Drafting (Legal Skills Series)

245 Pages·2001·3.04 MB·English

by  Elmer Doonan

C
P
Cavendish
Publishing
Limited
London • Sydney

Elmer Doonan, LLB, LLM
Solicitor, Wilde Sapte, London
and
Charles Foster, MA (Cantab), VetMB, MRCVS
Barrister, Inner Temple, London
SERIESEDITOR
Julie Macfarlane, BA, LLM, PhD
Associate Professor of Law
University of Windsor, Ontario
C
P
Cavendish
Publishing
Limited
London • Sydney
Second edition first published in Great Britain 2001 by Cavendish
Publishing Limited, The Glass House, Wharton Street, London
WC1X9PX, United Kingdom
Telephone:[phone] Facsimile: [phone]
Email: [email protected]
Website: www.cavendishpublishing.com
©Doonan, E and Foster, C 2001
First edition 1995
Reprinted 1996, 1997, 2000
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording, scanning
or otherwise, except under the terms of the Copyright Designs and
Patents Act 1988 or under the terms of a licence issued by the
Copyright Licensing Agency, 90 Tottenham Court Road, London
W1P 9HE, UK, without the prior permission in writing of the
publisher and copyright owner.
Doonan, Elmer
Drafting – 2nd ed – (Legal skills series)
1 Legal composition
I Title
808'.066'34
ISBN 1 85941 486 9
Printed and bound in Great Britain
v
Editor’s Introduction
The essence of our lawyer’s craft lies in skills ...; in
practical, effective, persuasive, inventive skills for getting
things done ...
Karl Llewellyn
The appearance of this series of texts on legal skills reflects the
shift in emphasis in legal education away from a focus on teaching
legal information and towards the teaching and learning of task-
related and problem solving skills.
Legal education in the UK has undergone significant changes
over the past 15 years as a result of growing concern, expressed
for the most part by the profession, over its adequacy to prepare
students for the practice of law. At the same time, many legal
educators have voiced fears that concentrating on drilling students
in substantive law promotes neither the agility of mind nor the
development of judgment skills which provide the basis for
continued learning.
Today, courses providing clinical experience and instruction in
legal skills are increasingly a part of undergraduate law
programmes. Both branches of the profession in England and
Wales have fundamentally revised the content and format of their
qualifying courses to include direct instruction in practical skills. In
Scotland, the Diploma in Legal Practice, which emphasises the
learning of practical skills, has been in place since 1980/81.
Nonetheless, legal skills education in the UK is still in its infancy.
Much is to be learned from other jurisdictions which have a longer
history of the use of practical and experience based teaching
methods, lessons invaluable to UK law teachers, many of whom
now face the challenge of developing new courses on legal skills.
The ready exchange of ideas between skills teachers in the UK and
vi Drafting
abroad is an important part of the development process. So too is
the generation of ‘home grown’ texts and materials designed
specifically for legal skills education in undergraduate and
professional schools in the UK.
The introduction of skills teaching into the legal education
curriculum has implications not only for what students learn in law
school but also for how they learn. Similarly, it has implications for
the kind of textbooks which will be genuinely useful to students who
wish to succeed in these programmes.
This new series of texts seeks to meet this need. Each text
leads the reader through a stage by stage model of the
development of a particular legal skill; from planning, through
implementation in a variety of guises, to evaluation of performance.
Each contains numerous practical exercises and guides to improve
practice. Each draws on a network of theories about effective
legal practice and relates theory to practice, where that is useful
and relevant.
The authors are all skills teachers with many years of practical
experience at all levels of legal education. They draw on relevant
literature and practice from all over the common law world.
However, each book is written specifically for students of law and
legal practice in the UK and sets learning in the context of English
law and against the backdrop of the Law Society’s standards for the
Legal Practice Courses.
Each of these texts is designed for use either as a supplement
to a legal skills course taught at an undergraduate or professional
level, or as a model for the structure and content of the course
itself. I recommend the use of these books, therefore, to students
and skills teachers alike, and hope that you enjoy them.
Julie Macfarlane
London, Ontario
vii
Contents
Editor’s Introduction v
Table of Cases xi
1 General Considerations inDrafting 1
1.1 What is drafting? 1
1.2 The objectives of legal documents 3
1.3 Accuracy and legal documents 5
1.4 Acquiring drafting skills 6
1.5 What is involved in drafting? 7
1.6 Client’s instructions 8
1.7 Preparation and planning 10
1.8 Anticipation of problems 11
1.9 Use of language 12
1.10 Refinement and rearrangement 13
1.11 Presentation and division 14
1.12 Knowledge of the facts and the law 14
1.13 Review and amendment of drafts 15
1.14 Use of precedents 16
1.15 Changes and updating 17
2 The Drafting Process 19
2.1 From start to finish 19
2.2 Time 19
2.3 The thinking stage 22
2.4 Obtaining documents and papers 29
viii Drafting
2.5 Legal research 31
2.6 The composing stage 35
3 Presentation and Division 49
3.1 Importance of presentation 49
3.2 Achieving good presentation 49
3.3 Division of the document 52
3.4 Paragraphing 56
3.5 Numbering of divisions 62
3.6 Schedules 66
3.7 Tables 68
3.8 Enumerations 71
3.9 Maps, plans and diagrams 76
4 Definitions 79
4.1 Introduction 79
4.2 Rules for the use of definitions 80
4.3 Methods of defining words and terms 83
4.4 Common problems in drafting definitions 86
5 Drafting Language 91
5.1 Introduction 91
5.2 Drafting as communication 91
5.3 Vagueness 94
5.4 Ambiguity 98
5.5 Use short and simple words 102
5.6 Consistency 110
Contents ix
5.7 Technical legal terms 112
5.8 Archaic language 115
5.9 Antiquated introductions 117
5.10 Synonyms 119
5.11 Negatives 123
5.12 Active and passive voice 124
5.13 Gender 126
5.14 Date and time 133
5.15 State expressly who has a right, power or duty 138
6 The Composition of Clauses 141
6.1 Objectives in composing clauses 141
6.2 Components of clauses 142
6.3 Tense 151
6.4 Punctuation 153
6.5 Words and spelling 156
6.6 Provisos 159
6.7 The ejusdem generisrule 166
6.8 Enumerations 171
6.9 Two provisions in one sentence 172
7 The Use of Particular Words 175
7.1 Introduction 175
7.2 Use of ‘shall’ 175
7.3 Use of ‘may’ 181
7.4 Use of ‘and’ and ‘or’ 185
7.5 Avoid ‘and/or’ 191