The common perception of law students and even lawyers in drafting a document is to “scatter” the readers’ brain with big grammar. The more complex your drafting is the smarter you think you are, right? Like when one says “… me lord, it’s unambiguous, unequivocal and crystal clear from the undisputed facts of this case that there was no offer and acceptance between the parties and as such the contract is null and void, thus, there is no valid contract. Clap for yourself, THE LAW! The walking dictionary has spoken.
Let’s snap back to reality, yes, you have spoken, but the real essence of your speech/brief is communication, so have you communicated? I don’t think so.
Legal drafting is not about the big grammar, the tautology, the unnecessary emphasis and drafting documents like a maze tournament. Legal drafting is the art of drafting legal documents accurately, orderly, clearly in a way that best communicate the interest of your client.
Most budding lawyers do not pay much attention to legal drafting; they are mainly concerned with oral prowess and advocacy. They fail to realise that drafting is an important tool in advocacy. A solicitor, who could not represent his client’s case clearly in the brief, would find it difficult to represent the interest of his clients especially at appellate courts. A good case can be destroyed and lost by bad pleadings, it is important for counsels to pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.
Here are some common mistakes we make when we draft documents:
- Use of archaic words
Archaic words are ancient words, which are no longer in use in this modern day. Examples of such words are; hereinafter, witnesseth, hereinaforesaid, etc. let us leave the Shakespeare English for the Shakespeare era and embrace our modern day use of words. The legal profession in following precedent forget that even those words have evolved and should be edited to suit the evolution.
2. Use of passive language
In general, prefer the active voice over the passive. Using the passive voice can cause confusion. It’s best to have the subject of your sentence do the acting and have it precede the action. Using an active voice is better, simpler and direct; it distinguishes who is doing the act and who the act is being done to, easily.
Instead of; the young boy was battered by the man (passive)
It is better to say; the man battered the young boy (active)
The use of passive language in most case is vague, evasive, unnecessary, and should be avoided unless the drafter wants to conceal the subject on purpose.
3. Use of redundant words
These are unnecessary word that if removed from a sentence will have no effect on the meaning. Such words should not be included in drafts, as it only makes it bulky and difficult to read. E.g.:
“The tenant shall from time to time, every fortnight, carry out such sanitation and maintenance as the land lord thinks fit…”
“The tenant every fortnight shall carry out sanitation and maintenance as the land lord thinks fit”.
4. Use of inconsistent terms
This is when the drafter uses different words of the same meaning interchangeably, or shuffles between the British and American English. Examples;
The use of assignor/vendor, mortgagee/ lender interchangeably
The use of colour and color, privilege and privildge, defence and defense , and so on.
- However in Nigeria it is the British English that is acceptable.
Inconsistency also occurs when there is a mix up of terms like saying “the testator assigns…” which is incorrect as the testator of a will does not assign but “bequeath or give”.
5. Use of tautology
This is the most common flaw of legal drafting, it entails saying the same thing in different words, like a repetition of what was previously said. Examples are:
Last will and testament (a will is also a testament)
Null and Void (what is null is also void, they both mean for something to be of no effect)
Full and final (these words mean for something to be conclusive)
Unequivocal and unambiguous/ crystal clear (they all mean without doubt)
And the list of this double or triple decker words are endless.
Writing is something that cannot be evicted from the legal profession, that’s why one of the invaluable assets that a counsel must always possess is good drafting skill, to draft documents and briefs.
In concluding, I’ll leave you with the words of Abiru J.C.A. in the case of Nagebu Co (Nig.) Ltd v. Unity Bank Plc. [2014]7 NWLR(Part 1405) 42
“The brief of arguments of the appellants consisted of forty-two pages. It was unnecessarily long, windy, confused, confusing, repetitive, and it contained too many narratives rather than arguments….. The brief of arguments of the appellants in this appeal is a clear example of how not to draft a brief of arguments”.
Aisha Salami is a law graduate of Lagos State University awaiting to be admitted to the Law School.
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