For our studentsCivil Suit Drafting

Certified Courses package

  • The following course is a civil suit drafting exercise only.
  • The course duration is 3 months, within which the student needs to send in his/her draft at : info@lawpreneurz.com
  • A student would be given 2 attempts to take the course, second attempt would cost him Rs.1500.
  • There are a total of 5 video lectures which would give the student an overview on how to go about drafting a civil suit. Refer to the attached slides and sample suits for a better understanding.
  • Certified Civil Suit Drafting Course for 3 months

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  • Certified Civil Suit Drafting Course with CPC for 6 months

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LawpreneurzCivil Suit Drafting

Why do we need drafting ?

One of the core skills of the civil lawyer is ability to articulate one’s thoughts, legal opinions and conclusions effectively through the medium of writing. Civil proceedings progress by way of filing of appropriate documents at every stage. For effective representation of the client an effective litigator ought to be able to draft pleadings, applications, appeals and other court documents in a precise and comprehensive manner, congruent with the overall parties’ rights and interests, and litigation strategies.

Drafting serves three primary functions

  • communicate and persuade the Court,
  • create the records , any mistake in the pleadings can have a cascading effect,
  • builds the reputation of the lawyer ( lawyer signs the pleadings )

The Course has three primary components

  • Legal Language and Legal Expression
  • The Legal Substratum
  • Analysis of Legal Documents

LEGAL LANGUAGE AND EXPRESSION

  • Elements of Good Style
    • Pleadings CPC meaning plaint and written statement but we are suing the term in its generic meaning to mean any legal document used in court proceedings minus the evidence.
    • The Language used in legal documents used in court proceedings are different from those used in everyday use or even in legal agreements.
    • The purpose of pleadings is to make claim or allegations or arguments in support or against a claim.
    The language used in pleadings has the following characteristics
    • Use of terms of art that has a defined legal meaning but unfamiliar to a non-lawyer or even a lawyer not practicing in that branch of law. Such terms of law are often in Latin or French or another foreign language.
      E.G res-judicata, culpable homicide, lis-pendens, vis major
      • Use of terms defined in the beginning of the pleading consistently.
        EG : m/S Ganesh Trading as Co ( henceforth referred to as Plaintiff no 1)
    • Repeated use of the words “shall” and “must” to express obligation may to express discretion.
      • Use of polite , and formal language.
    • Pleadings should be “clear”. The components of clarity are
      • brief and to the point,
      • must reflect the client’s case and instructions.
      • Words:
        • Use words that convey your meaning. Avoid use of adjectives or beautiful sentences,
        • avoid using heavy French or Latin words unless they are a term of art

        e.g Do not use words like “ The plaintiff was injured in the ensuing melee.”
        Use : “ The plaintiff was injured in the physical alteration that broke out between the parties.”

    • Words: Avoid using negative structures unless you are interested in softening the impact of the statement.

      e g: Instead of “ It is not impossible that this matter will not have an inconsiderable impact upon the position “

      Use: “ It is possible that this matter will have a considerable bearing upon the decision”

    • Avoid expressions like “ The petitioner was extremely distressed by the respondent’s decision to …”
      • Instead simply use ““ The petitioner was distressed by the respondent’s decision to …”
    • Sentences: Economy of expression is to be used, i.e to say unnecessary verbosity should be removed. An expression or an idea can often be expressed in a phrase or a single word. Generally choose the later.

      Eg: Instead of “ be a significant factor in” use affect or influence

      The failure to deliver the product in time was a significant factor in the plaintiff's decision to terminate the contract.

      The failure to deliver the product in time influenced the plaintiff's decision to terminate the contract.

      Some common examples: Instead of
      “ Having regard to “ use “concerning”
      “it is arguable that “ use “perhaps”
      “notwithstanding the facts” use “ despite, although”

    • One sentence should reflect one idea. No harm in splitting up a sentence in two .

      e.g: Instead of writing “ The Company , which is a sole proprietorship of the Mr. Ramprasdad Goenka, speciliases in trading agricultural commodities.

      Write
      The Company speciliases in trading agricultural commodities.It is the sole proprietorship of Mr. Ramprasdad Goenka.

    • Use passive voice in a calibrated manner. Passive voice can make the tone sound formal. It can also have the effect of deadening the impact of action by burying it in the subsidiary part of the sentence. This is convenient when one is trying to underplay some action.

      eg: The contract was signed. (passive)
      I signed the contract (active).

      It may also be convenient when the the object is being stressed.

      “ The meeting will be held”. ( passive)
      The company shall be holding the meeting.

      However over use of passive voice may lead to lack of clarity

    • Positive phrases should be used where possible.
    • Paragraph’s are used as unit of thought. Each paragraph should use a single thought. It should deal with the main idea and move on to the subordinate idea
    • Discourse Markers means how different ideas interrelate. These usually appear at the beginning of the sentences and they indicate to the reader the way in which the sentence is to be read.

      E.g: In the event the patent owner wishes to allow others to use the patent he/she must inform the registrar.

      Here in the event denotes what follows is an hypothesis. Instead of the phrase “in the event “one can simply use if.

      • Some common discourse markers and alternative phrases are as follows:-
        Function Suggested word or phrase
        Hypothesizing “in the event”, if
        Referring to the past previously
        Contrasting conversely, on the other hand
        Summarizing in short
        Beginning firstly to begin with
        Making a logical step in the argument therefore, thus, it follows
        Cause and Effect accordingly, consequently, hence, so, therefore, thus
        Emphasis even, indeed, in fact, of course, truly
        Sequence/Order first, second, third, … next, then, finally
    • Consistent use of terminology: Legal English is full of synonyms and therefore it is necessary to stick to consistent terminology.
      e.g: For example if the terminology is buyer and seller it must not change mid way to vendor and purchaser.
    • There is subtle difference between various legal synonyms. For example assign is used in reference with intangible property and transfer is used with reference to tangible property.
      These expressions therefore ought not to be used interchangeably.
  • What to avoid
    • Ambiguity : Ambiguity occurs when writing can be meant to mean more than one thing , that are in conflict with each other. It can be clarified with Anglo-American lawyers, read words and phrases in pleadings in their literal sense, rather than purpose or object of the same.
    • Vagueness arises when the language is non-committal or imprecise.
      Ambiguity and vagueness can have the legal effect of concession or admission in pleadings.
    • Sexiest/Politically Incorrect /Offensive language: People now a days have low tolerance for such languages. It makes the draft look professional , bring about challenge from the opposite side and can have an effect on vexing the judge.

      e.g: gender specific pronouns when the person might be of either sex. Say, use the term “fireman “ and the pronoun “he” to refer to the firefighters in a pleading pertaining to industrial disputes involving them.

      Also use of terms like Harijan , Mahomedan etc, that are often contested by various groups.

    • Avoid using words that have a history of litigation.

      e.g. There has under the Arbitration & Conciliation Act 1996 the term “ venue” had a history of litigation and case laws until it was decided finally that the term is not “seat/Place of arbitration” within the meaning of the Act.

  • The Formal and Sanitized Legal Language
    • The use of passive voice and third person. This makes the tone sound formal . ( But also see the disadvantages of the same).

      e.g.: I pray to the Court that the remedies be given.
      Use: The plaintiff prays to the courts for following remedies.

    • Dates : In British English dates are written as 2 August 2019 and in American English it becomes August 2nd 2019. However in India it does not matter, maintain a constant style through out. One can also write it in dd/mm/year combination.
    • Numbers: The CPC mandates that all numbers be written in words. Rs 1,18,000/- is thus written as rupees one lakh eighteen thousand.
    • Decimals are always written with a (.) as opposed to (,) in some European jurisdictions.
    • Citations:
      • Statutes should be written without a comma between the name and the date e.g: Arbitration and Conciliation Act 1996
      • Case name should be written in whole , in italics , followed by the reporter where it appears
        e.g :Bhatia International v. Bulk Trading S.A. & Anr., (2002) 4 SCC 105.
    • The correct terminology must always be followed. In law the terms of the art are either statutorily defined , or have evolved a certain meaning under case laws and must be referred as such.
      Examples of the same involves “waiver”, “estoppel”, “res-judicata” etc.
    • It is a bad idea to replace a term with a descriptive phrase.
      e.g.: Instead of “ The accused stabbed the deceased to protect himself.”
      Write “ The accused stabbed the deceased in self-defense.”
    • Foreign terminology and legal maxims :Sometimes foreign terminology is used for example terms like “de-novo”, “inter-alia” , ad hoc and “force majeure” .
    • Some times the foreign terminology is a legal maxim a principle of law often expressed in a latin phrase. They are particularly common in procedural law, statutory interpretation and property law. There have to used when necessary.
    • Some of the legal maxims are common , some are more obscure. It might be a good idea to write the English meaning of the term in bracket if , the meaning is more obscure.
      See ANNEXURE 1 , a glossary of foreign terms and their meanings ( not maxims).
    • Use of appropriate verbs: To make the pleading sound formal, it is necessary to use the appropriate verbs , and not casual wordings
      • Thus a suit is “instituted”, an application made and an appeal is preferred and not filed. ( not filed)
      • An order is “issued” or “vacated”(removed)
      • A proclamation is “made”
      • A court “considers” a matter and does not “deal with it”
      • A court “mandates” or “holds” or “decides” a matter it does not “say” or “deals with “ the matter.
      • A court is “seised”of a matter and a magistrate takes “cognizance "of an offense.
      • Jurisdiction “exists” in a court or is “exercised”.
      • A decree is “executed” while an order is “enforced”.
      • A petitioner /plaintiff “prays” for a relief .
      • A litigant “submits/respectfully submits/ humbly submits ” before the court.
      • A point is “alleged” or “contended”.
      • An issue or a point is “agitated”, or “pressed”.
      • An award is set aside
    • Shortcut expressions: Sometimes to shorten the lengthy drafts it is permissible to use short expressions to for longer words and phrases.
      Examples include :-
      • “Read with” can be shortened to r/w
      • “Under section” can be shortened to u/s.
      • Section can be shortened to “s.”
      • Honourable can be shortened to “Hon’ble”
      • Learned can be shortened to “ Ld.”

      Another way of shortening is to use “here”, “there” and “where” words

      e.g.: “Thereafter” means after that time.
      “Hereby” means “as a result of this.
      Annexure 2 contains a list of the “here and there words”

    • The doublets and triplets: In Legal English sometimes two or three words are stringed together to convey the same meaning.
      Some examples are
      Doublets
      Able and willing means able
      All and sundry means all”
      Cancelled and set aside means cancelled
      Custom and usage means custom
      Fit and proper means fit
      Goods and chattel means goods
      Null and void means void
      Part and parcel means part
      Null and void means void
      Repair and make good means repair
      Sole and exclusive means sole or exclusive
      Terms and conditions means terms
      Impugned judgment and final order means the judgment under challenge
      Triplets
      Dispute , controversy or claim means dispute
      Hold possess and enjoy means hold
      Repair, uphold and maintain means hold
  • Narrative Building

    The idea is to tell a story that is plausible and can be substantiated through evidence.

    • Chronological sequence of the narrative must be entered.

      e.g: Red & Blue entered into a contract dated 2.07.2017 . The contract was novated on 2.08.2018 whereby clause 18 of the said contract was amended. The amended clause 18 was breached on 2.10.2019 when Red failed to deliver the goods on the appointed hour.

      Incorrect usage
      The contract between Red & Blue was novated on 2.08.2018 whereby clause 18 was amended . The contract was entered into on 2.07.2017. The amended clause 18 was breached on 2.10.2019 when Red failed to deliver the goods on the appointed hour.

    • The drafter has a three step agenda
      • S/He has to establish the “cause of action”.
        “Cause of action “ means a bundle of facts on which the right to sue rests. This is done through stating the “ material facts” defined as “all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defense.”
      • The “convenient narrative”
        In civil pleadings the parties are obligated to disclose all material facts. However the parties can always give their own interpretation of the same. However the drafter has to remember that the narrative needs to be within the confines of the CPC Rules, and needs to be established with case laws.

        e.g.: Material facts are (a) the testator was old, (b) he transferred the property to the defendant.

        But what is the implication of the “old age” ? May be he was old and infirm and was “unduly influenced” by the defendant. The old age is therefore an useful component of the narrative. The plaintiff can use attendant facts like the defendant used to meet the testator everyday, or that the testator took medicine for depression or was of forgetful disposition, to show that he was in a weak frame of mind and therefore open to be influenced.

        The draftsman for the defendant has the duty to repel this narrative. He/She can show that the testator was an old man , who was of sound mind but who felt betrayed by the som ( the plaintiff) and transferred his property

      • Choose appropriate reliefs.

        Ultimately the purpose of the suit is to seek relief from the court. The relief must reflect the case that the party seeks to make. The relief sought must be based on (a) party interest, (b) the applicable law and © the narrative in the pleadings

        e.g. If the plaintiff has stated in his plaint how he has been evicted from his land in violation of his tenancy lands, he can seek recovery of possession but not title to the land.

How to process case laws and precedents /

A case law can be broken up in three parts.

  • Court: The court system is organized in a hierarchy , so higher in the judicial hierarchy the decision arises , higher is its binding power. So a Supreme court decision has stronger value as a precedent than a High Court one. The decision of a District court or lower has no value as a precedent. Similarly a larger bench of the Supreme court has higher binding force than division bench. A constitution bench ( 5 judges or more) have higher binding power than a larger bench

    However it must be remembered that confirmation bias plays a role in judicial decision-making. Absent a direct decision of Supreme court, a given High court is far more likely to abide by a decision given to it earlier, than a different decision by another High court.

  • Procedural history: The case especially one before the High court or the Supreme court has travelled through the hierarchy of courts. It is essential to know the steps it has gone through before reaching the present court. This is essential because each step , the decision is based on the earlier step. So the first appellate court’s decision was based on what the trial judge held and the Division bench of the High court was reacting to what the High court held.

    Also different kind of suit , appeal , review and revision has different standards of judicial review . So it is essential to know what was the nature of the suit, recourse against the suit (appeal, review or revision) and the nature of the remedy sought.

  • Facts and arguments: The third component of understanding a case law are the facts on which the decision is based. Though case laws are based on the legal principles, the facts allow to contextualize the principle.

    e.g. : Case Red v Blue pertains to the applicability of s.5 of the Limitation Act (condonation of delay in filing appeals, applications…) whereby the Supreme court held that s.5 has to be liberally constructed. In the case, Red had sought condonation of delay in filing its appeal in view of an earthquake in Bhuj where it was based.

    In a subsequent case the petitioner who seeks condonation of delay shall use Red v Blue to mean that delay in all appeals must be condoned in view of the liberal construction of the section The defendant would try to distinguish the decision from the facts of th present case on grounds , that “ liberal interpretation” applies only when a force majeure event is involved.

    Foreign case laws especially from England , USA or the Commonwealth have persuasive power insofar as the principles inherent in them are often followed.

LawpreneurzDetails of lecture

Sr No. Topics
Lecture 1 Annexure 1
Lecture 2 Annexure 2
Lecture 3 Appeal Practice Problem
Lecture 4 Drafting Course
Lecture 5 Naam Appeal Example
Lecture 6 Plaint Challenger Problem
Lecture 7 Plaint Practise Problem
Lecture 8 Sample Suit
Lecture 9 Sample WS

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Shipra DhankerTopper for Delhi Judicial Services 2019