Updated: May 20, 2020
Drafting may be defined as the ‘synthesis of law and fact in a language from’. this is the essence of the method of drafting. All 3 characteristics rank equally in importance. In different words, legal drafting is that the crystallization and expression in definitive form of a right, privilege, function, duty, or status. It is the development and preparation of legal instruments like constitution, statutes, rules, regulations, ordinances, contracts, wills, conveyances, trusts and leases, etc.
The process of drafting operates in two planes: the conceptual and the verbal. Besides seeking the correct words, the draftsman seeks the right concept. Drafting, therefore, is first thinking and second composing. GENERAL PRINCIPLE OF DRAFTING AND RELEVANT RULES- The art of drafting the pleadings has not yet fully developed despite the rise in civil legal proceeding. The art of pleading should be the foundation course and great emphasis should be laid on this paper. Because of this absence of rigorous training, the young lawyers often indulge in prolixity rather than clarity and conciseness. Many dead-sure –win cases drag on for years in the courts only because of faculty drafting. Irrelevant matters, unnecessary details are often included and the facts placed before the lawyer by his client are not marshalled. Drafting of legal documents is a skilled job. A draftsman, within the initial instance, Must ascertain the names, descriptions, and addresses of the parties to the instruments. He must obtain particular bout all necessary matters which are required to form part of the instrument. A draftsman must express the intention of the parties clearly and concisely in technical language. With this end in view, he should first from a clear idea of what these intentions are. When the draftsman has digested the facts, he should next consider whether those intentions can be given effect to without offending against any provision of law. He must, therefore read the introductory note, or, if time permits, the literature on the subject of the instrument. He must note down the most important requirements of the law which must be fulfilled while drafting a complete instrument on the subject. The validity of the document in the eye of law cannot be ignored and at the same time, the facts which should be disclosed in the document cannot be suppressed. Nothing is to be omitted or admitted at random. Therefore, knowledge of the law of the land in general and knowledge of the special enactments applicable in a particular situation is an essential requirement for a draftsman to ensure that the provisions of the applicable law are not violated or avoided. Legal language should be, to the utmost possible extent, precise and accurate. All the time the draftsman must keep his eyes on the rules of legal Interpretation and the case –law on the meaning of particular words and choose his phraseology to fit them. The talent of the best advocates in the world is that they can take a complex subject and express it in simple terms. Simplicity, will always be more powerful than complexity, it means simplicity of expression, brief use of language, and appreciation of the subtle message that one word will send, where another would not. EIGHT CORE LEGAL DRAFTING TIPS- 1- UNDERSTAND YOUR AUDIENCE 2- APPREHEND THE PURPOSE 3- USE SHORTER SENTENCES INSTEAD OF LONGER ONES 4- DON’T USE WORDS THAT DON’T ADD SOMETHING TO THE LATTER. 5- ASSUME YOUR DOCUMENT WILL END UP IN FRONT OF A JUDGE. 6- DON’T USE JARGON. ( CONFUSED LANGUAGE) 7- DON’T USE CASE CITATION MOST OF THE TIME. 8- READ IT ALL A SECOND TIME.
