The ultimate step taken by the court is commonly called a decision, or, in common law cases, a judgment; and in equity cases, a decree; where the opinion is unanimous it is, in America, often termed a "per curium opinion." In England judgment is commonly used for opinion., and "per curium" is sometimes applied to any opinion of the whole court. Brief Making, by Lile and others, 2d Ed. by R. W. Cooley, 102.
A declaration, usually in writing, made by a counsel to the client of what the law is, according to his judgment, on a statement of facts admitted to him.
An opinion is in both the above cases a decision of what principles of law are to be applied in the particular case, with the dif ference that judicial opinions pronounced by the court are law and of authority, while the opinions of counsel, however eminent are merely advice to his client or argument to the court.
Where there are several judges, and they do not all agree in the disposition of the cause, the opinion of the majority is termed the opinion of the court. The opinion of the minority is termed the dissenting opinion. The opinions of the courts, collected and pro vided with such preliminary statements or facts and of the arguments of counsel as may be necessary in each to an under standing of the decision, make up the books of reports.
Opinions are said to be judicial or extra judicial. A judicial opinion is one which is given on a question which is actually in volved in the matter brought before the judge for his decision; an extra-judicial opinion is one which, although given by a judge in deciding a case, is not necessary to the judgment ; Vaugh. 382; 1 Hale, Hist. 141; and, whether given in or out of court, is no more than the prolatum of him who gives it, and has no legal efficacy ; Steiner v. Coxe, 4 Pa. 28. Where a point is essential to the decision rendered, it will be presumed that it was duly considered, and that all that could be 'urged for or against it was pre sented to the court. But if it appears from the report of the case that such point was not taken or inquired into at all, there is no ground for this presumption, and the authority of the case is proportionably weak ened; Molony v. Dows, 8 Abb. Pr. (N. Y.) 316.
Where two or more points are discussed in the opinions delivered, on the decision of a cause, and the determination of either point in the manner indicated in such opin ions would sustain the judgment pronounced by the court, the judges concurring in the judgment must be presumed to have concur red in such opinions upon all the points so discussed, unless some dissent is expressed or the circumstances necessarily lead to a different conclusion ; James v. Patten, 6 N.
Y. 9, 55 Am. Dec. 376. Where a judgment is reversed upon a part only of the grounds on which it went, it is still deemed an author ity as to other grounds not questioned.
The opinion of the court assigning rea sons for its conclusions cannot be treated as a special finding; British Q. Min. Co. v. Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147.
CounSel should, in giving an opinion, as far as practicable, give, first, a direct and positive opinion, meeting the point and ef fect of the question, and, if the question proposed is properly divisible into several, treating it accordingly. Second, his reasons, succinctly stated, in support of such opinion. Third, a reference to the statutes or deci sions on the subject. Fourth, when the facts are susceptible of a material difference in statement, a suggestion of the probability of such variation. When an opinion is sought as a guide in respect to maintaining an ac tion or defence, some other matters should be noticed : as, Fifth, any necessary pre cautionary suggestions in reference to the possibility of a fatal defect in the evidence, arising from the nature of the case. Thus, where some important fact is stated as rest ing principally on the statement of the party interested, if by the law of the place such party is incompetent to testify respecting it, a suggestion ought to be made to inquire how that fact is to be proved. Sixth, a sug gestion of the proper mode of proceeding, or the process or pleadings to be adopted.
In English and American law, the opin ions of counsel, however eminent, are not entitled to any weight with the court, as evidence of the law. While the court will deem it their duty to receive such opinions as arguments, and as such entitled to what ever weight they may have, they will not yield to them any authority; Steiner v. Coxe, 4 Pa. 28, per Gibson, C. J. In many cases, where a client acts in good faith under the advice of counsel, he may on that ground be protected from a liability which the law might otherwise have imposed upon him.
The attorney-general of the United States gives to the president his opinion and advice upon questions of law whenever required; and upon the request of the head of any of the executive departments of the govern ment, he is required to give his opinion on questions of law arising in the administra tion of the department; R. S. § 354, 356.
See JTJDGE; EXPERT; OPINION OF JUDGES; PRECEDENT; LEGISLATIVE POWER.