Opinion

A judge's written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment.

A collection of reasons delivered by a judge for giving the judgment he is about to pronounce the judgment itself is sometimes called an opinion.

Such an opinion ought to be a perfect syllogism, the major of which should be the law; the minor, the fact to be decided and the consequence, the judgment which declares that to be conformable or contrary to law.

Opinions are judicial or extra-judicial; a judicial opinion is one which is given on a matter which is legally brought before the judge for his decision; an extra-judicial opinion, is one which although given in court, is not necessary to the judgment.; and whether given in or out of court, is no more than the prolatum of him who gives it and has no legal efficacy.

practice. A declaration by a counsel to his client of what the law is, according to his judgment, on a statement of facts submitted to him. The paper upon which an opinion is written is, by a figure of speech, also called an opinion.

The counsel should as far as practicable give, 1. A direct and positive opinion, meeting the point and effect of the question and separately, if the- questions proposed were properly divisible into several. 2. The reasons, succinctly stated, in support of such opinion. 3. A reference to the statute, rule or decision on the subject. 4. When the facts are susceptible of a small difference in the statement, a suggestion of the probability of such variation. 5. When some, important fact is stated as resting principally on the statement of the party interested, a suggestion ought to be made to inquire how that fact is to be proved. 6. A suggestion of the proper process or pleadings to be adopted. 7. A suggestion of what precautionary measures ought to be adopted.

evidence. An inference made, or conclusion drawn, by a witness from facts known to him,

In general a witness cannot be asked his opinion upon a particular question, for he is called to speak of facts only. But to this general rule there are exceptions; where matters of skill and judgment are involved, a person competent, particularly to understand such matters, may be asked his opinion, and it will be evidence. For example, an engineer may be called to say what, in his opinion, is the cause that a harbor has teen blocked up. A ship builder may be asked his opinion on a question of sea-worthiness.

Medical men are usually examined as to their judgment with regard to the cause of a person's death, who has suffered by violence. Professional men are, however, confined to state facts and opinions within the scope of their professions, and are not allowed to give opinions on things of which the jury can as well judge.

The unwritten or common law of foreign countries may be proved by the opinion of witnesses possessing professional skill.
   

This entry contains material from Bouvier's Legal Dictionary, a work published in the 1850's.

EVIDENCE, OPINION - Testimony from persons (Expert Witnesses) who, because of education or experience, are permitted to state opinions and the reasons for their opinions.

In libel and defamation actions it's a general rule that no remedy can be had for a statement that was issued in the form of an opinion.

The distinction between a statement of fact and one of opinion is frequently difficult. In characterizing a statement, courts must look at it not as lawyers and judges but by placing ourselves in the position of the hearer or reader, and determine the sense or meaning of the statement according to its natural and popular construction. In short, the measure is not the effect of the statement on a mind trained in the law, but by the natural and probable effect upon the mind of the average reader. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.) Accordingly, "what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)

"For these reasons, California courts have developed a 'totality of the circumstances' test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. Where the language of the statement is 'cautiously phrased in terms of apparency,' the statement is less likely to be reasonably understood as a statement of fact rather than opinion. Next, the context in which the statement was made must be considered. Since '[a] word is not a crystal, transparent and unchanged, [but] is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,' the facts surrounding the publication must also be carefully considered.

"This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. '"[T]he publication in question must be considered in its entirety; '[i]t may not be divided into segments and each portion treated as a separate unit.' It must be read as a whole in order to understand its import and the effect which it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it. If the publication so construed is not reasonably susceptible of a defamatory meaning and cannot be reasonably understood in the defamatory sense, [the statement is not actionable]. (Baker, supra, 42 Cal.3d at pp. 260-261.)

Given the trial court's special role in ruling on dispositive motions in libel cases (the distinction between fact and opinion is a question for the court, not the jury) (Baker, supra, 42 Cal.3d at p. 260).

The reason given for a court's judgment, finding or conclusion, asopposed to the decision, which is the judgment itself. When the court iscomposed of more than one judge or justice, and more than one opinion has beenwritten in a given case, the opinion that expresses the view of the majority ofthe judges presiding, and thus announces the decision of the court, is referredto as the majority opinion. A concurring opinion is a view basically in accordwith the majority opinion, but written to express a somewhat differentperception of the issues, to illuminate a particular judge's reasoning or toexpound a principle which he or she holds in high esteem. An opinion thatconcurs "in the result only" is one that rejects the reasoning and conclusionsconcerning the law or the facts on the basis of which the majority reached itsdecision, and that expresses a different view that has coincidentally led thejudge or justice to recommend the same disposition as was agreed upon by themajority. A dissenting opinion is a view that disagrees with the dispositionmade of the case by the court with the facts or law on the basis of which thecourt arrived at its decision, or the principles of law announced by the courtin deciding the case. Opinions may also be written that express a dissent "inpart."