Overview - 3. Legal Drafting

Question 1

How long is the legal drafting assessment?

Answer 1

45 minutes

Question 2

What is the most basic description of the task in the legal drafting assessment?

Answer 2

Draft or amend a document so that it is legally effective

Question 3

What is the assessment objective for the legal drafting assessment?

Answer 3

Demonstrate you are able to draft a legal document or parts of a legal document for a client

Question 4

What are the assessment criteria for the legal drafting assessment?

Answer 4

1. Clear, precise, concise, and acceptable language
2. Structure document appropriately and logically
3. Ensure content is legally correct and comprehensive, and identify ethical/professional conduct issues

Question 5

Clear, precise, concise, and acceptable language - clear

Who are the three classes of party you could be drafting for?

Answer 5

• Client
• Other parties to the document
• Judge

Question 6

Clear, precise, concise, and acceptable language - clear

If the party you are drafting for is the client, what three things should you ensure?

Answer 6

They can:
* Understand the document
* Be satisfied it accords with their instructions
* Refer to it if needed

Question 7

Clear, precise, concise, and acceptable language - clear

If the party you are drafting for is another party to the document, what situation is of particular importance?

Answer 7

If the document is intended to regulate the relationship between your commercial client and consumers, language that would otherwise be suitable for commercial parties will need to be adjusted so that it is suitable for consumers

Question 8

Clear, precise, concise, and acceptable language - precise

How should you use defined terms?

Answer 8

If you describe something which is referred to more than once, define it and use the defined term consistently

Question 9

Clear, precise, concise, and acceptable language - acceptable

How should you use terms like must, shall, will, may, or can?

Which is best to convey an obligation?

Answer 9

• Must and shall convey obligations, with must being preferable
• Will, may, and can convey intention, permission, and possibility respectively

Use must to convey obligations

Question 10

Structure document appropriately and logically

Of the 45 minutes, how long should you leave at the end to check work?

Answer 10

5 minutes

Question 11

Structure document appropriately and logically

How should complex clauses, if they are to be redrafted, be dealt with?

How should an exception in the clause be referenced?

Answer 11

The clause should be split up and tabulated

Exception should have its own numbered sub-clause (e.g. clause 3.3) and it should lead the main part of the clause (e.g. Clause 3.1: Subject to clause 3.3…)

Question 12

Legal content

Why will you need to apply knowledge of substantive and procedural law?

Answer 12

To determine what the document needs to say in order to be legally effective

Question 13

Legal content

For example, if drafting a defence in a tort claim in a Disputes assessment, what will knowledge of the substantive and procedural law help with?

Answer 13

• Substantive will help setting out the nature of the defence, e.g. that no duty existed, or that client did not fall below the expected standard of care
• Procedural will help to understand the steps to take, e.g. responding to each allegation with whether it is admitted, not admitted, or denied, and if denied, what the client’s alternative argument is

Question 14

Professional conduct

What should you do if you are using a precedent and you find that it is one-sided in favour of the other side?

Answer 14

Amend it to suit the client’s best interests

Question 15

Professional conduct

What is the balance you must strike in negotiation, so as to not injure your client’s best interests?

Answer 15

You must not advance a position so unfavourable to the other side that they simply walk away, as this would not be in your client’s best interests

Question 16

Professional conduct

Why must you not assert something you know to be untrue in a statement of fact, even if the client instructs you to?

Answer 16

Because your duty to not mislead the court overrides the duty owed to the client

Question 17

Precedent

When using a precedent, what is the most important thing to bear in mind?

Answer 17

In its original form, it may not have been drafted for your client, and may require amendment to be in the client’s best interests

Amendments could be basic amendments, or deletions/insertions of entire clauses

Question 18

Precedent

Even if using a precedent, what is the first thing you should do when beginning to draft, and why?

Answer 18

Make a list of matters to be dealt with, so you can easily spot how the precedent should be amended

Question 19

Precedent

When you make amendments to a precedent, what should you ensure you do regarding a sense check?

Answer 19

Check for consequential changes of your amendments, e.g. clause/sub-clause numbers, cross-references, definitions