Postgraduate to professional: creativity and opinion writing skills

In her paper presented at Learning in Law Annual Conference 2007 Ros Carne, Opinion Writing Co-ordinator at City Law School, described the grid used to help students on the Bar Vocational Course draft opinions.

How can opinion writing be made creative? I confess I was stumped when it was suggested, but perhaps we should consider what is meant by creativity. What common thread links every piece of great art, whether it be a symphony, a novel, a poem or a sculpture? Even a pop song? Each has its own coherent structure, its own particular architecture. So it is with opinion writing. Students may wish to build palaces – but they cannot do so until they know where to lay the foundations.

I began teaching opinion writing at City Law School five years ago. During this time I have often felt as if I have been doing everything in my power to stifle student creativity! But although the careful and painstaking method we apply may initially seem like a straightjacket, the aim is to liberate the barrister within. What is needed is to develop and transform the writing skills of students to the writing skills needed by successful practitioners.

Opinion writing involves a close reading and understanding of instructions and their context, thorough legal research and analysis, application of law to facts and detailed consideration of evidence. A disciplined and effective structure is at the heart of the skill. Novel points of law and lengthy “what if?” disquisitions are not encouraged. Evidence must be carefully weighed and tested.

How do students approach legal writing?

Students arrive at City Law School with a very wide range of abilities and skills. Some of the more fluent have a tendency to abstraction and debate which is not helpful in an opinion, while others appear unable to analyse a legal or evidential issue with any degree of sophistication and are reduced to repeating passages from text books or lecture notes.

What they have in common is that, as law graduates, they are excited by law and legal argument. There may be other reasons for their wanting to qualify as a barristers, but if they are not excited by law itself they cannot expect to get very far. Yet their very love of the law may well give rise to its own problems. Overly creative students are at risk of distorting and even manipulating facts so badly that they commit serious errors of professional ethics.

Some of our brightest students have difficulty focusing on the essential task of assisting their client and solicitor. They long to take up obscure and novel points, to explain why a certain Court of Appeal decision, while currently good law, must surely be taken up by the House of Lords in the near future. They are interested in the viewpoint of individual judges and enjoy commenting on judicial pronouncements, whether central or obiter. They particularly love Latin. Arguing law? Of course. Why else would they have been asked to give an ‘opinion’?

Others, of lesser sophistication, may like the idea of giving advice, but may have difficulty with the law itself. They may know where to find it, they may have a general idea of what area of law applies, but they baulk at doing anything more sophisticated than transcribing their student textbook or notes. There are always some students for whom writing itself poses serious problems. There are some who come with the misleading notion that the barrister’s practice is almost entirely about oral skills, splendid jury speeches and trenchant cross examination. It comes as quite a shock to some of them that, even as criminal barristers, they will be required to write well focused and concise advice on evidence or appeal, and they struggle with identifying key points.

Opinions vary enormously, and there is nothing more difficult than teaching an art in which there are few rules or no rules. Or are there rules?

Teaching opinion writing

Opinion writing is one of the most difficult skills to teach on the Bar Vocational Course (BVC). We try to look hard, analyse the constituents of what makes an effective opinion and use those constituents to inform our teaching. Over the last few years the opinion writing course at City has become increasingly prescriptive, and I believe this is the only way forward. A wide variety of opinion writing styles may be acceptable and even desirable amongst barristers, however a wide variety of approaches and teaching styles is likely to be counterproductive in the training that prepares our students for life at the Bar.

We attempt to give our students the tools and thus the confidence they need to create well structured and effective opinions helpful to both solicitor and client. Where they best succeed we hope their opinions will not only be helpful, but a pleasure to read.

What is required in counsels’ opinions? Are they handing out the law from on high, rather as a law lord gives judgement? I think we all know the answer is ‘no’ – opinions are aimed at assisting and advising the professional and lay client. To give the students a clearer picture of the barrister’s role I we hand out ’10 top tips’ to students shortly before their opinion writing assessment, including the following:

Remember that the law is a means to an end, not the end itself. The law will tell you things like what needs to be proved for a claimant to succeed, what the difference is between causation and remoteness of damage (make sure you understand this) etc. Beyond this, it is the facts that matter. The lay client is interested in solutions. The solicitor wants to know the basis of your opinion (ie the relevant legal principles, the evidence which will be needed to prove the case and the likelihood of success).
 
By way of analogy, think of going to the doctor with a very painful shoulder and the doctor sends you to a consultant. You may only want to know what to do to get better (and may not be interested in the name of the condition or how it came about). Your doctor will want to know what the condition is, what may have led to it developing and why the consultant is recommending a particular form of treatment and the likelihood of success of that treatment.

The opinion writing gird

From session 2006-07 we have created a linked Legal Research and Opinion writing course, based on a series of six exercises. The students spend a week considering a set of instructions, identifying relevant issues, following up their initial analysis using a number of paper and online sources such as are used by practitioners. They then transfer the fruits of this research to their opinions.

To clarify this transition we use a grid system indicating how the case as a whole and indeed every legal and procedural issue within the case should be considered in a carefully structured way. The aim of the grid is to assist in the difficult transition between theory and practice, the perennial quandary “I know what I want to say, I just don’t know how to say it”.

How do we enable the students to write opinions in which they can use their knowledge of substantive law, their legal research skills and their newly acquired understanding of evidence and procedure to assist their professional and lay client? A disciplined and effective structure is at the heart of it. Just as if we were designing and building a house, we need coherent design, buttressed by scaffolding and good building materials.

So how do our students arrive at an appropriate structure? One way we assist them is by the use of the grid. It is important to note that we are looking not simply for a sound conclusion in an opinion, we are looking for a sound conclusion on every issue raised implicitly or explicitly in their instructions. Thus students need not be confined to one grid – in a more complex opinion, they may have recourse to a series of grids.

Below is an example of a blank planning grid:

Cause of action: Common law, reg, statutory provision	Legal test on each element of law which applies	Apply law to facts	Consider gaps in evidence	Evidence we need to prove case on B of P	How will we obtain evidence? From client? From witnesses? Disclosure?	Conclusion

A grid such as this works in two ways – vertically in creating a structure for the opinion as a whole, and horizontally in creating a structure for individual paragraphs. One of the most difficult aspects of an opinion is not so much the overall structure but the microstructure. Sometimes the facts are elusive, the law complex. Even the most fluent student may find themselves meandering or waffling. One way of approaching this difficulty is to think about how to approach and therefore structure an individual paragraph.

Rewriting a paragraph using the grid

The law school’s opinion writing manual includes a brief set of instructions and a sample opinion full of mistakes, including superficial mistakes such as inappropriate language and modes of address, which students tend to spot quite easily. It is much more difficult to see faults in a paragraph of perfectly grammatical prose, which refers accurately to both fact and law.

One of the online exercises we give students is to rewrite a paragraph. The example below is based on a claim resulting from a fatal accident involving the absentee owner’s liability. Plenty of guidance is supplied:

Writing a structured paragraph(s)

1. Consider the case study exercise.
2. Write a well structured paragraph (or paragraphs) setting out the basis on which Mr Thwaite might be liable for the deaths of Susanna and Emma.
3. Confine your paragraph to liability, if any, under the Occupiers’ Liability Act 1957.
4. Structure your paragraph as follows:
   a) The applicable law. What is the main issue for consideration?
   b) Application of law to the facts in Re Susanna and Emma Williams.
   c) What evidence is available? Evaluate it. What additional evidence do we need?
   d) Conclusion

Paragraph 4 basically refers to the constituents of the grid referred to above – the idea is to transform what is in your grid into a paragraph.

The following week the students are given the answer with an explanation.

Writing a structured paragraph(s): sample answer

Overall issue: Is Mr Thwaite liable as an occupier?

Detailed structure:

• law – a person is likely to be regarded as an occupier if they have sufficient degree of control over premises to be able to ensure the safety of a lawful visitor. It is possible to have more than one occupier of premises (Wheat v Lacon [1996] AC 552).
• issue – what degree of control does Mr Thwaite have?
• apply to facts – owner, visited property a month before accident, aware property not in good state of repair, aware specifically on 11 February that balcony in urgent need of substantial repair
• evidence required – pre-action disclosure, 11 February 2006 specification of Mr Johnson of Benedict Brutus
• conclusion – likely to be liable

Sample paragraphs:

1. A person is likely to be regarded as an occupier if they have sufficient degree of control over the premises to be able to ensure the safety of visitors (Lord Denning in Wheat v Lacon [1966] AC552). The issue therefore is the degree of control exercised by Mr Thwaite. As owner of the premises he clearly satisfies this test in that he is in a position to say to any visitor “come in”. The fact that he was not present at the time of the visit is immaterial (Harris v Birkenhead [1976] 1 WLR 279. Wheat v Lacon is also authority for the proposition that it is possible to have more than one occupier of premises. Thus, the fact that the estate agent may also be an occupier would not obviate any potential liability on behalf of Mr Thwaite.
2. In the letter of 20 July 2006 enclosed with my instructions Mr Thwaite indicates that he visited the property in the month before the accident and that he was aware that the property was not in good a good state of repair. Even more significantly, he notes that on 11 February 2006 he received a specification from Mr Johnson of Benedict Brutus, following his inspection on 4 February. This indicated that amongst other matters the balcony was in urgent need of repair. If this matter does not settle it will be necessary to seek disclosure of this document.
3. As owner Mr Thwaite was in a position to postpone visits by prospective purchasers until repairs were carried out. There is no evidence to suggest he did this. Thus in my view he was in control of the premises but failed to take the necessary precautions to guard visitors from personal injury or in this case, death.

The above example is a simple one, but it is not only our weaker students who find this method helpful. There comes a point in planning an opinion when many of us, students or practitioners, are uncertain how to proceed, how best to lay out and express a point. The problem can be acute, and not merely for those who generally have difficulty in expressing themselves. It may also arise in the case of fluent writers who may be tempted to expound at great length on some interesting point of law. Students with a first degree in English or History can be particularly prone to this.

When I first came to City Law School I was not at all enthusiastic about the grid, however five year of teaching have led me to see what a useful and effective tool it is. Now that we link our legal research course to our opinion writing course we use the grid in both streams so that students can transpose the fruits of their research to the grid and then extract the contents of the grid to create the structure and content of their written opinion.

Nor is the use of the grid confined to liability. I teach civil law. Contrary to popular belief, not all prospective barristers have chosen the BVC route because they believe they will make millions. Many are highly idealistic and become somewhat disappointed when they are told that 90% of civil law is about money and that most clients’ concern is not “have my human rights been breached?”, but “how much will I get?”. Causation of loss, remedies, quantum of damages, remoteness, mitigation – these are all areas where students have difficulties, and each is an area where a grid can be useful.

The grid system is not new – what is new and still developing is the precision with which we now link this analytical stage to the writing stage, which has been shown to be of particular assistance to those who struggle with legal writing. While it might seem that its effect will be to stifle creativity, it has been found that it gives them the tools and confidence to develop their work in a way that ultimately allows their creativity to flourish. We show them how to write not only a well structured opinion, but also a well structured paragraph.

Last Modified: 9 July 2010