This article is written by Komal Saloni, from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith. This is an exhaustive article which deals with the drafting skills in the law profession. How your drafting skill benefits you in your job.Know the basics about drafting how important this is in career opportunities.
Table of Contents
Meaning of contract
According to the Indian Contract Act, 1872, “Contract” is defined under Section 2(h) as ‘An agreement which is enforceable by law’. The term contract is defined as an agreement between two or more parties that is binding in nature, in essence, the agreement with legal enforceability is said to be a contract. It defines and creates the legal duties and obligations of the parties involved.
Introduction of contract drafting
Contract drafting is one of the most decisive parts of the contract management process because it provides the foundation upon which the rest of the contract is assembled. Clarity and precision in contract drafting are essential for making sure that both parties needs are fulfilled. In the legal profession, writing legal documents is the most appropriate way to put the facts of the cases before the courts and other authorities. Drafting is simply a synthesis of laws and facts on paper in a very simple and elegant manner, enacting legal documents. Although expertise in legal drafting skills comes along with the time since efficiency and skillfulness are quite essential in this profession. It’s an act of writing legal documents to advocate, inform, persuade and instruct. Drafting is an art, which involves the concept of thinking and then composing. It is important to understand the facts of the cases properly as the whole proceeding depends upon what and how the counsel drafted the matter if the draft has some error that can jeopardize the case. Drafting legal documents is the act of writing legal documents to advocate, inform, persuade and instruct.
It is very important to properly analyze the nexus between the law, facts, and the language, which institute the primary essence of drafting. To collect, coordinate and consolidate the matter in the form of a document, requires serious thinking backed by prompt action to simplify the facts with legal writing, open for judicial interpretation to derive the same sense and intention of the parties for which he has been prepared, adopted and since comparatively analyzed.
The benefits of contract drafting skills
- Suppose a situation arrives where a client comes to you with their problem in courts, corporate firm, company wherever. When they put their problem before you, you firstly listen and read the facts, understand it promptly, and then start drafting the document for further proceedings. To present the facts and submission of the parties in brief before the court, or in any tribunal, is what the drafting skill represents, for which client comes to you, you are the one who represents the client in Court.
- In business, contracts are quite significant and frequently play a crucial role in a company’s accomplishment. About contract drafting, there are many aspects to keep in mind, for instance making sure that the contract serves everyone’s best interests and helps to resolve and prevent a future contract dispute.
- While drafting contracts for construction management, builders, a real estate contract, or any other contract, it is essential to draft effective business contracts.
- A well-drafted contract benefits companies in many ways as it avoids breach of contract and litigation to improve business relationships. In consonance with the Small Business Authority, lawsuits related to contract matters can create various challenges for small businesses, such as placing emotional strain on business owners and causing burdensome financial costs, which emphasize the importance of successful contract drafting.
Importance of drafting
- Before presenting themselves in the courtroom, advocates must have to be prepared with their cases and other documents. However, advocates already have gone through an excellent job as client counselling, evidence collection, and witnesses as well but after all, if advocates are unable to present their facts correctly and straightly for the drafted document that is presentable before the judge will put down their whole efforts.
- Well drafted contracts facilitate companies in enjoying several benefits. It prevents breach of contract and litigation and further improves business relationships. As seen often, lawsuits arising out of disputes arising from contract-related issues can affect small businesses, imposing a financial burden on them and causing an emotional strain for the business owners.
- A contract consists of several specific and particular clauses, written by possibly one or more parties to the contract, and is considered legally binding only when the consent of all the parties to the contract gives their consent to it. Therefore, the terms agreed upon are recorded in a documented form. This does away with any kind of dispute in the future as the rights and obligations of the parties to the contract are laid down carefully. But still, even a written contract cannot be considered safe completely unless it is registered.
- The contract draft, considered as the primary document, is referred to by the judge, thereafter a good draft with 100 % accuracy is needed to move one step towards succeeding in a case. Its precise format and formal language are essential for convincing authority and presenting the case according to the counsel’s point of view.
- It’s an outline of the whole facts in proper language and precise format, which must be easily reached out to convince the concerned authority and understandable to them in the same view as the counsel presented. Drafting is done to make the whole case brief to the authority before whom it is presented.
Handling clients while drafting
Lawyers do many things for their clients, they advise clients, argue for them in courts and agencies, negotiate for them, lobby for them in legislatures, and so on. Their practice and experience in different areas of law give the sense to clients that how the same rule can mean different things in different contexts. Handling clients is not always an easy and smooth thing to deal with. It requires more attention and skills to relax and comfort and also make up for their cases. There are few problems as identified, associated with client handling at the time of drafting are as discussed below:
A different purpose for different clients
Every client’s problem is different and all are equally important and require an equal amount of time. That’s true, but some cases need more time and attention than any other, maybe the advocate addressed those kinds of cases for the first time or some highly disputed matter that may have been never addressed previously. This raises the difficulty level for the advocate or person who is drafting that particular matter as it may become immensely difficult for some advocates to understand the nature of cases is different from the prior one in which the drafter may be engaged.
Coordination challenges
Sometimes it is difficult and challenging to handle different clients at the same time while drafting important documents. Sometimes with a lack of experience and skills, it might be possible that the facts and matter of two different cases may get mixed up and appear in others, creating a huge problem and confusion soon.
Unable to fulfil requests
It is observed that a lawyer has to deal with the client’s unrealistic expectations and concerns. However, drafting in itself requires more attention. It seems stressful for advocates to handle clients while drafting.
Budget problems
It has been widely seen that most of the clients are unable to bear the expenses of litigants, often devising the low cost and spending less money on cases reducing the interest of the lawyers in the case.
What are the top legal drafting skills that are most essential for any job?
Remember your audience
Every word you write should be tailored according to the needs of the reader. While drafting the document may embody the same laws which may be similar to any other cases but the fact, contention, what the client is seeking for, all the content, and the tone of the drafting greatly vary as per different documents intended to the audience.
For example, a brief submitted to the court must persuade and advocate. A memorandum to a client shall analyze the issues, report the statement of the law, and suggest a suitable course of action. Always retain your audience in mind when drafting any piece of writing.
Organize your writing
Organizing is the key to successful legal writing. Create a blueprint for your writing by using visual indication to guide the reader. Use introductory paragraphs, make use of transitional phrases (“that”, “however”, “furthermore”, “besides” etc.) between the paragraphs, use headings and subheadings to break the hunk of the text. Start introducing each paragraph with a topic sentence, and limit each paragraph to a single topic, and do sum up the point in the concluding sentence. The organized structure of the drafted document eases the reader to understand the facts properly and also promotes reading ability. Use a numbering system like., 1,2,3,4,5…….and so on to avoid any misconception and for a better reference and understanding.
Ditch the legal jargons
The use of legal phrases and jargon can make the drafted document so abstract and strained. Some of the words include legalese such as herewith, aforementioned, heretofore, and wherein. These are the words when used to create hassle in clear and simple drafted documents. To avoid the jargons try to read your sentences and also take the help of colleagues or substitute those tough words with simple and concrete terms for clarity. You can understand this with an example., rather than using “I receive your correspondence,” it can be written as “I received your letter.” This sounds clear and concise.
Use action words
The use of action words seems more natural and prompt towards speaking and also makes your legal composition more powerful, vivid, and dynamic. For better understanding, some examples show the difference between the statements. As has been mentioned below, ‘weak’ denotes a sentence that is quite unclear, and the ones put forth as ‘better’ highlight clear and formal sentences:
- Weak: The witness quickly came into the courtroom.
Better: The witness bolted into the courtroom.
- Weak: The defendant was not truthful.
Better: The defendant lied.
- Weak: The judge was very angry.
Better: The judge was enraged.
Avoid passive voice
Avoid the use of passive voice impersonating the responsibility for action by removing the subject of the verb. Use of active voice indicates that the person is directly seeking for himself/herself in his/her words to the court without the involvement of the other party. It acts in accordance to clarify the plea before the court or the person whom the justice-seeking person asks for.
Edit accordingly
Editing is very important in any document after drafting. Edit your drafted document properly, diligently, with efficiency, and omit unnecessary words. Proofreading, in this case, plays an essential role. Check all your spellings, grammatical errors or punctuations, the meaning of the sentence whether clear or not, analyze all this before submitting the document before the court for further proceedings because once you are done with your drafting and submit it to court, the court grants that particular draft in good conscience. Also in case of any fault in drafted documents, the other party and their counsel can undermine your credibility as a legal professional.
What types of jobs can you get if you have good drafting skills?
It is very much expected from lawyers irrespective of their area of specialization to have basic and key skills in contract drafting. Another beneficial legal skill is contraction negotiation. These are the most lucrative and extremely rewarding skills, those who have them subsequently can foresee good career opportunities relating to them. In India, most lawyers are unable to hold proper training in contract drafting thus resulting in poor drafting skills. Some of them learn through trial and error if they are blessed with a wonderful senior who is patient enough to review their work and guide further.
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Advocate
Advocacy is one of the key professions that most law graduates prefer to do practice in courts. Fresh lawyers start practicing in court under senior advocates to gain experience before becoming successful advocates. That includes the drafting of different documents, cases, and the review of records as well as updates of the court proceedings. This helps them to develop further insight into the laws, consequently, in the future, they will be able to practice individually by learning different aspects of the law. The choices are unlimited when it comes to various fields in law.
Legal advisor
After completing a law degree, with good drafting skills, you can join any law firm or become a legal counsel, business corporations, private companies, or banks. For providing legal guidance on different legal matters, here who is good at drafting can work well. As a legal advisor, you can advise NGOs, clients, and assist people in taking the right decision. Various corporations, government organizations hire legal advisors for better consultation.
Private companies
There are tremendous opportunities all over the world to join private companies. They hire legal counsel to support their organization in legal decision-making. Anyone looking for a career in private companies should focus on different legal aspects, problem-solving ability, drafting skills also work there too while someone can write the matter they are very confident enough to advise a good decision making.
Legal analyst
Law professionals could join law firms or corporate firms to work as legal analysts of the company. This requires aspirants to own a license to practice law. Last but not the least, legal analyst after graduation you can join law firms, corporate firms and work as an analyst in different law spheres about the company and its functions. Here, the drafting ability works the most. You have to assist in the drafting of various documents and on different matters and also assist attorneys as well. In the field of financial law, it’s a great opportunity as well. It needs to be well organized and analytical too.
Growing complexities in the legal profession analyze: drafting skills as a way out
Skill and efficiency hold an important position when it comes to drafting contracts. It requires thorough knowledge of the law, judicial principles, procedure, besides that proficiency in the English language. Perfect drafting of any matter in respect of suits, complaints, applications, appeals, writ petition, reviews, revision, and other matters surely lead to a good result in terms of time, money, energy, and expectation of not only the learned members of the bar and bench but also the parties to the cases. Drafting, conveyance, and pleadings are made compulsory as a practical subject considering part of the subject in law schools in India.
In the matters concerning the drafting of deeds, drafting of criminal complaints, civil pleadings, and other proceedings; also in the matter of civil as well as criminal appeal, filing writ petition, and also the Special Leave Petition; contempt petition, etc., students who gain the perfection and proficiency, requisite knowledge in the drafting of these matters, shall undoubtedly become an ideal legal professional.
Contract drafting: bread and butter for the lawyers
Equally, similar to litigation, contract drafting is an essential aspect of legal practice. As lawyers working in the corporate field, they prepare reports, reviewing, strategizing, analyzing, and negotiating contracts. Therefore, there is one thing that an advocate can be confident about in respect of skills is contract drafting skills.
You’ll be spending the growing years of your career practicing with the interpretation of contracts, evaluating, adding clauses and after that drafting them from scrap. Any deal between any parties has an underlying contract. If you’re at a law firm it is essential to learn contract drafting skills.
Deals between two parties are one of the essentials of a valid contract. If you are working in a law firm dealing especially in mergers and acquisitions, the drafting would be essential to work. Although drafting is basic in every sector as an advocate, lawyer, legal advisor, and so on.
Although you are working in-house, reviewing and drafting contracts are done half of the time. It can be anything from Intellectual Property procurement, talent acquisition or licensing, etc. practising as an advocate in litigation contact dating can help to supplement the income of young lawyers. As an advocate you get many clients hand in hand seeking advice on common contracts like., lease agreement, rent agreement, employment agreement, partnership agreement, etc. in the field of litigation knowledge is of paramount importance you can’t advise anyone without having proper knowledge of that matter whatsoever whether it is contract drafting, criminal cases or any civil matter, etc.
Improves negotiation skills
With contract drafting negotiation skills to incorporate hand -in hand. Every contract, case, a deal has to be negotiated by both sides. No party wants a bad end to their deal, however, they will negotiate the rights, consideration, obligations, etc., at length. The idea of negotiation comes as agreeing on something instead of some other thing. While negotiating a contract a good lawyer knows what their client needs the most and also can deliver. Just like drafting skills, negotiation skills improved with time and experience and also a lot of practice to be done. The more contract you draft the more your negotiation skills will be enhanced simultaneously, contract drafting is of the same importance, advocates must know exactly which clause to be inserted or which one is not required their to achieve the client’s interest,
Improves analytical abilities
When you learn how to draft contracts your analytical abilities will be enhanced. You need to understand your client’s facts that they brief you for understanding their requirements. After that, you proceed to draft the contract which is in favour of your clients and protect their interest as well.
Improves knowledge of laws
Law school teaches us how to interpret and analyze the laws through assignments, tests, research work, client counseling, moot courts, etc. These are some activities by which students can improve their skills with the exposure of practical knowledge and application of the laws learned in law schools.
However, contract drafting and contract laws are two different things. One can think that contract laws are the basis of the deals. It is the ground of the deal, but the deals may vary. You may have a client who needs a Master Service Agreement, an NDA, or a joint venture agreement, or an Intellectual Property licensing agreement. Different contracts involve different laws and require expertise in them as well.
Accordingly, lawyers have to gain a functioning knowledge of different laws at the time of determining the rights and obligations, identifying the potential risks, etc. This requires them to not only know about the laws but also have a functioning knowledge of the common laws and regulations like IP laws, IT laws, labor laws, and as follows.
Suggestions
Presence of mind
The extensive working hours of an advocate do not get over with the day-to-day assigned work. The increasing number of cases brings in contract drafting work which requires attention even after working hours. Clients are the primary source of information for the cases. Irrespective of in-person or virtual mode, it is extremely essential for an advocate to communicate and talk to their clients. The presence of mind and wholesome attention is indeed required, it is one step towards achieving success in the case.
Don’t over-react
One should not react in a way that may be perceived to be judgemental or lose your viewpoint of neutrality based on facts in the cases. Once your client gets comfortable, it must be remembered that you certainly continue reacting positively.
Don’t over-analyze
It is important not to analyze the situation of clients yourself without knowing the facts properly. In case there is a need to think a little, you should. It happens most of the time, advocates end up taking the wrong decisions as a result of overanalysis and trying to provide the best remedies to clients. This in turn harms the client and affects the possible remedy that could have been achieved.
Be verbal about the things and understand the theoretical basis
Advocates have to be verbal about their time issues while handling different cases and clients to maintain the peace at work that actually can help the client. Also, it is important to keep in mind the drafting points; it provides the material facts and important aspects that are not prepared and remembered by everyone.
Conclusion
Hence, drafting is an art and what you and I do not just learn everything in one day takes a long way. What is important is your learning ability and how much understanding you want to develop moreover your interest in the matter of course. So stay calm, have patience, work hard and focus on your drafting skills enhancement. Patience is the key here, learn from every mistake as well. Hope this article helps you further.
References
- https://www.lawordo.com/legal-drafting-rules-and-tips/
- https://www.company360.in/blog/all-about-contract-drafting-benefits-common-contracts-essentials-of-valid-contract
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
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