn legal precedent.
In the US, opinions are typically provided by judges. In the UK and other common law countries, a legal opinion can also be provided by a barrister, advocate, or senior government law officer. In commercial transactions, an opinion on the corporate capacity of a borrower and the enforceability of transaction documents may be issued by the borrower's or lender's counsel.
