Drafting and Pleading

Pleading-Conveyancing and Oral Argument: Khyber Pakhtunkhwa Judicial Academy Peshawar

PLEADING AND CONVEYANCING

Contents

  1. Legal drafting
  2. Drafting of pleadings
  3. Replication and better statement
  4. Return and Rejection of plaint
  5. Orator-ship skills

Refer Code of Civil procedure

LEGAL DRAFTING

Legal drafting is one of the most intellectually demanding of all lawyering skills.

The creation of legal document includes: Agreements ,Legal Documents ,Litigation claims and complaints, Legal Opinions AND so on

It requires knowledge of the law, the ability to deal with abstract concepts, investigative instincts, an extraordinary degree of prudence, and organizational skills.

METHODOLOGY

How to make a draft: Inexperienced in job commits mistake by using defective languages, which does not express fully the intention of the executant. Such a scribe may use such language, which is capable of being understood in more than one sense.

A scribe well versed in drafting would use balanced and perfect language.

He shall express the executants intent in unambiguous language and contained in
formal style.

He must be also aware of at-least basics relating to subject matter .

  1. Put the important material up front
  2. Give a proper context
  3. Build on that context
  4. Build a container in readers mind

DIVIDE PARAGRAPHS

  • Paragraph tells the reader what is coming Should convey information
  • Headings gives a breath & break to the reader

LAYOUT

  1. Form is important
  2. Use standard fonts
  3. Use proper margins
  4. Properly align all the paragraphs
  5. Check the documents carefully
  6. Keep it short

STRUCTURE

  1. Active voice
  2. Proper use of punctuation
  3. One word is usually enough…
  4. Avoid unnecessary preamble.. It may be recalled that….it is interesting to note that..
  5. Use names of the parties … names remain the same

ARTICULATE YOUR POSITION

  1. Be clear and straightforward
  2. Be direct and upfront
  3. Powerful introduction and conclusion
  4. Be credible
  5. Maintain integrity
  6. Never exaggerate
  7. Know your boundaries

VETTING COMMENTS (NECESSITIES)

  1. Command over law
  2. Command over the language and grammar
  3. Practice makes the man perfect
  4. Check and recheck
  5. Think about the legal and factual implications
  6. Ponder over the direct and indirect meanings
  7. Think twice before adding, amending or subtracting technical details/ data
  8. Consistency in language, tense and content
  9. Avoid duplication
  10. Legal language
  11. Legal formalities
  12. Use lead pencil
  13. Use standard signs
  14. Know the court
  15. Be familiar with local Rules
  16. Take Notes
  17. Brief from A/D
  18. Consult record.

WHY PLEADINGS?

  1. Stance of the parties made known
  2. The matter in issue is shrinked
  3. Court is assisted and time is saved
  4. Conflict is restricted… cant go beyond
  5. without the leave of the court
  6. Prevent multiplicity of litigation
  7. Advance Justice
  8. The details which the opponent has to answer

PLAINT- Important points

  1. Plaint should be in accordance with (O VI, VII, CPC).
  2. Pleadings 0 VI, Rule 1 CPC.
  3. Contents of pleadings 0 VI, Rule 6 CPC.
  4. Appendix A CPC. (Forms, O VI Rule 3 CPC)
  5. Particulars in pleadings (0 VI Rule 4 CPC)
  6. Better statement (0 VI Rule 5 CPC)
  7. Condition of precedents (0 VI Rule 6 CPC)
  8. Departure in pleadings (0 VI Rule 7 CPC)
  9. Denial of contract (0 VI Rule 8 CPC)
  10. Documents (0 VI Rule 9 CPC)
  11. Malice (0 VI Rule 9 CPC)
  12. Implied contract (0 VI rule 12 CPC)
  13. Presumptions (0 VI rule 13 CPC)
  14. Signature (0 VI Rule 14 CPC)
  15. Verification of pleadings (0 VI Rule 15 CPC)
  16. Striking out pleading (0 VI Rule 16 CPC)
  17. Amendment of pleading (0 VI Rule 17 CPC)
  18. Particulars required in a plaint (0 VII Rule 1 CPC)
  19. Procedure of admitting plaint (0 VII Rule 9 CPC)
  20. Documents sued on (0 VII Rule 14, 15, 16 CPC)
  21. Address with the plaint and consequences of failure to file address, change of address (0 VII Rule 19, 20,21,22 CPC)
  22. List of legal representatives (0 VII Rule 26 CPC)

PLAINT-Ensure that:

  1. names of the parties and their addresses are mentioned in the heading of the plaint
  2. the claim is precisely stated
  3. the cause of action is clearly stated
  4. the court has jurisdiction
  5. the suit is properly valued for the purpose of court fee and jurisdiction
  6. plaint has material for effective adjudication

WRITTEN STATEMENT

  1. Written statement should be ensured to be according to O 8, CPC.
  2. When parties are not at variance, procedure laid down in O. 12 & 15 CPC may be followed.
  3. For better statement, procedure contained in O 6, R 5 may be followed.
  4. Permission for amendment in written statement may be given per O 6, R 17, CPC.
  5. Timely procurement of written statement (0. 8 CPC/),
  6. Setoff
  7. Consenting written statement
  8. Replication
  9. Bold denials
  10. Evasive denials
  11. Cognovits
  12. Affidavit of facts

Ensure that:

  • The court has jurisdiction
  • All the facts are specially pleaded
  • The preliminary objections are relevant.
  • All the points raised in the plaint are properly answered
  • There is no evasive denial
  • In case of set off, proper court fee is affixed.
  • Necessary material for effective adjudication

REPLICATION AND BETTER STATEMENT

  1. Order 6 Rule 5 CPC
  2. Order 8 Rule 9 CPC

IMPORTANT DO’S 

  1. Clear
  2. Prolix/verbose
  3. Concise
  4. Protracted
  5. Material facts
  6. Wordy
  7. Definiteness
  8. Argumentative
  9. Precise
  10. Evidence
  11. Claim …specific
  12. Law
  13. Consistent Signed Verified
  14. Not to push Irrelevant

RETURN OF PLAINT

Text of Order VII Rule 10:

The plaint shall at any stage of the suit be returned to be presented to the Court in whom the suit should have been instituted.

Procedure on returning plaint; on returning a plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

The plaint shall be returned as soon as the fact of its being placed before the wrong forum comes to the notice of the court. The term at “any stage” include the appeal stage. However every effort should be made to determine the jurisdiction of the court as soon as the plaint is filed.

Where the court having no jurisdiction gives its verdict; its decision is coram non judice and is not binding on anyone.

REJECTION OF PLAINT 

The court is under a duty, before issuing any summons, to examine the plaint and shall reject the plaint if;

  1. It does not disclose a cause of action.
  2. Where the relief claimed is under-valued and not corrected after the court has requested
    revaluation.
  3. The plaintiff has failed to furnish the court with sufficient stamp-paper within the time allowed after the request.
  4. The suit appears time barred.
  5. The grounds are set out in 0.VII.r.11. the above grounds for rejection must be based upon defects that are on the face of the plaint alone, which the judge in his own deliberate judgment make a finding. Before rejecting the plaint, the judge must record an order to that effect with the reasons for such order. Such rejection does not by itself preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action (0.VII.r.10-r.13)

ORATOR-SHIP SKILLS

Power of persuasion .

Aristotle identified three components of communication that if followed correctly would
make for the most powerful method of conveying ideas. He highlighted Ethos, Pathos, and Logos. Ethos involves gaining the respect of the listeners, Pathos is the appeal to the listeners’ emotions, and Logos includes the facts used to convey a message.

The Big Idea:

It is important for the pleader to get to the main points of the arguments. Give the P.O something that he can take with him.

Artful Pause:

Taking a moment of silence before beginning is a method of gaining the attention. This strategy adds weight to the words about to be said

Be Authentic and polite

Use legal wording and a tone that would appeal to the logical and legal mind.

Confidence –

It requires lots of inner strength to go up and face several pair of eyeballs who are eager to hear to what you want say next.

Good content –

The content of the arguments is also extremely important. The content should be precise to the point on the same hand it should also convey your facts of case and legal points

Good structure –

The structure of your arguments is also very much important factor. It should have brief introduction, interesting body and good ending.

Tone –

The flat and monotonous tone actually puts audience into sleep. Really, I’ve been to sound sleep so many times while listening to the talks.

Memory power

This is utmost required property for a good orator Glancing through small notes may
help to remember the points so that you can refer during the oration. But constant looking at notes or reading out whole arguments may not amuse the PO.

Practice

To acquire decent amount of focus, optimum speed of speech delivery , a good tone
fluctuation, a good body language requires fare amount of Practice.

Length

If any duration is mentioned for your arguments, please stick to the timing. You should
not drift off the topic. If your purpose is not met, then you can ask for extending the time and try to complete within the time limit.

COMMON MISTAKES

  • Casual approach .Stereo-type comments/replies
  • Non attachment of proper documents
  • Mention of non verified facts
  • Non consultation with the department
  • Responsible officer of AD if proposal of ADR is floated
  • Correspondence with the department conveying the
    matters regarding court proceedings/ order sheets
  • None balance between Quality and Quantity of work
  • Deficiency of material provided
  • Disrespectful behavior
  • Lack of proper knowledge of Principle and
    subordinate legislation
  • No briefing before evidence
  • No data collection/Technical details

REMEDIES/ POINTS TO BE REMEMBER

  1. Proper knowledge of High court Rules and orders
  2. Effective liaison with the concerned departments
  3. Effective control over subordinate staff
  4. Maximum time may be spends in court
  5. Preparation of stage wise list of cases and its communication to the departments
  6. Inter personal communications
  7. Brief and to the point
  8. Follow-up of correspondence and court directions
  9. Court and Case Management
  10. How to protect government interests
  11. Call for final draft on facts and give it to legal shape
  12. Specific denial
  13. Clarity in comments
  14. Evidence in accordance with the pleadings
  15. State material facts
  16. Interim order/ interrogatory order
  17. Material facts
  18. Know the judge
  19. Ruling in previous cases
  20. Conduct in the court room
  21. Review the judicial opinion before drafting
  22. Know the judges preference

Khawaja Wajihuddin ( Khawaja Wajihuddin) Dean Faculty Khyber Pakhtunkhwa Judicial Academy-Peshawar, Pakistan

Categories: Drafting and Pleading

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