BASIC PRINCIPLES IN DRAFTING
Drafting is a
legal composition. Thus, an important skill that every legal practitioner needs
to possess. Documents are drafted in English language, because it is the
language of the law in Nigeria.
Standard British
English, and plain English, should be used in drafting documents. Therefore,
law graduates should have acquired sufficient knowledge of English grammar in
the course of their education.
It is used to
prepare the following documents:
1)
Pleadings;
2)
Agreements;
3)
Reports;
4)
Letters;
5)
Legal opinion;
6)
Memorandum; etc.
It consists of
sentences, and each sentence must be a unit of sense.
George Coode in
his book “Legislative Expression or the
Language of the Written Law” states that every legislative sentence
consists of four parts namely:
1.
The description of the legal subject;
2.
The enunciation of the legal action;
3.
The description of the case to which the legal
action is confined; and
4.
The conditions on performance of which the legal
action operates.
Every
legislative sentence must contain a legal subject and a legal action. The
action that is of the legal subject is linked to the subject by using a
connective between the legal subject and the legal action. The connective would
depend on if the legal action is mandatory, prohibitory or permissive. If it is
a mandatory action, then a connective expression as “shall” would be used; of prohibitory, “shall not” would be used; and if permissive “may” or “may not” would
be used.
Most legislative
sentences are qualified and subject to cases and conditions which must precede
the legal subject and action.
George Coode’s
order for drafting legislative sentence is arranged thus:
CASE – CONDITION – LEGAL SUBJECT – LEGAL ACTION
However, some
legal writers have criticized the above form by stating that a simpler form
should be better to help legal practitioners in drafting. Thus, a sentence
should be arranged in the manner below:
SUBJECT – VERB - OBJECT
The subject being the actor, that
is, a person empowered to do or refrain from doing an act.
The verb states what is to be done
or not to be done.
The object on the other hand, is
the thing or person being acted upon.
In using the above format to
prepare a good draft, the legal practitioner should state precisely in a clear
manner what ought to be done by the person or thing involved in the body of the
draft and should also go an extra mile to state what the person or thing should
refrain from doing, and the person or thing in which the essence of the draft
is to be acted upon.
USING PROPER LANGUAGE AND GRAMMAR AND
AVOIDANCE OF AMBIGUITY IN DRAFTING
The proper language
to use as earlier stated is Standard British English, and plain English for
this will help easy understanding of whatever document that is to be prepared
by a legal practitioner.
To be an
efficient legal writer, the legal practitioner should have a proper
understanding of Standard British English, particularly in respect of the
following:
1.
Spelling
2.
Sentence structure
3.
Paragraphing.
4.
Grammar.
5.
Capitalization.
6.
Punctuations.
To avoid
ambiguity, nouns should be preferred to pronouns even at the cost of
repetition.
Adjectives and
adverbs should also be used carefully because their meanings are less clearly
fixed than that of nouns.
PRECEDENTS IN DRAFTING DOCUMENTS
This is a system
of jurisprudence based on judicial precedents rather than statutory laws which
is advisable for an efficient legal practitioner to use in drafting good
documents.
PRODUCING ERROR FREE DOCUMENTS
The best way to
produce error free documents is to:
1.
Avoid ambiguities.
2.
It should be well planned.
3.
Drafts should be sent for perusals, that is, the
document should be read thoroughly or carefully.
4.
It should undergo scrutiny, that is, getting the
service of another legal practitioner or practitioners.
5.
The use of short sentences is advisable to aid
clarity.
6.
Proof read your document, that is, edit and
check the draft for any further error.
THE NEED TO ADEQUATELY REPRESENT THE
INTENTION OF THE CLIENTS IN DRAFTING DOCUMENTS
The reason is
that most clients are illiterates and do not know how to go about drafting
document or documents, as such they acquire the services of legal practitioners
to assist them in drafting good documents.
The legal
practitioner on the other hand is to get a checklist from the client as regards
to what the draft shall curtail. The legal practitioner however, must not allow
the client to stipulate the type of document to be drafted. No matter how
experienced in legal transactions the client is, he or she does not know the
law. The knowledge of the law is the preserve of the legal practitioner. Thus,
it is the legal practitioner’s knowledge and expertise that should be exercised
in deciding which document can appropriately embody the transaction.
Oral and
documentary details of the transaction must be provided by the client, and in
some cases, the legal practitioner must visit the subject matter of the
transaction, if necessary, to gain a better understanding of the transaction
and to enable the legal practitioner draft an appropriate document.
STAGES OF DRAFTING
There are
several stages of drafting which includes:
1.
Design.
2.
Planning and outline of the draft.
3.
Composition.
4.
Scrutiny.
5.
Editing and checking the draft.
DESIGN
This is the act
of working out the form of something (as by making a sketch, outline or
plan). A legal practitioner must make or work out a plan for the draft. Thus, a
draft must have a good design.
PLANNING AND OUTLINE OF THE DRAFT
This is the
cognitive process of thinking about what you will do in the
event of something happening. That is, the plan should have the will and
intention to carry out some action that is derived from the design. There
should also be a schematic or preliminary plan acting as the outline of the
draft.
COMPOSITION
This is the
spatial property resulting from the arrangement of parts in relation to
each other and to the whole, that is, the way in which the draft is
composed. Thus, the draft should be created by arranging several precedents to
form a unified whole.
SCRUTINY
This is the act
of examining something closely (as for mistakes). For a draft to be error free,
a legal practitioners draft should undergo scrutiny, that is, getting the
service of another legal practitioner or practitioners.
EDITING AND CHECKING THE DRAFT
This is the last
stage of drafting. After a draft has undergone scrutiny, a legal practitioner
should edit and make omissions or additions based upon what is scrutinized and
give a final thorough check to see if it is standardized.
HABITS TO AVOID IN DRAFTING
For a drafting
to be good, a legal practitioner has to avoid certain words which if used will
act as pitfalls to good drafting techniques. Such words are as follows:
1. Words and phrases that are uncommon and intricate
expressions – A legal practitioner should avoid words or phrases that are uncommon
or having many complexly arranged elements, that is, elaborate or complex words
should be avoided.
2.
Verbose
statements and excessive use of words – A legal practitioner should avoid using
statements that contains more words than are needed and should also refrain
from using excessive words in order for the document to convey a simple
meaning.
3.
Archaic
words and expressions – The use of old words should be avoided and be
placed with modern words. For example, “doeth”
is an archaic word for “do”.
4.
Latin
words and phrases – In drafting, sentences should be written in plain
English devoid of Latin words and phrases. The use of Latin words and phrases
should be avoided when drafting documents for a client because not all clients
understand its meaning. For example, rather than writing the Latin word or
phrase: “et in terra pax hominibus bonae
voluntatis”, the English phrase “and peace to his people on earth” should
be written.
5.
Use of
pronouns instead of nouns, adverbs instead of verbs - To avoid pitfalls in
drafting, nouns should be preferred to pronouns even at the cost of repetition.
Verbs should be used instead of adverbs. Adjectives and adverbs should also be
used carefully because their meanings are less clearly fixed than that of
nouns.
6.
Improper
use of words – A legal practitioner should avoid improper use of words.
Words like may, shall, will, when, where, etc. should be used at the
appropriate places.
7.
Clumsy
and inelegant words and phrases – A legal practitioner should not used
words that are clumsy, that is, words or phrases that are difficult to use,
because they are not elegant or graceful in expression.
8.
Redundant
words or phrases, jargon and technical terms – A legal practitioner should avoid
using words and phrases that are no longer needed or useful in drafting
documents. He should also avoid jargons because such words or expressions are
not accepted. However, it is permissible to use technical terms and terms of
art where they are understood in the trade or profession, when the document is
intended for persons engaged in that trade or profession.
AID TO CLEARNESS AND ACCURACY
For a document
to be well drafted, it must be clear and accurate. The following will aid a
legal practitioner to draft an accurate and clear document:
1.
Punctuations
– A legal composition must be properly punctuated. Punctuation aids clarity
and enables the sentence to convey the intended meaning. Punctuation marks must
be used correctly, if they are to serve a useful purpose. The use of proper
punctuation marks is an essential part of good drafting. The punctuation marks
that may be used are – full stop, comma, colon, semi-colon, brackets, question
mark, exclamation mark, quotation marks, hyphen and apostrophe.
2.
Capitalizations
– A sentence must begin with a capital letter and may end with a full stop,
exclamation mark or question mark.
3.
Use of
definitions – When words are used in drafting a document, it is advisable
for a legal practitioner should define words which he believes will not be
understood by a client. For example, when a legal practitioner uses words like “lessor”, “lessee”, mortgagor, etc, he
should define such words to give its original meaning.
4.
Use of interpretation
clauses – This is the act of interpreting something as expressed in an
artistic performance. When this is done, the legal document will convey a great
meaning making it clear and accurate.
5.
Words in
use to avoid context, ambiguity – Words that convey one meaning rather than
several meanings or context should be used.
6.
Conveyancing
Law and Interpretation Act 1964, sections 14 and 18 – Both sections
referred to make use of words like “month” and “person”. To achieve clarity and
accuracy, the meaning of such words should be explained. Thus, “month” means a “calendar month” (not 31 days because not all the months have 31
days), whilst “person” includes a “corporation”.
7.
Brackets –
These are in pairs: open and closed brackets. They are also called
parenthesis. Generally, they are used to enclose an aside or afterthought,
which further clarifies a sentence. Brackets are used in legal documents to
enclose nicknames given to parties to a transaction e.g. (the seller), (the
buyer), etc. They are also used to enclose abbreviations or equivalence of
figures in words. There are two types of brackets namely round ( ), and square
[ ]. Square brackets are used in quotations where words which do not belong to
the quotation are inserted in the quotation for sake of clarity while round
brackets are used in all other situations except in citations of certain
journals and law reports.
8.
Schedule –
This is an annex or appendix to a statute or other document which aids clarity.
Thus, they are part of enactment – A. G
v. Lamplough (1878) 3 EXD 214.
9.
Repetition
of preposition – This should be done in a logical manner in order to convey
the essence of the legal document. That is, prepositions should be repeated
where and when necessary for sake of clarity.
10. Enumerating
particulars and the exclusion of the “Ejusdem generis rule” – A legal
practitioner has to determine the number of particulars by mentioning them one
after the other and avoid the use of “ejusdem
generis rule” which means “of or as
the same kind”. Because, this might lead to ambiquity – Cotman
v. Brougham (1981) A 514.
11. Cross headings and computation of time – These
are used to for a clearer understanding of a legal document.
SENTENCE AND PARAGRAPHS
1.
Sentences
- A sentence must begin with a capital letter and may end with a full stop,
exclamation mark or question mark.
a)
Sentences
– Sentences should be written in plain English.
b) Lengths of sentences – Long sentences should be avoided at all cost, instead, such a sentence
should be redrafted into series of sentences. The length of a sentence depends
on the idea in the sentence. Several scholars have given different ranges of
words that should be contained in a sentence but a lot of them have agreed on a
maximum of twenty eight (28) words while others ranges from twenty (20) words
to twenty five (25) words. Thus, a sentence must neither be too long nor too
short.
c) Use of active words – Short,
familiar words should be used instead of long unfamiliar words. Concrete words
should be preferred to abstract. Words giving the same meaning should be
consistently used. Technical words should be used sparingly.
2. Paragraphing technique – Sentences
must be arranged in paragraphs, each paragraph consisting of a thing, idea or
argument. The division of a text into paragraphs makes for easy reading.
3. Lengths of paragraphs – Suggestions have been giving about the right length
of a paragraph, ranging from five (5) sentences to six (6) sentences.
4. Numbering and indentation in paragraph – This is necessary in order
to make clarifications in a legal document.
Legal practitioners may be
required to draft several documents. These include internal memoranda, letters,
legal documents, legal opinions and advice, and pleadings. Drafting rules must
be followed when drafting documents and the right format adopted. Also, the
appearance of legal documents is important. Documents should be well laid out
to aid readability.
Follow @wingrassnews
No comments:
Post a Comment