Six steps to better drafting skills
21 Aug 2020
Using precedents for the drafting of pleadings has become a standard practice that results in delays and increased cost of litigation. Drafting needs to be logical, rational and offer a clear representation of the client’s specific case.
Copying from a precedent is drafting blindly and will result in the judge not being clear as to the issue presented, leading to unnecessary delays. This is no longer considered acceptable practice with the need for upskilling in this area a priority for the attorney or advocate of the 21st century.
“Writing is about thinking. When you use a precedent, you don’t think,” says Advocate Ismail Hussain SC, author of Practical Drafting Skills. “When you write you are writing for the judge who needs to know what the case is about, and for the other side who want to know what your claim or defence is. Copying and pasting from a precedent will not result in a persuasive argument for your case.”
“We need to change, we need to resolve disputes, listen to our clients and co-operate with our opponents,” Hussain said in a free webinar, The Importance of Good Legal Drafting Skills, hosted by legal technology provider, LexisNexis South Africa. It’s an issue so important that a second webinar on the topic will also be hosted on 27 August.
In the webinar Hussain details six key steps to better drafting skills:
Step 1: Get the facts.
You need to obtain and absorb all of the facts that are relevant to the dispute and that will assist the judge in resolving the issue. These facts must be supported by credible evidence. The client’s version of events must be plausible and supported by undisputed facts and available evidence. A key test – do you believe it?
Step 2: Identify, rank and tests disputes of fact and disputes of law
Once you have obtained all of the facts, you need to determine what issues or disputes arise from these. Identify disputes of fact and disputes of the law. Rank these in order of importance, dealing with the most important one first. Test the issues – refer back to your client and be sure that the manner in which you both interpret these disputes aligns.
Step 3: Contextualise the issues
You know the facts now, have worked out the legal issues. Now find the law. Establish the applicable area of law and then contextualise the issues. Your job now is to correctly identify and understand the law, explaining it before you can apply it to the facts of your case
Step 4: Understand the Law
The next step in the process is to gain an understanding of the applicable legislation and the leading cases pertaining to the issue at hand. You must be able to cross reference every legal reasoning with the law or legal authority. Write a short chapter summarising the rule – in your own words – to help you focus and test your understaning of the rule.
Step 5: Applying the Law to your Facts
Legal rules have distinct elements which must be proved for the rule to be applicable to the facts of your case. The strength of your case is determined by how well you can satisfy each element based on the material facts of your case. To do this, you will need to have a thorough knowledge of the facts of your case.
Step 6: Reach a conclusion
Your conclusion must be supported by the facts of your case and by a legal rule. The best place to find support for a legal rule is in the most recent decision of the highest court. You do not need to present more than one decision.
“Good drafting is not only about writing technique and skill,” says Hussain. “I have been teaching this for over three decades and most legal professionals I have encountered can write. Good drafting is about What you write.”
Advocate Hussain is a former Judge of the High Court and Competition Appeal Court, and has served on the panel of trainers for the Law Society and Legal Aid SA, providing training in Drafting, Trial Technique, Commercial Drafting and Financial Compliance to Attorneys, Advocates and business executives. He also writes training manuals for the Law Society, Government and Financial institutions.
Need help learning to draft pleadings that win your case? Watch the first free webinar by Adv Hussain and learn key skills or sign up to join the second webinar on 27 August 2020 at 10h00.
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