That the writer in the present piece, intends to share her experience of legal drafting from a different perspective and approach rather than discussing the format of various pleadings.
It is presented to deal with practical concerns that a young Counsel has to face while preparing herself to do one of the most challenging jobs in legal practice. It is clarified at the outset that the present piece will definitely be distinct from the usual blogs/articles as the writer herein, with utmost caution, intends to share a few important points that every young Counsel must take into consideration while drafting.
That others may find it a little difficult to appreciate the style of the present piece and might not be able to comprehend the content and understand the message behind writing it but this is how, generally, the legal drafting is done. Further, on the other hand, the members at bar reading it may find it completely different from their style of drafting and may appreciate/disagree with the present piece. In this regard, the writer herein submits that the very rule of the game called ‘drafting’ is that every Counsel is free to make their own rules and strategize accordingly so as to achieve precision and brevity of thoughts and words as well as sowing the seeds of a winning case.
That it is further submitted that the purpose is to give the young Counsels some suggestions so that they leave behind their various inhibitions, self-doubt as well as the immense pressure that we all go through while learning the drafting skill at the initial stage of our legal practice. The writer herein holds a strong conviction that if the young counsels are aspiring to gain good drafting skills, then they must ride through journey of hardship and discomfort while training their mind for legal drafting. Furthermore, once the Counsel is able to cross this first step of ladder patiently, then they get an edge over their counterparts who may be good Arguing Counsels but not the skilled Drafting Counsels. To substantiate the aforesaid claims, the writer herein would like to inform that legal drafting is not an intricate art rather it merely requires reasonable intelligentsia to arrange one’s understanding of the facts and law on paper/word document.
That for an Advocate, it is the most important skill that one must possess by all means. The deep understanding of the case papers will do no good if the Counsel is not able to put the same in writing (unless you are getting it done by someone else). Further, since any suit/petition/application is the first document that discloses the story of the damages/crime caused/committed to/against a party, the grounds for approaching the Hon’ble Court, and the relief/punishment sought/ to be inflicted against/upon the opposite/accused party/person the same has to be reasonably well drafted in order to create an interest in the mind of the Hon’ble Judge to at least give you a good hearing. To justify the use of ‘slash’, it is submitted that the writer herein is aware of the term called ‘cause of action’ but the same has not been used intentionally so as to avoid any inconvenience that may be caused to the readers in understanding the above who may not have a legal background.
That further, the Counsels should have a good command over the language (vernacular or English) but it need not be like, with all due respect, William Shakespeare or Bhartendu Harishchandra etc. The drafting Counsels must be able to present their case in lucid sentences and paragraphs (if possible), easy language, and the clarity of thoughts should prima facie be reflected. It is suggested to all dear young Counsels to avoid showing off their English literature kind of language skills by drafting complex pleadings. The writer herein would like to highlight the fact that Hon’ble Judges, especially the Appellate Courts, prefer short and simple pleadings since they have limited time to go through each file. They expect to understand the cause of action and the relief sought in first reading itself therefore, the Counsels must pay extra attention while disclosing the cause of action and drafting the prayer.
Thus, the drafting Counsels are under the unsaid obligation to keep the pleadings as precise as possible so that the process of reading a case file becomes less tedious for the Hon’ble Judges and the opposite party. Based on the experience so far, the writer explicitly submits that there has been a drastic change in the attitude and approach of the Hon’ble Courts in deprecating the practice of the Counsels using fancy words which may compel the judges to invest extra time in interpreting the context in which the word may have been used. It is further submitted that one of the biggest challenges of the legal drafting is to avoid using those English or vernacular words that may advance a different meaning to the facts of the matter in hand. The writer herein, most humbly, suggests to the young Counsels to think of all the possible interpretations that a word may imply or change the actual sense of the submissions made.
That, it is further suggested to the young Counsels to stop bothering themselves by asking the same questions from different seniors as to ‘how did they “learn” drafting in their early days. The writer herein submits that the skill of drafting can never be learnt by copying the style of the other Counsel rather it gets better and better with time, experience, and practice. Thus, it is most humbly requested that the young Counsels should stop stressing out about their present drafting skills. It is suggested that a young Counsel should never leave even a single opportunity of drafting that comes their way. It is also submitted that, occasionally, day to day drafting tends to get boring but the Counsel should always look at the brighter side of sharpening their drafting skills proficiently. As a consequence, it is submitted that not only the drafting gets better but the understanding of the law gets improved and the time consumed in drafting also gets reduced.
That to start with, read all the documents carefully and jot down all the points understood as well as discussed with your senior/colleague. Thereafter, prepare a rough draft and include all the points in different paragraphs without leaving even a single one as per your understanding, analysis, knowledge and logic. The addition and subtraction could be done while vetting it the second time. Further, the multiplication of arguments have to be avoided but, if there is a single argument for two different issues then a categorical division or the doctrine of merger has to be applied emphatically . The choice is always yours. The writer herein employs one technique while vetting a draft for the last time which is to consider oneself a Judge and think critically while reading the draft. The writer herein gives 100% guarantee that if the draft is lacking something one will be able to know the missing points and shall also get an idea to fill in the blanks.
That furthermore, the drafting, at learning stage, could be tedious and annoying as it consumes time because we have to read the papers, understand the matter and law, carve out the points to present or challenge, frame a mental draft, discuss the same with senior/colleague/briefing counsel/client. It is also submitted that the drafting Counsels will experience constant and tremendous pressure to prepare a complete draft but it is one’s personal battle which each young Drafting Counsel has to go through. The writer herein would like to suggest that either you give up drafting and find other ways to get it done for you or learn it by doing it as many times as you can. It is further suggested that one should avoid being sensitive towards the drafted matter because such attitude blocks the drafting Counsel’s intelligentsia to understand and appreciate the errors when highlighted by seniors. Of course, in few unfortunate cases, there are people who will never be satisfied with your drafting so in that case the writer herein suggests to just keep moving ahead confidently, be satisfied with your ‘masterpiece’, learn to frequently appreciate yourself (without crossing the thin line of overconfidence and becoming a snobbish) and to entertain only genuine comments of the concerned person.
That furthermore, the drafting Counsels may get swayed by the temptation of preparing the best draft but the writer herein, with all due respect and in the most humble way, would like to shatter the above expectation by submitting that there is nothing called ‘best drafting’ in legal practice. At the most, it can be flawless or a good draft. It is submitted that after drafting ten to fifteen matters the rate of errors starts declining which is a valid indicator for assessment of one’s growth, and shows a pathway for further growth in drafting skills. Further, the factors such as the type of pleading that one is drafting, drafting style of one’s senior or colleagues, reliance upon the raw draft of some other matter on a similar issue, the relevant drafting practices of the local bar also affects the quality of one’s drafting. So, it is submitted that there is no straight jacket formula that can be used for legal drafting.
Lastly, the writer herein would like to say that the young Counsels should strive to ‘create’ their drafts rather than ‘drafting’ their drafts. The writer herein is of the view that evolution of one’s drafting skills begins when one learns to present a case innovatively and differently in essence. This is the writer’s personal opinion through her experience so far. So, All the very best!
The writer herein intends to say more but may be in the next such blog from an entirely different perspective in a different style. Thank you for your patient reading and investment of time. Stay Safe, Stay Healthy!
Edited by: Shubhanshi Phogat
