What is a legal opinion? Who can prepare a legal opinion? How to prepare a legal opinion?
Considering that many lawyers may never have drafted a legal opinion, especially since many work exclusively in the litigation area of law, this article will elucidate the best techniques for drafting one. Although there is no mandatory format, there is a certain structure to be followed. Understand it better in this article!
What is a legal opinion and what is its purpose?
It is known that a legal opinion is a technical instrument that presents the analysis and opinion of experts in a specific field on a related topic.
However, an opinion can only be signed and developed exclusively by lawyers (article 1, item II, of the Statute of the Bar Association), consisting of a technical study on a specific matter of law.
Thus, a legal opinion, being a document that presents a lawyer's technical view on a specific matter, is part of the advisory area of law practice.
It should be noted that the opinion does not have the status of a judicial ruling, but rather represents the perspective of the lawyer who prepared it based on legal and technical grounds, aiming to understand or refute the controversy presented.
A legal opinion is generally requested in the following situations:
- Controversial cases with wide financial repercussions;
- Cases that require a more sophisticated procedural strategy, especially given the complexity of the subject matter involved (e.g., family law);
- Comparative law cases, as commonly occurs in arbitration, where the parties – usually foreign – have an interest in understanding Brazilian rules on the subject under discussion;
- Corporate-related demands, aimed at supporting decisions by shareholders, directors, investors, and deliberative bodies;
- Demands from the public sector, aimed at supporting administrative decisions made by managers or political agents;
- Draft laws in the legislative houses.
Thus, the function of a legal opinion is essentially to interpret and explain the effects of legal norms on a specific case.
What are the different types of legal opinions?
It should be noted that there are 03 (three) models of legal opinions, namely:
Optional: This does not create any obligation for the applicant regarding its content, and they may or may not follow the instructions provided.
Mandatory: which does not have a binding character in relation to its content, but rather serves as a prerequisite for the final execution of the act (example: when a law requires a legal opinion on all appeals submitted to the Chief Executive).
Binding: which has a mandatory nature in relation to its content and legal conclusion, with the applicant not having the option to accept or reject the legal guidance.
Essential elements of a legal opinion
Initially, the legal opinion should be understandable to everyone, including the applicant. However, it is of utmost importance that the essential legal language for its justification is not ignored, in addition to the indispensable clarity of its central objective.
Therefore, it is also necessary that, at the end of the reading, it is understandable to everyone (the applicant and mere readers) whether it is favorable or unfavorable.
It is also essential that the legal opinion indicate the legal basis, as well as explain the doctrinal and jurisprudential understanding of the proposed issue, especially since these are essential elements for the acceptance of legal arguments.
Although there is no established standard for drafting a legal opinion, there are essential elements for its structure, namely:
- Title: should generally be centered;
- Addressing: with the name(s) of the applicant(s);
- Abstract: indication of the main keywords of the topic covered;
- Summary: indication of the topics covered in the report (this is optional, but quite valid, especially in lengthy reports);
- Report: summary of the requested consultation, indicating the constitutive facts, as well as the process (if any) or the information provided by the applicant(s);
- Legal basis: the actual legal arguments, indicating the relevant legislation, case law, legal doctrine, as well as technical information (the lawyer's expertise);
- Conclusion: response to the applicant(s)' request(s), indicating whether they are in favor of or against it. For example: "In light of the above, we are in favor of/unfavorable to these arguments. This is the opinion."
- Place, date, and signature of the expert (lawyer).
Example of a legal opinion
Having outlined the essential elements for drafting a legal opinion, let's look at a practical example:
LEGAL OPINION No. 00001
APPLICANT: Lincoln Philipe Martins
SUMMARY: Compensatory alimony. Transitional alimony. Asset balance. Breakup of the union. Sudden reduction in the spouse's socioeconomic standard. Serious economic and financial imbalance.
SUMMARY:
Report……………………………………………………………………………………………..1
Justification……………………………………………………………………………………2
Conclusion……………………………………………………………………………………………3
REPORT:
On May 10, 2022, Mr. Lincoln Philipe Martins requested a legal opinion analyzing the possibility of claiming compensatory alimony, particularly in light of the breakdown of his marital union. To this end, and with a view to preparing the opinion, he submitted the necessary documentation (Annexes I and II) and inquired, considering the relevant legislation, about the likelihood of success in judicial proceeding no. 0000000-00.2022.8.07.0016, currently pending before the 1st Family Court of the Judicial District of Brasília/DF.
JUSTIFICATION:
Compensatory alimony, also known as transitional alimony, aims to restore the financial balance after the end of a relationship, where inequality was concealed by married life.
Rolf Madaleno, when discussing the matter, highlights the appropriateness of compensatory alimony:
“The purpose of compensatory alimony or economic compensation is to indemnify, for a period of time or not, the economic imbalance caused by the sudden reduction in the socioeconomic standard of the spouse deprived of assets and share of the marital property, without aiming for economic equality between the couple who dissolved their relationship, but seeking to reduce the deleterious effects arising from sudden social indigence, caused by the absence of personal resources, when all income was maintained by the partner, (...) such alimony aims to enable compensation for the spouse who renounces their professional expectations for the sake of the family and, with the breakdown of the union, sees their economic and social condition decline significantly.”
In this same vein, Maria Berenice, when lecturing on the subject, clarifies:
“(…) Ultimately, their purpose is not to meet the creditor's subsistence needs, but to correct or mitigate a serious economic-financial imbalance or abrupt change in the standard of living of the spouse deprived of assets and share of the marital property. Their origin lies in the duty of mutual assistance (CC 1.566 III) and in the condition of spouses, partners and those responsible for the family's expenses that the spouses acquire with marriage (CC 1.565). This bond of solidarity exists not only between spouses, but also between partners (CC 265). If the end of the common life produces an economic imbalance between the couple, compared to the standard of living enjoyed by the family, the establishment of compensatory alimony is appropriate. The more fortunate spouse or partner must ensure that the former spouse is economically rebalanced. They can even be set as a form of preliminary injunction.”
In this regard, the Court of Justice of the Federal District and Territories (TJDFT) has expressed itself, as follows:
CIVIL. ALIMONY ACTION. INTERLOCUTORY APPEAL. PROVISIONAL ALIMONY. ALIMONY OBLIGATION SET AT ONE MINIMUM WAGE. REASONABLENESS. PROOF OF NEED AND ABILITY. NEED FOR FURTHER EVIDENTIARY INVESTIGATION. DECISION UPHELD.
- It is recognized that divorce without the division of common property authorizes the imposition of an obligation of mutual assistance, and that the exclusive possession of property by one of the former spouses imposes the provision of alimony, referred to in legal doctrine as compensatory alimony, as it is intended to compensate for the economic imbalance caused by the marital breakdown, until the patrimonial balance is restored with the proper division of assets.
- Alimony must guarantee what is necessary for the maintenance of the person receiving it, ensuring their means of subsistence so that they can live with dignity. According to the provisions of article 1.694, § 1, of the Civil Code, "alimony must be fixed in proportion to the needs of the claimant and the resources of the person obligated."
- In this case, it is observed that the division of the couple's assets has not yet been carried out, that the husband holds possession of common property, and that the wife's withdrawal from the business partnership resulted in the suspension of the reported amount of 2 (two) minimum wages, thus causing her a reduction in income.
3.1. The preliminary stipulation of alimony in the amount of one minimum wage is reasonable, once the need of the recipient and the ability of the payer to pay have been demonstrated. - Appeal dismissed. (Judgment 776077, 20130020286423AGI, Rapporteur: JOÃO EGMONT, 5th Civil Chamber, date of judgment: 2/4/2014, published in the DJE: 15/4/2014. Page: 134)
Along the same lines, the Superior Court of Justice states, verbatim:
CIVIL PROCEDURE. CIVIL LAW. FAMILY LAW. JUDICIAL SEPARATION. ALIMONY. NEED/ABILITY BINOMIAL. ARTICLE 1.694 OF THE BRAZILIAN CIVIL CODE OF 2002. END DATE. COMPENSATORY ALIMONY (COMPENSATORY PAYMENT). POSSIBILITY. ECONOMIC AND FINANCIAL BALANCE OF THE SPOUSES. JUDGMENT ULTRA PETITA NOT CONFIGURED. VIOLATION OF ARTICLE 535 OF THE BRAZILIAN CODE OF CIVIL PROCEDURE NOT DEMONSTRATED. (...) - The so-called compensatory alimony, or compensatory payment, is not intended to meet the subsistence needs of the creditor, as is the case with alimony regulated by article 1.694 of the Brazilian Civil Code of 2002, but rather to correct or mitigate a serious economic and financial imbalance or an abrupt change in the standard of living of the spouse who lacks assets and a share of the marital property.
- Alimony payments between former spouses should, as a rule, be fixed for a specific term, ensuring the recipient sufficient time for their entry, re-entry, or advancement in the job market, enabling them to maintain, through their own efforts, a social status similar to that during the relationship.
- The state court, based on extensive factual and evidentiary review, determined that the appellee, despite being a young person with a higher education, does not have the full capacity for immediate entry into the job market, and that the breakdown of the marital relationship has caused her a clear economic and financial imbalance.
- Special appeal partially admitted and, in that part, partially granted to set the end date of the alimony obligation. (REsp 1290313/AL, Rel. Minister ANTONIO CARLOS FERREIRA, FOURTH PANEL, decided on 11/12/2013, DJe 11/07/2014)
Thus, it is clear that compensatory alimony aims to address the abrupt and involuntary discrepancy in the financial situation of the spouse with fewer resources, in order to temporarily guarantee a minimum standard of living necessary for their dignity.
CONCLUSION
In light of the foregoing, it is understood that the request for compensatory alimony is perfectly plausible, going against established doctrine and jurisprudence, which is why this opinion is favorable to the applicant's request.
That's the opinion.
Brasilia, May 20, 2022.
Lincoln Philipe
OAB/DF 00.123
The closing thought
In light of the lessons presented above, it is evident that, in addition to mastery of the subject matter, the way the report is structured is fundamental to understanding the unique opinion of the reviewer.
Furthermore, it is worth emphasizing the crucial importance of lawyers improving their skills in drafting legal opinions, both for those who wish to work as consultants and for those who aspire to new positions in the market, especially since it is a constantly growing niche in "Law 4.0".
References
MADALENO, Rolf. Family Law Handbook. Forense, 2018. Kindle version, p. 9776
