LL.B.

III: LEGAL DRAFTING NOTES

Q. Describe the process of Drafting "From start to finish"?
This chapter considers the various matters which form part of the
process of drafting legal documents, from the moment the client
gives instructions which will require the production of a legal
document, to the time when that document is executed. As drafting can involve
anything from a single page document (for example, a simple will), to documents of
100 pages or more (for example, an agreement for the sale of a business), the
complexity and time required to complete any particular stage of the drafting
process will vary. In all cases, the drafting process will involve two main stages,
namely, the thinking stage and the composing stage. The former is concerned with
analysing the material and assembling the legal concepts which are to be included
in the document, whilst the latter is concerned with the actual preparation of the
document. The time and effort involved in each stage may not be represented by
the
number of pages in the finished document.

LL.B. PART III: LEGAL DRAFTING NOTES:

Q. How Review and Amendment of a Draft done, explain in detail?
Review and amendment of drafts
The review and amendment of documents prepared by others in
draft calls for as much in the way of drafting skills as the
composition of such documents. This process may be necessary
where an agreement is to be made between two or more parties,
such as a lease or an agreement for the sale of business assets.
The reviewer will have to deal with draft documents of variable
quality and, in some instances, documents produced by laymen
including the client. In reviewing, it is necessary to check a
document thoroughly to ensure the drafting techniques and
language used do not defeat its objectives, especially if it is known to have been
produced by someone without legal training.
In the course of reviewing a draft document, it may be
necessary to make extensive amendments, particularly to ensure
that the clients interests are properly protected. The amendments will have to be
tailored to the style adopted in the draft document and, if it is poorly drafted,
considerable time will be needed to pick up errors and to include any amendments
so that they fit into the scheme of the document. The final draft must, of course,
reflect the interests and instructions of the client, as one of the parties to the
agreement. For example, a lease drafted by the landlords lawyer will be reviewed

by the tenants lawyer, not only to ensure that as a= draft it makes sense, but also
to ensure that it contains all the appropriate terms which are in the tenants
interests and that it meets the tenants instructions to him.

LL.B.PART III: LEGAL DRAFTING NOTES

Q. What do you understand by "Presentation and Division" of Legal Drafting?
Drafting is not only a matter of collecting concepts into a legal
document and ensuring that they are expressed in unambiguous
words. It also involves the presentation of these concepts in a way which is logical
and also meets with the customary manner of presenting documents of a similar
nature. A legal document may, depending on its length, need to be divided into
sections, clauses, paragraphs and sub-paragraphs so that the contents can be
referred to easily on any particular matter, without the need for a reader to go
through the whole document.

LL.B. PART III : LEGAL DRAFTING NOTES

Q: How one can Acquire drafting skills?
The traditional method of acquiring drafting skills is through articles or some similar
apprenticeship, or learning on the job. Most practising lawyers probably acquired
their drafting skills in these ways. In the past, these were the only ways that
drafting skills could be acquired, as few, if any, courses were organised on the
subject it was hardly recognised as a subject and there were few written guides
on drafting. Consequently, the only sources for acquiring drafting skills were the
guidance of an experienced practitioner, or what could be gleaned from books of
precedents and their notes. The former were usually too busy to be able to give
much of their time, whilst the latter are not intended to be teaching aids, but
examples of documents and clauses that might be used in particular transactions.
To some extent, precedents assume a certain degree of proficiency in drafting,
because it will be necessary to adapt them to meet the particular requirements of a
client.
Drafting, like any skill, can only be acquired through practice. A
knowledge of drafting rules, although important, is no more likely to result in good
drafting than a knowledge of the theory of music is likely to result in an
accomplished pianist. Constant practice is
required. Most lawyers regard themselves as good drafters, but
executed legal documents are testimony to the fact that, as with
most skills, drafting is practised at varying degrees of proficiency. A drafter is always
learning and it is likely that, if he or she reviews drafts produced many years ago,
some concepts would be expressed in a different way, and in some instances earlier

efforts might be considered embarrassing. A drafter might also find that his or her
drafting style has changed, and that matters which were felt in earlier times to be
difficult to draft are now simple. This does not mean that the earlier draft was
unacceptable or incompetent, but simply that the drafter is always learning through
experience.

Pleadings are statements in writing of each party containing contentions of each party and detail
of his case . Pleadijnd is defined in order 6 of the code of civil procedure as plaint or written
statement.
Plaint
Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause
of action with all necessary particulars. Plaint is the first process in inferior court in the nature of
an original writ, whereby a party seeks remedyfrom court for the redressal of his grievances.
Written Statement
Written statement is the statement of defence in writing and filed by the defendent, in which he
deals with every material fact alleged by the plaintiff in the plaint.
Defendant can state any new facts, which he considers to be in his favour, and cn raise legal
objections to the merits of the case, prescribed by various lawse.g plea of limitation , plea of
estoppel, plea of res-judicata etc.
Rejoinder
Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the
defendant in written statement.
Additional written statement
It means further answer of the defendant ( if court permits) which he gives in light of rejoinder.
Object of Pleading
The object of pleading is to bring the parties to an issue and purpose of the rules relating to
pleading is to prevent the issue beig enlarged. Further that the parties themselves know what are
the matters in dispute and what facts they have to prove at the trial.
Pleading Should Contain

Every pleading shall contain and contain only, a statement in a concise form of the material facts,
n which the party pleading ( plaintiff or defendant) relies for his claim or defence, as the case
may be.
IT shall not contain, the evidence by which they are to be proved, and it shall, when necessary,
be divided into paragraphs, numbered consecutively.
Dates, sums and numbers shall be expressed in figures.
General rules of Pleading
In civil procedure code order 6 deals with pleadings in general, order 7 deals with plaint, and
order 8 deals with the written statement. The following is the summary of the rules comprised in
orders 6,7, and 8 of civil procedure code:

In pleading state your whole case, in other words set forth in pleading all material facts
on which you rely for your claim or defence , as the case may be.

In pleading state facts and not the law, if any matter of law is set out inj your opponent's
pleading, do not plead to it.

In pleading state only the relevents facts on which you rely, and not the evidence by
which tose facts are to be proved.

In pleading state material facts onlyand ommit immaterial and unnecessary facts, and do
not plead to any matter which is not against you.

In pleading, state the facts of the case concisely, but with precision.

It is not necessary to setout the whole or any part of the document, unless the precise
words thereof necessary, it is sufficient to state the effects of document as briefly as
possible.

It is not necessary to allege any matter of fact which the law presumes in your favour or
as to which the burden of proof lies upo your opponent party.

The party should not plead conclusion of law in pleading.

Legal pleas such as estoppel, limitation and resjudicata or res subjudice etc, may be
pleaded in written statement.

In cases where the party pleading relies on any mis representation, fraud, breach of
trust,wilful default, or undue influence , particulars shall be stated in the pleading.