Day 2: Fundamentals of Legal drafting and advocacy

 

DAY 2: Fundamentals of Legal drafting and advocacy

DATE: March 5, 2024

MODERATOR: Peace Eseyin

TIME: 5pm

GUEST SPEAKER : Obed Okocha

Biography of the guest speaker

Ugochukwu Obed Okocha is a legal practitioner proficient in legal writing, analysis, drafting, and research. He has a history of demonstrated capacity and enthusiasm for work; he has an analytical mind for providing solutions to legal problems and is a quick study. Obed is also a promising disputes lawyer with impressive knowledge and hands-on experience in trial advocacy. He has keen interest in Law and Economics, taxation and International arbitration.

Social media handles

LinkedIn : Ugochukwu Obed Okocha

X: Obedokocha10

LEGAL DRAFTING

Legal drafting simply put is the act of creating legal documents to serve specific purposes which could range from contracts to agreements and regulations and what have you. It is essential to note that legal drafts have to contain perfectly chosen words which are concise and articulate, they should not be misconstrued or be left to ambiguity. 

The drafts should communicate a purpose and the purpose for which it is written should be easily understood by the audience. For this reason, it is essential that the drafts should be written for the audience and not for Lawyer. This means, it should be broken to the understanding of the audience without losing the legality of the said draft. To create a legal draft there are certain requirements that need to be met before the said letter has its validity. One of the mostly used forms of drafting is the prosaic form.

A letter of demand using the prosaic form

A letter of demand is usually drafted requesting from the defaulter, a certain thing to be done or for a change to be effected. It can also be drafted for the purpose of preventing the future occurrence of an event such as an eviction. For a letter of demand, the steps may include:

The letter head: this usually consists of the name of the Lawyer’s firm, or the place the Lawyer works in. It may include the email address of the company and the company’s phone number. This is to ensure the validity of the said company.

Attention: this is usually the formal address of the recipient. The letter is to be brought to her “attention” that is, the address of the person or defaulter. For example:

Miss BabySteps Ofpain,

No. 123 Abido Shaker,

Bahose.

Rubrics: this consists of the heading of the letter, that is, what the letter is for. If it is a letter of demand, it should be stated. For example: A letter of demand to desist from the breach of tenancy agreement.

The prosaic form: after the heading, the prosaic format entails that a brief statement of the facts must be told. However, this must be done succinctly and clearly. It must be short and easy to understand. Most draftsmen usually use paragraph markers for ease of reference such as: 1.0, 1.1, 1.2… If this is employed, then the brief statements of facts will be in paragraph 1.0. Furthermore, it is important as a draftsman to know the whole facts of the case to avoid ambiguity or wrong citations.

Identification of the parties: this is usually done in the first paragraph to avoid the repetition of names throughout the document. For example: …Mrs. BabySteps Ofpain, hereinafter referred to as my client, was… This will curb the repetition of the name of the said client. Also, the defaulting party should be identified. For example: …Mr Ndaboski, hereinafter referred to as tenant, should… or the defaulting party may be substituted with the pronoun “You,” since it is already addressed to the party in question.

The subsequent paragraphs should contain the responsibilities of the parties, that is, what the parties should do, should have done, or had failed to do. After that, it is necessary to show what may occur if the defaulting party does not desist from the act.

Signature: it is important that the legal document is signed. The signature confers legality on the document and makes it admissible in court. Usually, the signature is preceded by the formal closure “Yours faithfully.”

Summary

One has to be meticulous while drafting because simple words such as “shall,” “will,” “may,” can lead to structural changes and confer different meanings. Furthermore, stating that a deed “is” instead of “was” connotes that there has to be a recital procedure of the deed which is mentioned. This evidences the importance of careful placement of words and the choice of the said words. 

There has to be a structural flow. The draft should follow a seamless stream from the inception of the statement of facts of the problem till the events that may occur if the defaulter persists or refuses to do the recommended.

ADVOCACY

Advocacy and legal drafting are intertwined, they both demand a great command in English language. The hallmark of advocacy is excellence and this excellence stems from being knowledgeable about the rules of court. An excellent advocate must understand what should be said and at what time it should be said. This goes to the heart of education and taking it seriously.

Moreover, to be a good advocate, one must be a voracious and insatiable reader. This is due to emerging or changing principles which may render the current principles inapplicable. An excellent advocate should not hold on to archaic rules. 

Practise makes perfect and this should be the catchphrase of an excellent advocate. Recurring speech practice enhances the vocabulary and makes the advocate more eloquent. 

Summary

An advocate who knows the substantive law has solved half of his problems. For instance, an excellent advocate because of his knowledge in substantive law, knows that defamation is both a civil wrong and a crime and can pursue it simultaneously since the rule of criminal superiority was abolished in the case of Smith v. Selwyn. Therefore, strive to expand your knowledge on current issues.

Q&A

Q: Why are cases entertained in court not in the way they have come?

A: This is due to several reasons which may range from the seniority at the bar, that is, those who were called to the bar earlier may be entertained before those who were called later. Also, if a Senior Advocate of Nigeria has a court matter in that same court, the court may choose to entertain the S.A.N before others. However, it is to the prejudice of the judges, some may adhere to the order regardless of the status of the advocate.

Q: Is it a drafting rule to always start each paragraph of an affidavit with “that?”

A: No, it is archaic and it is an unnecessary repetition of the word. Draftsmen should eschew the word “that” if possible.