Published: Wed, 07 Mar 2018
BPTC – Drafting
Drafting is the creation of legal documents. There are numerous types such as statements of case, indictments, appeals, contracts and wills, to name a few. Any document with legal content or that is for a legal purpose will require drafting,
This is a skill that develops and improves with experience and practice. There are too numerous types of document to learn every one in isolation but using statements of case are ideal as a start because of the number of elements they require and the transferability of these requirements throughout other legal documents.
The fundamental principle that underpins good drafting is planning. The more attention that is paid to planning each paragraph of the document the better the final outcome will be.
It is important to ensure that documents fully serve their function and every word in every sentence must have a purpose. Anything included in the document must not say anymore or any less that what needs to be said. The document should strive to be clear, unambiguous, complete, concise, structured, logical and perfect in its subject content, appearance and grammar and spelling and should be written in plain English.
Apart from the list above there are no general rules to drafting particular documents but many are governed by the constraints of the Civil or Criminal Procedure Rules, Practice Directions and the law in general. In addition many customs are also followed. There are different types of documents in different areas, for example types of contract or wills, but each and every document will be unique despite them occasionally following precedents. The use of precedents can be expedient but it is important to remember not to follow them too closely because the draft should always still appear as a unique piece of work.
It is important to know the case or matter well and good legal research should be undertaken. For example, a statement of case is exactly as its title suggests and therefore should include facts, allegations and evidence of the case in question.
Drafts are generally for the practitioner’s own use and normally form the basis that underpins advocacy in given proceedings. The fundamental points to remember when drafting any legal document is to research the facts and the law, decide the essential points; these can be law or the clients requests, and plan the document; this should be closely linked to the essential points. One paragraph should be worked upon at a time ensuring that each is absolutely clear as to the point it is attempting to convey. Check, check and proof read; the draft should be totally free of any spelling, punctuation or grammatical errors, A practitioner who is a competent drafter should always be able to make improvements to a piece of work.
It is important to remember whom the draft is to be read by and use appropriate language. A lay client will not understand complex legal arguments, as would a judge or the practitioner dealing with the opposing party’s case. Sometimes it is prudent to leave one that is complete and return at a later date; it is more likely that mistakes and ambiguities will be noticed with fresh eyes.
While drafting a legal document, one should always aim primarily for:
- Clarity, and
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