Do’s And Don’ts Of Drafting

You hear the term drafting everywhere in law school. But what does it actually mean? It is essentially the process of writing legal documents. The art of drafting is essentially the single most important tool for a lawyer. Without knowing this, there is no difference between a lawyer and a layman.

Like everything else, drafting requires practice. Law school teaches the basics of the ‘law.’ But what the practical world entails is quite different. Don’t worry! We are here to fill the gap.

Formatting Requirements

Let’s start with some general formatting requirements. Documents should have:

  • A legal page layout
  • Times New Roman font
  • font size – 12
  • 1.5 line spacing
  • Justified alignment.

Different High Courts and Supreme Court have their formatting specifications as well.

Do’s

1. Make multiple versions – Drafting has the word ‘draft’ in it. This means that before sending a document as a final version, make sure you make a few practice versions to make room for mistakes. Make a mental or written outline of the points you will cover even before your first draft, to not miss out on any crucial question of law.

2. Proofread the final version – Remember, the final version should not have any mistakes. Plan out your work, check out templates to check whether you are going on the right track.

3. Follow legal language – Use formal, professional and legal language. The legal language employed should be precise and accurate. A draft should be readily intelligible. Due care and attention should be placed on the rules of legal interpretation and the case law about the related matter. You should always write from the point of view of the reader.

4. Understand the subject matter of the draft before writing it – Can you write a research paper without knowing its purpose? No. Similarly, the document should be drafted as per the specific subject matter such that it is self-explanatory to the reader. The content of the draft should be sectioned into different paragraphs with each paragraph covering a certain sub-heading of the main issue at hand.

5. Number the draft properly to make referencing easier – Facts should be put in chronological order. The legal drafts are quite long and descriptive so it becomes difficult if the draft is not numbered well. You should use numbers and letters for sub-clauses and paragraphs. Example: 1., 2., 3 and (a), (b), (c).

6. Label everything properly – When you are using a word, make sure it has the same meaning throughout the document. When using short forms, make sure you have mentioned it earlier. Example: Indian Contract Act, 1872 (“henceforth called as ICA”).

7. Use proper legal terms, if any – If there is a designated legal term for something, then use those terms only. Example: Even though order and judgement are synonyms according to the dictionary, they can mean different things in law.

8. Keep it simple – Pick relevant words that easily convey what you (draftsman) are trying to say. Keep it polite and positive. Reduce a group of words to one to increase quality. Example: Wrong- “cat, dog, goat etc.” Correct- “animals.” Make sure each sentence is less than 25 words long.

Don’ts

1. Do not use passive voice – We find that sometimes our textbooks drag on and on in passive voice. Legal language is hard enough without conveying something in a long-winded manner. Example: Wrong- An interim order for maintenance is being sought by the client. Correct- The client seeks to file for an interim order for maintenance. Thus, an active voice is preferred. There is an exception: you can use passive voice if it helps you convey something more clearly to the reader.

2. Do not start paragraphs with ‘that’ – It is simply a very outdated format.

3. Do not make typos/grammatical mistakes – Drafting is a skill that requires precision in language. As said in the 1st point under Do’s, check your work properly. Example: Writing ‘plea,’ when you meant to write ‘plead.’ Proofread any work you need from blogs to dissertation. Always add punctuation and quotation marks where you should and make sure there is an agreement between the subject and its verbs. Example: He eats, they eat. Choose the right word to convey your point.

4. Do not add fancy words – When you and your friend are given the same drafting assignment, the result might vary in terms of content, but not the format or subject matter. Example: Jane and Petra have joined the same internship and were asked to draft certain grounds in favour of the petitioner. Here, the subject matter may remain the same, but the grounds may vary. This does not mean Jane has used some creative language and Petra has not. Fancy words do not mean legalese or legal language.

If at all, it makes your draft unnecessarily long and redundant.

5. Do not drag on and on – A draft is not like your textbook, where they explain the same thing in different ways and reiterate points to help you grasp the concept. You do not want to sound like a broken record. To avoid confusion, do not repeat your points and do not use words that have very similar sounds.

6. Do not use negative statements/satires on the opposite party – Unless it is necessary, avoid using a negative tone even if it is 1 or multiple consecutive statements. A legal document is not the place for witty jokes, sarcasm or satire. You are only expected to put forth how your legal rights have been violated or how the opposite party’s arguments are wrong.

7. Do not club many main issues into 1 petition – Focus on one main issue at a time. Example: An order for divorce and a petition for custody of children should be given in separate petitions unless the court itself asks you to club the matter.

Different courts will have different jurisdictions for two or more main issues. Example: A contract between 2 parties to trade rice should not be clubbed with an agreement to merge 2 businesses.

As a law student, you must first start with research papers to know the intricacies of writing and drafting.

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