Legal drafting is the process of preparing legal documents, contracts, agreements, pleadings, or other legal instruments in a structured, clear, and precise manner. It involves creating documents that are legally enforceable and adhere to the rules, laws, and legal standards of a specific jurisdiction. The aim is to ensure that the language used in these documents is unambiguous and accurately reflects the intentions of the parties involved.
Legal drafting includes various types of documents, such as:
- Contracts (e.g., business agreements, employment contracts)
- Wills and trusts
- Legal notices and petitions
- Corporate resolutions
- Pleadings in litigation
- Statutory provisions
Process of Drafting
The drafting process functions on two fundamental planes:
- The Conceptual Plane
- The Verbal Plane
In drafting, it is not merely about finding the appropriate words but also about developing the right concepts. The draftsman’s task is twofold: first, to think clearly about the structure and ideas that need to be communicated, and second, to express those ideas effectively through composition. This makes drafting a blend of intellectual planning and linguistic expression, where conceptual clarity precedes verbal articulation. Thus, the quality of a draft relies equally on well-formed thoughts and precise language.
Key Characteristics of Legal Drafting
- Clarity: Legal documents must exhibit clarity and precision in both individual sentences and the overall structure. There should be a logical flow between sentences and paragraphs, ensuring that the content is coherent and relevant to the subject matter. The draft should clearly communicate what is intended, avoid irrelevant details, and exclude unnecessary information. Familiarity with the relevant legal provisions is crucial for drafting effectively.
- Elimination of Ambiguity: The document should avoid ambiguity, ensuring that each statement conveys only one clear meaning. Any potential for misinterpretation must be removed to ensure the document’s purpose is understood without confusion.
- Precision: A draft should be concise and to the point. It must fully convey the intended message while remaining succinct. The language should engage the reader and inspire confidence in the content.
- Unilateralism: While drafting, it’s essential to be open to reviews and feedback, but this should not result in the incorporation of irrelevant or unnecessary changes. Focus on safeguarding the primary interests by maintaining essential content that protects legal standing.
- Chronological Consistency: If the document serves as a supplement to other legal documents, it must be consistent with the master document and any other related supplements. Referencing and drafting information in chronological order ensures coherence and compliance with the master document.
- Definitions: Important terms and concepts should be clearly defined at the beginning of the document. These definitions should be used consistently throughout the draft to avoid confusion and ensure uniformity in interpretation.
- Adaptability: The content of the draft should be adaptable to the specific facts, circumstances, and legal framework of the case at hand. It should also be feasible in terms of enforcement.
- Lucidity: The language used in the draft must be clear, simple, and easy to understand. Long sentences or complex paragraphs should be avoided. The draft should be written in a polite tone that fosters a positive impression, ensuring it is comprehensible to a person of ordinary intelligence.