If your lawyer gives you an opinion, how can you evaluate your confidence in that opinion?
Lawyers will offer a variety of advice throughout a dispute: the initial opinion as to your prospects of success, what legal strategy you should take, whether a particular argument will be effective, and so on.
Even the best lawyer won’t be able to achieve the outcome you want if they arrive at roadblocks due to making decisions based on incomplete or incorrect information.
As a client, you need to ensure that your confidence in your lawyer’s advice is more than just emotional. You need to be able to assess whether your lawyer’s opinion is flawed in any way.
But how?
The starting place is to ask how the opinion was formed. Invariably, that opinion will be formed by the lawyer (consciously or unconsciously) doing four things:
1. Identifying key facts;
2. Making a series of assumptions about your situation, facts, or any missing information;
3. Relating this to the relevant law; and
4. Applying a process of reasoning to connect the key facts and assumptions to the relevant law.
Understanding this model of thinking provides you with a system for testing the accuracy of your lawyer’s opinion. If any of these four things are wrong, then your lawyer’s opinion is likely to be wrong.
Let’s investigate further.
1. Key facts
The basis of any legal opinion stems from the facts.
Based on the information you provide about your dispute, your lawyer will identify what pieces of information they believe are most relevant to the issue. Lawyers will call these ‘key facts’.
Since legal strategies are largely determined by the availability of key facts, any oversight or misunderstanding here – either where facts are wrong, or facts are overlooked – can significantly impact your outcome.
Ask:
What are the key facts you are relying on?
Is there any ambiguity surrounding the facts?
By clarifying the facts, you can assess whether your lawyer’s opinion is consistent with your view of the relevant information.
2. Assumptions
Lawyers won’t always have perfect information when forming an opinion.
In certain situations, this can lead to assumptions being made to interpret incomplete or unclear information. Assumptions can also be made to combine pieces of information that are often connected. For example, assuming that all parties involved in a transaction have been validly incorporated and exist legally (which carries certain legal consequences).
Any flawed assumptions can lead to inaccurate conclusions, so it is important to check if any assumptions are being made by your lawyer, either consciously or unconsciously.
Ask:
Have any assumptions been made about missing facts or details?
What are the potential risks if these assumptions are incorrect?
How would the opinion change if these assumptions don’t hold?
These questions can help you validate or challenge any assumptions. They may also prompt your lawyer to seek further information to reduce the risks of any assumptions, and ensure they are reasonable and sustainable.
3. Relevant law
Together, facts and assumptions will inform your lawyer’s view of the relevant law/s. That is, what legislation or past cases will provide the authority to determine the outcome of your dispute.
You don’t need to familiarise yourself with legal jargon here. You just need to understand, in language that makes sense to you, what the relevant law means, so that you can make transparent the reasoning process of the lawyer.
Ask:
What is the relevant law?
What does the relevant law mean?
Are there any recent changes or updates in the law that could affect this opinion?
How have similar cases been decided in the past?
Are there any conflicting laws or legal precedents that we should be aware of?
4. Reasoning Process
This is where a lawyer’s analytical skills come into play.
Through a process of reasoning, your lawyer will identify how the relevant law applies to those key facts and assumptions, to reach a conclusion about the likely legal consequence.
You want to make sure your lawyer’s reasoning is logical, sensible, and rational. This is the stage that may require more than just fact-checking.
Ask:
Can you walk me through your reasoning step-by-step?
What are the strongest and weakest points of our argument?
Are there any alternative theories or arguments that could apply?
If the reasoning process does not make sense, is not logical, is not sensible, or is not rational, then the opinion is likely to be wrong.
Ultimately, if you’re satisfied that you’ve asked all the right questions for each of those elements, and you can understand a logical and sensible reasoning process, then you should have every confidence in your lawyer’s opinion – improving your chances of achieving the best possible outcome.
To start the pathway for resolving your commercial or tax dispute, contact Aptum.
