THE BASICS OF LEGAL DRAFTING: A GUIDE FOR BEGINNERS

Prologue

Legal drafting can be daunting to read, understand, and practice. It is a skill and science—a work of art that can be maximized only by proper research, practice, and understanding the current demands of the clients. It is a complex aspect with predetermined structures that requires accuracy, clarity, and the mastery of both general and specific laws. However, mastering the skills of legal drafting is essential for any modern-day lawyer. These drafts include the protection of rights of clients, the enforceability aspects, and the modes of dispute resolution in times of deadlock. During professional employment, business contract drafting, transfer of property, and court proceedings, clients call on the lawyers to apply the skills of legal drafting. It is fair enough to say that lawyers in India and elsewhere, in one way or another, employ the skills of legal drafting and use of legal documents in their daily duties. Crucially enough, the credibility of a standard legal document can be determined by the quality of the research carried out. Conducting thorough research enhances the quality of each draft, whereas inadequate research can lead to drafts that are unreadable, unclear, contain inappropriate legal citations, and utilize outdated terminology that may not meet judicial requirements. Besides, adequate research helps bridge both the interests of the legal demands with the specific interests of the clients by being exact, clear, and unambiguous. Therefore, while aiming to perfect one’s drafting skills, it is crucial for one to improve their research skills in order to meet the standards for quality document drafting. Here, we shall identify the importance of research in legal drafting, the necessary skills requirements, elements of quality legal drafts and the steps in making an outstanding legal document.

Importance of Research in legal drafting

As seen earlier, research is the fundamental aspect of every legal document, regardless of the type or nature of the specific drafts. It is essential to conduct thorough research while drafting due to the following reasons:. Knowledge of applicable laws: It is crucial to know the demand-specific laws for each draft. This is because different disputes or agreements are subject to different legal regulations under varying procedural approaches. Therefore, conducting proper research helps equip the draftsman with these first-hand legal requirements. Clarity of intent: Every legal drafting document needs to be clear with little-to-no ambiguity. It is the responsibility of the draftsman to ensure that such requirements are maintained by conducting proper research and avoiding chaotic references. Protecting clients: Proper research also helps in protecting the rights and benefits of the clients. This includes offering them ownership rights, rights to return in case of property transfer and also the right to initiate redressal mechanisms in times of dispute. All these can be well incorporated through proper research. Keeping up with the current legal developments: the law changes and the procedures are done. It is crucial for one to conduct thorough research about the document to be drafted in order to make necessary adjustments from the previous drafts. This can be done by comparing old and new drafts as well as researching new developments in the judicial decisions to avoid citing invalid references. Avoiding legal risks: Research also helps lawyers discover weaknesses in legal provisions and correct or consider them in their drafts. This is important as it helps them remain informed about the potential counterarguments they may likely face.

A step-wise legal drafting research

While it is important to imagine a well-written article with up-to-date information on legal research, the following are necessary steps one can consider in making a complete legal research paper or article. They include:

1. Brainstorm and identify the purpose of the document to be drafted.
2. Research and gather relevant legal materials while reading them to get an idea about the document to be drafted.
3. Analysis of legal-related or similar legal drafting documents: This is to offer a review and help in identifying certain standard phrases and terminologies, domain requirements, and pitfalls in those documents.
4. Discourse on jurisprudence: This involves inferences to certain precedents and judicial interpretations of similar issues with the main ideas in the target document in order to identify relevant principles and avoid other contentious provisions of law.
5. Demand-specific requirements: This involves identifying the demands of the clients or individuals who specifically seek such documents. This is because for example, all can be contracts but the terms and agreements may defer from parties to parties.
6. Inter-referencing and verifications with other provisions: This involves cross-referencing with other legal drafting provisions and verifying the validity of the cited provisions in the draft before presenting the same to the clients.
7. Proofreading: This is the final must-do for any draftsman. You make proper reading, word-by-word, of the entire content of the draft to identify errors in phrases, spellings, ambiguous words, and wrongful citations.

Types of legal documents

Litigation documents: These include court applications, petitions, affidavits, vakalatnamas, and written statements of submissions comprising arguments of parties in a litigation. Wills and Trusts: Here, drafts can be made for the purpose of transferring property from one party to another. It is crucial to maintain a concrete statutory basis here by referring to relevant specific laws such as the Indian Succession Act, 1925, and taking a conscious regard to avoiding contests between the beneficiaries therein. Agreements and Contracts: These involve employment contracts and other agreements between at least two parties. Here, strong emphasis shall be based on the demand-specific requirements of such agreements or contracts and balancing the interests of both parties while protecting their rights in case of disputes. Corporate Documents: These involve incorporation documents, board resolutions, schemes, shareholders’ agreements and other corporate transaction documents. Here, thorough research is required in order to maintain the statutory compliance of such documents. For instance, the provisions of the Companies Act 2013 and SEBI Regulations, among others. Legal Notices: These involve adequate research on the legal requirements on the times and limitations in order to ensure their validity. It is used as an information tool to seek performance of obligations by a party. Confidentiality agreements: These include non-disclosure agreements and other confidentiality agreements for services. It is employed by parties in an agreement working together. Privacy policy: This involves statements in regards to the privacy of certain entities and that it offers an obligation to third parties to adhere to while working with them.

Four Key Principles of effective legal Drafting research

1. Prepare for the drafting process.
2. Always keep up-to-date with knowledge and information.
3. Work with trusted sources, and avoid misinformation.
4. Consult senior lawyers or experts in case of technicalities

CONCLUSION

It is therefore pertinent to note that research is the backbone of any quality draft. Regardless of the nature of the draft, every draftsman needs to conduct thorough research in order to identify the relevant laws and legal drafting provisions as well as the current changes in a specific legal domain. The soundness of a legal document is determined by the quality of the research conducted by the draftsman. In courts, lawyers do experience the eminent need for proper research, as can be seen in the references in the precedents, citations of the relevant laws and challenging cases that had been overruled by other judgments—something without thorough research is impracticable. Besides, making drafts that meet the client’s specific requirements while protecting their rights in cases of potential risks and disputes requires a great deal of research by lawyers. Therefore, practicing the art of making an outstanding legal drafting should be one of the core skill-development goals of every legal practitioner. By Charles Anyama Kalisto