Who is this guide for?
- Junior lawyers learning how to write legal advices in a commercial law context.
- Experienced lawyers looking for a good starting point to teach their juniors how to write advices.
Overview
I recently found a draft advice I wrote as a junior lawyer and it’s really different to how I would write an advice today.
Advice writing is a skill that comes with experience. But there are quite a few things that junior lawyers can do straight away to really stand out in the drafts they present to their supervising colleagues.
In this guide, my goal is to set out the foundational skills and tips for advice writing that is transferable across different practice areas. It covers:
- what the purpose of a good legal advice is;
- the usual process that occurs from the time the client requests the advice to the finalisation of the advice;
- an example advice that new lawyers would prepare (setting out the common areas of improvement); and
- an example advice that experienced lawyers would prepare (setting out the structure and steps for improving the new lawyers’ advice).
The purpose of a good legal advice
A well-written legal advice provides clear and concise guidance to the client on the legal issues at hand and offers practical solutions tailored to the client’s specific needs and circumstances.
The advice should be based on a thorough understanding of the relevant law and regulations, as well as any relevant facts or documents provided by the client.
It should also take into account the client’s commercial or strategic objectives, and should provide a clear explanation of the risks and benefits associated with different courses of action.
Ultimately, the goal of legal advice is to enable the client to make informed decisions that minimize legal risks and achieve their desired outcomes.
The process of preparing an advice
The process from starting to finalising a draft advice usually looks something like this:
- The firm receives a request for advice from the client.
- You would have a meeting with the client to discuss the request (and clarify the question), timing, obtain background information (including assumptions), understand the outcomes and query how the client is using this advice (e.g. as part of a board paper) to align on format.
- You prepare a draft advice based on the client’s instructions and the information provided.
- Before starting on your draft, it’s a good idea to ask your supervising colleague whether there’s an example advice that they like. This can help you understand and align the writing style as well as the preferred structure.
- When preparing your draft, it’s a good idea to prepare a skeleton of the advice and your initial thoughts to check with your supervising colleague that you’re heading in the right direction.
- If there are any key assumptions that your advice relies upon, it’s good to check this with the client during the preparation of the advice.
- Once you’ve prepared a first draft, give your supervising colleague time to review. There may be further questions or amendments involved in finalising your first draft.
- Once you and your supervising colleague(s) are happy with the draft advice, this is issued to the client.
- Further discussion / clarification with the client may follow. Sometimes the client may have supplementary questions.
- When you have included any clarifications or supplementary questions in the draft advice, this is finalised and issued to the client.
Example advice newer lawyers might prepare
Let’s say you’re a construction lawyer acting for a homeowner. Your client has currently engaged a builder to build their house. The house itself has been completed and handed over but your client has found defects in the work that the builder has completed (set out in a report that their Superintendent has prepared). The builder is currently completing landscaping works at the property. Your client has asked you for advice on how to get the builder to rectify the defects or otherwise claim against the builder for those defects.
In my early years, I might have prepared an advice that looks something like this:
Areas for improving the legal advice
When we look back at the purpose of a good legal advice we’ve set out above, some of the common issues with this advice are:
- Lack of specificity: The advice is quite generic and doesn’t provide specific details about the defects and deficiencies in the construction work or the legal remedies available. In particular, it doesn’t refer to the report, any specific provisions of the contract, or the commercial context (i.e. that the builder is still being engaged to carry out landscaping work).
- Absence of clear recommendations: The advice mentions several legal options available to the client but doesn’t provide a clear recommendation as to which option is best suited for the client’s specific situation. This could leave the client feeling unsure about what to do next.
- Limited assessment of potential outcomes: The advice briefly touches on the fact that pursuing legal action can be time-consuming and expensive, but it doesn’t delve into the potential outcomes of each option or the likelihood of success for each option. This could leave the client feeling uncertain about the potential risks and benefits of each option.
So how could we make this better?
Tips for drafting a better legal advice
Now with a few years of experience, here’s how I try to approach advice writing (and how this could improve the example advice set out above):
1️⃣ Structure the advice to provide the answer up-front and let the reader ‘unwrap’ the extra info if they keep reading
A general structure would look something like:
🔹 Advice requested
This restates the question that the client has asked. In your initial discussions with the client, you may find that question that they asked you for advice on is actually different than the real question they needed to ask to reflect the facts and get the outcomes that they want.
Whether or not the question has evolved with your discussions with the client, it should be restated so that it’s clear to the reader what is being answered. Especially when the instructing client might pass on the advice to somebody else to read without the benefit of your discussions (e.g. their colleagues).
🔹 Summary and recommendation
This summarises your advice and provides a clear recommendation of what you consider to be the best option. It should set out the steps involved in the recommended option and a concise explanation of why you recommend it.
Sometimes it’s helpful to set out a ‘traffic light’ approach or a table that ranks the various options along with the reasons why.
Numbered headings and signposts (e.g. “Section 1 sets out X, Section 2 sets out Y…) also help with the ‘unwrapping’. It’s also good to signpost the sections further in your advice that sets out the detailed arguments supporting your recommendation (e.g. as set out in Section X below).
Ideally, the client could just pick up this section (along with the ‘advice requested’ section) and have a clear understanding of what they should do – based on your recommendation.
🔹 Background / assumptions
This sets out the background facts, documents you’ve relied on, as well as any assumptions that underpin your advice.
Again, the goal is for somebody to be able to pick up the advice and read it without the benefit of all the discussions that you’ve had, or the involvement in the project that your client has had.
Any assumptions set out in the advice should not come as a surprise to your client. If they are fundamental to your advice, then they should be discussed with your client beforehand. It can be frustrating to receive an advice that contains assumptions which are just wrong and undermines the whole advice you have paid for.
🔹 Detailed arguments in support
This sets out the detailed reasoning behind your option. It could refer to specific sections of the contract, legislation or other material.
Where possible, it’s good to provide extracts to those referenced sections so that the client doesn’t have to flick between documents.
🔹 Conclusion
This section restates the recommendation and the ‘next steps’ that the client can follow, or areas that you can provide further assistance in (e.g. preparing a formal legal claim).
🔹 Schedules / attachments for supporting documentation
Any referenced material in your advice can be set out in schedules or attachments to the advice. If you have prepared any flowcharts, tables etc. for the advice, then they can also be included here.
2️⃣ Provide a recommended course of action, not just a summary of issues and choices
Instead of “from our analysis of the contract, there are three ways you could claim for time and cost relief in the event of a cyclone – please let us know which option you would like to undertake and we can help prepare the claim”.
It would sound more like “in our view, the best avenue for claiming time and cost relief under the contract in the event of a cyclone is [explain Option A]. This would involve [set out the steps] and [presents the best prospects of success while preserving the commercial relationship]. Alternatively, the claim could also be supplemented by [Options B and C] – however these present the following additional risks beyond [Option A]…”
3️⃣ Write the advice as a standalone document so the reader doesn’t need to flick between other documents
This could mean including a definitions section or extracting key parts of the contract / legislation / case law.
4️⃣ Plain English – write like a normal human being
Read the advice out loud. If it sounds weird – or you’re struggling to breathe – rewrite it.
5️⃣ Link to the commercial context
With any contractual regime, regulatory rule or case law principle – tie it back to the commercial problem / client’s situation.
For example: “While the above course of action would result in additional costs for [client], it would provide [up to 8 weeks of] time relief which we understand is the key concern given the size of the liquidated damages that [client] would incur under the contract.”
6️⃣ Not just sentences and paragraphs
These days, I use more diagrams, flowcharts and tables in my advices – esp. for summarising contractual processes.
Example advice that experienced lawyers might prepare
If we take the tips and steps in this guide and apply it to the same situation as before, here’s what you might end up with (as an improvement to the newer lawyer’s advice):
Final thoughts
Hopefully, you’ve picked up some practical tips on writing advices from this guide. Again, as a junior lawyer, there are technical skills and some legal reasoning that you will only pick up through experience.
But if you nail these foundational skills and steps, then you’ll be adding value from day 1 and free yourself to develop those ‘experience-based’ skills instead of just the basics.
Looking for some help with training early career lawyers?
For the past 3 years, I’ve been writing practical how-to guides for junior lawyers and providing training for law firms both large and small. If you’d like to work with me to tailor a training program for your organisation’s learning and development needs, please send me an email at jason.feng@live.com.au.
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