Wednesday, August 29, 2018

Good legal drafting explained ...

I often see questions about legal drafting.

What is good legal drafting? In the modern era, good legal drafting, is just good English drafting.

Yes, you check legislation and case law, but then you set out the positions of the parties in as close to ordinary everyday speech as you can, and in as accurate and specific manner as you can.

Legal drafting is just writing, and writing is just communicating with letters and grammar instead of vibrations in the air.

Obviously, there are some rules, such as keeping as close to one point in a clause as possible, and numbering your pleadings and paragraphs in affidavits, but those are simply an outside form to help you, your opponent and the court out a little.

So, get over this idea that good legal drafting is some sort of 'witchcraft' ritual where you always must use the perfect words, and where 'spells' that have already succeeded are much sought after. Rather look at the substance and argument which succeeded for others.

Look to the case law, legislation, regulations, and to the logical parts of your inner mind and soul. Make a case with your words, one which would convince an average person, and even convince someone who often has words thrown their way. The basics of logical argument are essential here: make sound, cogent points. Use logic as a weapon.

Draft from your mind. Write out a case for what you want and then pray to the court for it, or demand it of your opponent, or place a spot for parties to sign it.

It isn't nearly as difficult, and pleadings, affidavits, and legal documents (besides the sort of stuff that goes to the deeds office) are not nearly as fragile as you might have been brought up via university to believe. Law is practical, and while process and form are important, far more of it is substance than anything else.

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