Legal opinion
Encyclopedia
In law
, an opinion (also consilia) is usually a written explanation by a judge
or group of judges that accompanies an order or ruling
in a case
, laying out the rationale and legal principles for the ruling.
Opinions are usually published at the direction of the court
, and to the extent they contain pronouncements about what the law is and how it should be interpreted, they reinforce, change, establish, or overturn legal precedent
. If a court decides that an opinion should be published, the opinion is included in a volume from a series of books called law report
s (or reporters
in the United States
). Published opinions of courts are also collectively referred to as case law
, which is one of the major sources of law
in common law
legal systems.
is being interpreted in a novel way, or the case is a high-profile matter of general public interest and the court wishes to make the details of its ruling public.
In the majority of American cases, the judges issue what is called 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 re-interpret the law, and cannot be invoked in subsequent cases to justify a ruling. Opinions, on the other hand, always establish a particular legal interpretation.
and other common law countries, a legal opinion also refers to written legal advice on a point of law issued by either a barrister
(often referred to as "counsel's opinion") or occasionally a senior government law officer, such as an attorney general
.
The latter form of opinion is sometimes made available to the public either because of public pressure (see for example Lord Goldsmith's opinion on the Iraq War, Yoo memo), or because a general clarification of the law is called for (see for example, the Yorke–Talbot slavery opinion). In the United States
, several state attorneys general issue attorney general's opinions.
Several areas of commercial practice call for formal legal opinions of counsel. The Legal Aid
scheme in the United Kingdom
requires a legal opinion showing reasonable prospects for success before the Legal Aid board will fund any claim. Insurance
policies for professional negligence
will frequently require an opinion of counsel before the insurer is required to pay out on any putative claim (sometimes called a QC clause
, when it must be an opinion of leading counsel
).
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, an opinion (also consilia) is usually a written explanation by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or group of judges that accompanies an order or ruling
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
in a case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
, laying out the rationale and legal principles for the ruling.
Opinions are usually published at the direction of the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
, and to the extent they contain pronouncements about what the law is and how it should be interpreted, they reinforce, change, establish, or overturn legal precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
. If a court decides that an opinion should be published, the opinion is included in a volume from a series of books called law report
Law report
Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
s (or reporters
Law report
Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
). Published opinions of courts are also collectively referred to as case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, which is one of the major sources of law
Sources of law
Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters.It also refers to the sovereign or the state from which the law derives its force or validity....
in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems.
Memorandum opinion
Not every case decided by a higher court results in the publication of an opinion; in fact most cases do not, since an opinion is usually only published when the lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
is being interpreted in a novel way, or the case is a high-profile matter of general public interest and the court wishes to make the details of its ruling public.
In the majority of American cases, the judges issue what is called 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 re-interpret the law, and cannot be invoked in subsequent cases to justify a ruling. Opinions, on the other hand, always establish a particular legal interpretation.
Legal opinions of counsel or government law officers
In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and other common law countries, a legal opinion also refers to written legal advice on a point of law issued by either a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
(often referred to as "counsel's opinion") or occasionally a senior government law officer, such as an attorney general
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
.
The latter form of opinion is sometimes made available to the public either because of public pressure (see for example Lord Goldsmith's opinion on the Iraq War, Yoo memo), or because a general clarification of the law is called for (see for example, the Yorke–Talbot slavery opinion). In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, several state attorneys general issue attorney general's opinions.
Several areas of commercial practice call for formal legal opinions of counsel. The Legal Aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
scheme in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
requires a legal opinion showing reasonable prospects for success before the Legal Aid board will fund any claim. Insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
policies for professional negligence
Professional negligence
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the...
will frequently require an opinion of counsel before the insurer is required to pay out on any putative claim (sometimes called a QC clause
QC clause
In insurance law, a QC clause is a clause in an insurance policy that provides that an action against the insured is not to be contested unless a Queen's Counsel advises that the defence has a reasonable prospect of success...
, when it must be an opinion of leading counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
).
Legal opinion in commercial transactions
In commercial transactions, particularly in the context of financing, the lender will require an opinion as to the corporate capacity of the borrower and enforceability of the transaction documents the borrower is intended to enter into. This type of opinion is generally issued by the borrower's counsel or the lender's counsel, depending on the ethical rule governing the issuance of those opinion applicable to the jurisdiction.See also
- Appellate courtAppellate courtAn appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
- Case lawCase lawIn law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
- Law reports or reportersLaw reportLaw reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
- Memorandum opinionMemorandum opinionA memorandum opinion or memorandum decision is a judicial opinion that does not create precedent, persuasive or mandatory in some jurisdictions. A memorandum is often brief and written only to announce judgment in a particular case...
External links
- R. C. A. White, I. Boussiakou Separate opinions in the European Court of Human Rights