Having analysed the basic facts, three further stages of factual analysis are important in preparing to write an opinion, because they are all closely related to exercising your judgement on the chances of the case succeeding.
- Identify any gaps in the facts.
Almost certainly your instructions will not give you all the facts, as it would be very expensive and time consuming for instructing clients or your boss to collect everything before sending a case to you. Your opinion will have to be based on the facts that are available. Gaps in the facts are important first because they may prove a weakness in developing a legal case, and secondly because in your opinion you will need to indicate to instructing solicitors what extra information should be sought. - Identify which facts are probably agreed, and which are probably in dispute.
The point is that a case can be most firmly founded on facts that are agreed. Where facts are in dispute, your case is open to challenge and is less strong. Again this will be directly relevant to exercising your judgement on the case. - Identify which facts you have evidence of
This is especially important in relation to facts in issue—if you have a fact in issue on which you have little or no evidence your case is very weak. Again this will be important when you come to exercise your judgement. Also, your opinion should indicate to instructing clients where evidence is required. - Identify which facts you need evidence for
Where there are facts which are disputable and you have no evidence, one way or the other, you need to carry some detective work and gather the evidence.