'Mend Your Speech . . . Lest You May Mar Your Fortunes'*: Some Thoughts on the Drafting of Closing Opinions

摘要

Back in the 1980s when Scott FitzGibbon and I were working on the first edition of our book, suits against opinion givers were rare and the few reported decisions all came out the same way-the opinion giver always won. That led us to conclude that the risk of an opinion giver being sued-much less of losing a case-was small and that professionalism, not a fear of liability, was what motivated lawyers to take opinions as seriously as they did. Today, the litigation front has changed. Suits no longer are rare (reported decisions being only the tip of the iceberg), and recipients typically seek damages running to the tens and sometimes hundreds of millions of dollars. The increased risk of litigation and the magnitude of the claims opinion recipients are now asserting, together with the negative publicity and disruption (both personal and professional) a suit can cause both the lawyers directly involved and their firms, have combined to give law firms ample cause for concern-and that concern has spurred changes in how firms approach opinions and how they word the opinions they give.