Legal Drafting

Drafting is an art of writing. It is the skill of joining words in a chain to make it a tasty reading creating curiosity to red more and more and improves the talent in writing an article, essay, prose or composing a poem. The self inspired curiosity in a writer to improve his standard of writing compels him, without his knowledge, and makes him to enrich his vocabulary power and ultimately  his memory power becomes sharpen.

“Legal drafting" is the skill developed by Legal professionals over decades of regular serious practice and experience with devoted attention to improve their efficiency in drafting petitions, plaints, and appeals to convince the Court to impress upon to prove their cases positively.  Legal drafting may include the preparation of any written legal document--a motion, a letter, a brief, a memo, or a contract.

In my school days, my teachers used to say often to write an essay or write a letter to parents of writing a petition to be submitted to Tahsildar and so on. That was the beginning stage of general drafting where no skill or expertise is expected as it was to motivate students at the young age to cultivate the habit of writing. Though it was not intended to build up literary talent it helped me a lot in my profession stage by stage. My Law teachers and seniors in the profession repeatedly

Asked students or juniors to "Draft a Memo or process memo, or fill up vakalat form and then ask questions as to the contents in the vakalat or in the process memo or copy application because the juniors simply fill up the blanks in the printed forms and file in court, with least interest to know what they are writing about.

Legal drafting has improved and ripened as Legal literature at present. Legal drafting is a task of preparing a transaction that involves the mental exercise of thinking searching or even inventing or coining new words in a legal language, which is not done in the literary works in the ordinary usage. It is in substance underlining strategies for representing a client in a transaction, the capacity in negotiating and successfully closing a transaction. Legal writing binds the client and shuts the mouth of the author from going back from his writing. It is a legal commitment may if erred involve penalty to the client who has reposed confidence in the Lawyer. It involves greater responsibility on the part of the Lawyer than any ordinary writer.

Legal writing is a skill of planting words on paper to create rights, liabilities and duties of parties to a transaction or contract. It is the experienced version of senior Lawyers the simple sentences in plain language style is the potential for reducing mistakes. Many times the traditional legal language may pave way for hidden inconsistencies and ambiguities. There may be blunders in using stylish jugglery of vocabulary.  The best way to avoid any risky venture in using words whose meaning is not known or is capable of double meaning.  In handwritten scripts there would have been overwriting, scratches and striking off etc on paper. But now on computer such difficulties are not there. Computer has made drafting easy since correction can be made instantaneously and knows the meaning of the word used while drafting is in progress.

It is common knowledge that there is a difference between English as used in the ordinary parlance and the literature language of poets, writers, journalists, doctors, politicians, dignitaries and others. Wonderfully the Legal English is a special type of English as used by Lawyers and Judges.  Legal language is a dignified language based on logic and rules. It differs from the ordinary natural language in vocabulary and linguistic features.  It is aimed to achieve consistency, validity, completeness and soundness at the same time keeping the benefits intended to achieve for the client. Its main feature appears as if a client-oriented language used in litigations and courts but in reality it is not so. It is used to present eh opinion based on law where the interest of the client is absolutely not present. It is adopted in a presentation of papers in Law-workshops. It is the language spoken by Legal fraternity while involved in their professional work.

The writers or authors of Law books have invariably adhered to the rules of legal writing than to the normal style used by eminent scholars in literature. The history of legal literature reveals that general rules of grammar is present in all legal literature, however in India Mofussil pleadings are liberally construed without giving much importance to grammatical mistakes but take meaning intended to convey in such pleadings.  Mofussil pleadings also form part of legal literature in its broader sense.

In India, English is predominant along with Hindi. There are several local languages with and without script having their own style and rhythm to their credit. The Indian states are formed on a Linguistic basis and each state had its own recognized official language in addition to English and Hindi like Kannada in Karnataka, Tamil in Tamil Nadu, Malayalam in Kerala Marathi in Maharashtra and so on. In each language there are scholars and many have been awarded National award known as “Gnana Peet Prasasthi”, which is next to, if I may say so Nobel Award. Each language is spoken in varieties of musical chic and again the accent of the language varies slightly in some places widely, from one corner of the state to another corner of the same state.  Exactly in the same fashion English is spoken with different difficult tongue-twisting styles in different parts in the world.

I have come across UK English, US English, Indian English etc which denote the English used in the respective countries with their own style and peculiarity in accent and spelling. The Computer spelling is that of US English whereas I am used to UK English as used in India. American English is based on accent and not traditional as I UK and India for instance for favour US spell is favor. Specialised categories are spelled as specialized and categorize plus many such.

‘Legal English’ does not presuppose an illegal English because there cannot be any illegal language; though there is invariably in correct or graincorrect faulty English, whether spoken or written. I had the opportunity and experience of correcting such answer scripts as a University valuer of examination answer scripts in Law and Commerce faculties.  Legal English is known as a "sublanguage"  in the opinion of some Law teachers. Legal English differs from ordinary English as is used by common people across the globe.

The study of legal language is not taught in any school or college nor can it be prescribed in the syllabi in Law schools or Colleges for want of specialization in this kind of language that is capable of being used and understood by the members of the Bench and the Bar.

We may categorise the legal language in different types as follows:

(i) academic legal writing as taught in Law Universities, Law Colleges and  Law schools;

(ii) legislative legal writing as in statutes, Rules and regulations and in subordinate legislative language of the State;

(iii) Legal journalism as in law journals and periodicals;

(iv) Generic law as seen in Bye-laws, regulations, contracts, and treaties. 

(v) juridical legal writing as in court judgments,

(vi) Other variety of legal language specially used by lawyers to communicate with clients and opposite side lawyers relating to litigation; and

(vii) Legal literature as seen in Law texts Commentaries and Digests

Among these the style of language used by Lawyers is of  ‘reader-friendly’ which is a written communication to the litigants keeping in view the understanding capacity of such common men

But for lawyers in mofussil areas who are to communicate with almost illiterates or not much educated clients and their opponents they are required by their situation to go down to the level of  communicating with clients across cultures requiring the need for spreading legal awareness.

Whatever  may be the form of legal writing, legal skills and language skills of Lawyers forming  vital part of higher education and professional training the Legal English has particular relevance when applied to legal writing and the drafting of written material, including: documents: contracts,  licences, agreements, conveyance etc. The language in court pleadings: summonses, briefs, judgments,  and laws: Acts of Parliament and subordinate legislation, case reports legal correspondence are specially known to their standard English. Infact Legal English has been traditionally preserved by lawyers. This feature is apparent among the English-speaking countries namely the U.K., the S, Canada, Australia, New Zealand, Kenya, South Africa and India. They have adopted or shared common law traditions.

 

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