LEGAL DRAFTING
It can be defined as the crystallization and expression of a legal right, privilege, function, duty or status in definitive form. Legal drafting implies: drafting a deed, instrument, or a document or embodiment as an agreement between parties or intended to regulate the legal relationship between the parties. It must be stated that Drafting is a process of synthesis of law and facts in the language form.
Kinds of Drafting: There are two types of legal drafting:
a) Functional b) Persuasive c) Informative
a) Functional: It regulates relationship between parties and their object is to achieve a particular result. Ex: Sale deed, gift deed, mortgagee deed. This is known as Conveyancing.
b) Persuasive: The object is to convince the reader to accept a certain view point. Ex: Plaint, written statement, Appeal, bail etc., This is called pleadings.
c) Informative: They contain only information necessary and useful for the reader. Ex: Letters to client and legal opinions
Stages in Drafting:
There are 3 stages in legal drafting:
1) Planning 2) Writing stage 3) revision stage.
1) The planning stage constitute following steps:
a) taking instructions from the client .
b) analyze those instructions and compartmentalize them in a factual and legal context.
c) Ascertain the purpose and objective behind creating the document.
d) Research the relevant up-to-date case law and find appropriate forms or precedents.
e) Identify options.
2) The writing stage:
a) Prepare a skeleton draft.
b) Create ideas for the draft.
c) Ensure that all the content conceived during the planning stage has been incorporated in the draft.
3) Revision stage:
a) Re-analyze the instructions, factual situation and legal research.
b) Re-write to ensure coherence.
c) Re-organize the material in a clear and user friendly manner.
d) edit the matter and.
e) Concentrate on spelling and grammar.
Pleadings: It’s a statement of facts in a logical form, which constitute the plaintiff’s cause of action or the defendant’s grounds of defence. Hence, “Pleading”, shall mean plaint or written statement. The object of pleading is to: ascertain the real dispute between the parties – narrow down the area of conflict. Before reading further it is important to understand what is meant by averment, allegation, evidence, argument, law, fact and material fact and relevant fact.
Fundamental rules of pleading:
a) State material facts b) Don’t state law c) Don’t state evidence d) Material facts shall be stead in precise and concise form e) Other rules
a) State material facts: Parties shall state material facts. Omission to state material facts is fatal for the plaintiff or for the defence. No amount of evidence can be looked into in the absence of pleading i.e., in the absence of material facts.
b) Don’t state law: In pleadings law must not be mentioned. However, this rule not applies in case of foreign law. Foreign law must be specifically pleaded. Ex: A states in her plaint that she is an heir of deceased B. This is an inference. A is required to plead as to how she has inherited from deceased B.
c) Don’t State evidence: In pleadings evidence must not be mentioned. However, this rule not applies in following cases:
1) Any averment of the performance or occurrence of all conditions precedent (ex: issuing of notice) necessary for the case of the plaintiff or defendant shall be implied in the pleading and they not required to be averred specifically.
2) If other party didn’t dispute by way of pleading, due performance will be presumed. It must be noted that neither party need to plead any material fact which the law presumes in their favour or as to which the burden of proof lies on the opposite party, unless the same has been specifically denied.
3) The defendant need not specifically deny any allegation in the plaint with regard to damages. However, special damages and facts relating to aggravation or mitigations of damages need to be specifically denied or refuted. Similarly, evidence of facts such as admissions of parties, exchange of notices, transactions entered in their books required to be averred.
Ex: A files a suit for damages against B for wrongful act. In the plaint, it is necessary to allege the wrongful act, that B committed it and that A has suffered loss and damage on account of the same. It is not necessary to set out the means by which the wrongful act produced these consequences-
d) Facts to be stated in concise form: Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
e) Other rules: 1) The pleading shall be divided into paragraphs and numbered consecutively and dates, sums and numbers shall be expressed in figures and words. Simple sentences shall be used and passive voice and pronounces are to be avoided.
2) A bare denial of a contract by the opposite party would be construed as a denial of the fact of the said contract and not as a denial of the legality or sufficiency in law of such contract.
3) In case a document is to be pleaded generally, it is enough to plead the effect of the document without setting out the whole or any part thereof. However, in case of defamation the specific words used are material and require to be set out.
4) When it is material to allege any notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice unless the form or precise terms of the notice constitute material facts. Further when the notice form part of cause of action it must be specifically pleaded except it is a condition precedent for filing suit.
Power of Court with respect to pleadings:
Strike out or amend pleadings: The court may at any stage in the proceedings, order to be struck-out or amend any matter in the pleading: a) Which may be unnecessary, scandalous, frivolous or vexatious b) which may tend to prejudice, embarrass, or delay the fair trial of the suit or c) which is otherwise an abuse of process of the court.
Amendment of pleadings: Amendment of pleadings is not a right of the party, it can be done at the discretion of court. Court can permit amendment of pleading when it thinks just for purpose of determining the real questions in controversy between the parties. Amendment can arise in the following five different ways: a) A of clerical, arithmetical mistakes in judgments, decrees and orders b) A of proceedings in a suit by the court to determine the real question between the parties c) A of striking out or joining of parties d) A of opponents pleading mandated by the court e) Amendment of own pleading s to application made.
Plaint: A plaint is a statement of claim. If a plaint is in order it will be registered as Suit. To register plaint as suit it must contain following particulars:
1) Name of the court.
2) Name, description, residential address of the plaintiffs and defendants.
3) Facts constituting cause of action and when such cause of action arose.
4) Facts showing jurisdiction of court.
5) Value of the subject matter of the purpose of jurisdiction and court fees.
6) Relief claimed by the plaintiff
7) If the plaintiff is minor or unsound mind, details of statement to that effect.
8) If the plaintiff is allowing set-off or relinquished any portion of claim, details of it.
9) If the suit is of immovable property its description, boundary, survey number details etc.
10) Plaintiff is in representative capacity, showing his actual existing interest.
11) Interest and liability of the defendant.
12) If the suit is barred by time, particulars of exemption claimed.
13) The plaint must state all the facts showing how the court has pecuniary and territorial jurisdiction over the subject matter of suit.
14) The plaintiff must state in the plaintiff the valuation of subject matter of the suit for the purpose of pecuniary jurisdiction of court and court fees Prayer i.,e Relief Plaintiff is seeking from the court.
Written statement: Written statement is a pleading of the defendant wherein he deals with every material fact alleged by the plaintiff in the plaint. It also state any new facts in favour of defendant or takes legal objection against the claim of the plaintiff. It’s a statement of defence.
Special rules of defence:
1) Details of new facts, such as suit is not maintainable by pleading, void, voidable, fraud, barred by limitation , release, payment , performance or illegality must be pleaded(R.2).
2) It must deal specifically with each allegation. The denial must be specific. It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact which he does not admit, except damages(R.3).
3) Denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, specifically and explicitly and not evasively or generally. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficiently to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received (R.4).
4) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. The court may, however, require proof of any such fact otherwise than by such admission. When the defendant has not filed a written statement the court may either pronounce the judgment on the basis of the facts stated in the plaint(except as against a person under disability), or may require any such fact to be proved.