| Drafting, Pleading and Conveyancing

This is a mandatory course as per the Bar Council of India regulations.

Students will be furnished copies of the Handouts (as was done in CPC1 and CPC2) at the start of the course which will outline in detail the topics covered and the relevant statutory provisions. In addition, formats for each type of document to be drafted will be included in the Handouts. For each class, students will be expected to read and familiarise themselves with the Handouts- which will be the mandatory reading for the course. The prescribed text-books are largely used as additional sources for formats and drafts.

In a typical class, the Course Teacher will first outline the broad principles under the topic being studied and then the class will read the statutory provisions. We then move on to the format for each type of document prepared as per the statutory rules. For each type of document to be discussed in class, 5 students will be identified before-hand and will be required to lead the discussion on the rules and points to be kept in mind whilst drafting such a document. The other students will also be expected to have read the rules and should actively participate in classroom discussion. Students who have worked on or are working on a project that involves the topic under consideration might be required to make a presentation in class- this will help the class explore several tangential and intersecting themes. For example, whilst studying drafting of Plaints in civil suits, a student who has made a project on a Plaint prepared and filed in the Delhi High Court might make a presentation upon the particulars of Plaints under the Delhi High Court rules. Socratic discussion is welcomed. There will be Mock-Tests wherein students will be expected to solve practical-type questions and draft documents in class.

Furthermore, students will be expected to do their projects on actual case-records that may have secured during their internships or that may be supplied by the Course Teacher. A maximum of 3 students may collaborate on a project together. Thus, projects will involve studies of real-life briefs and documents. Students are expected to supply the case briefs in neatly spiral-bound and paginated volumes to the course teacher. The briefs should also contain an index.

The projects submitted to the exam department based on the case-briefs will consist of three parts:

1. Chronological List of Dates and Events tracing the trajectory of the case from cause of action occurring or crime occurring (in case of criminal matters) to the current status of the case;
2. Analysis of the case – this is an opportunity to show how much of the case you have studied, and your analysis of the events that have occurred both in and out of court. Such analysis may even be sociological.
3. cA draft of either a plaint, written statement, review petition, special leave petition, appeal, or any other pleading involving the case in question.

Pleadings in civil suits are generally understood to be statements in writing drawn up and filed by each party to a case, stating what her contentions will be at the trial and giving all such details as her opponent needs to know in order to prepare her case in answer. The judge relies upon the pleadings to understand the case and effectively control the conduct of the litigation.

The drafting of pleadings is a science as well as an art.  On the one hand, counsel needs to have a rigorous understanding of substantive provisions applicable to the case on hand, any particular procedural provisions relevant, the format in which the pleading should be prepared, as well as the customs of the Bar as to what constitutes acceptable language and terminology. For example, whilst drafting a Plaint in a suit for declaration of title and injunction, the counsel will need to know the relevant aspects of the Transfer of Property Act, 1882 (upon which his cause of action is founded), the law of specific relief contained in the Specific Relief Act, 1963 (since the prayers in the plaint will be based on  what reliefs are permissible as per that Act), the general rules in the Code of Civil Procedure, 1908, for the drafting of a plaint and the “micro-mini” rules contained in the Karnataka Civil Rules of Practice, 1967, regarding format, cause-title, etc. Further, the Plaint will have to be drafted within the contours of certain customs and traditions at the Bar as to what constitutes acceptable language.  The language employed should be sober and restrained – not bombastic or flowery. Scandalous, frivolous or vexatious allegations against opponents should not be made. Aspersions should never be cast upon the counsel or judge. Factual aspects should be conveyed with clarity and succinctness. All this “scientific” knowledge is essential so that the pleading in question is accepted by the receiving clerk of the registry without objection and also so that no objection is raised by the judge or opposite counsel about the pleadings.

On the other hand, the drafting of pleadings is equally an art to be cultivated with perseverance and practice. In our adversarial civil justice system, a lawyer is entitled to act in a partisan manner to put forward the best possible case for his client. He must not suppress material facts. He should not encourage the client to swear to false statements in the pleadings. Nor should he try to mislead or hoodwink the court or opposite side. But within the acceptable framework of what constitutes legitimate pleading, he can use his skill, expertise, experience and creativity to get the best possible results for his client. Needlessly revealing the evidence upon which you intend to rely upon in the trial or making an unwarranted admission can give your opponent advantage. You can use your craftsmanship in such a manner that a judge reading the pleading is impressed with your case and starts to believe your version of the story. The challenge is to win your case within the acceptable framework of what a lawyer can legitimately do. And words are all we have.

Conveyancing is said to be that branch of the law concerned with the preparation of documents for the conveyance of property. Needless to state, the points made above are equally applicable to conveyancing as well. One needs to have a thorough knowledge of property law and the procedural law applicable to property transactions.  But in addition, the draftsman must use his skill in creating a document that clearly expresses the true will and intention of the executors and that will not give scope for litigation in future.

What makes a lawyer?  Arguably, there appear to be at least five elements. First, knowledge of the law and the ability to apply that knowledge to the case on hand or “research” ability. Second, the ability to draft pleadings and other documents (conveyancing) efficiently for courts and clients by using one’s research and drafting skills. Third, the ability to argue one’s case in court.  Fourth, client counselling skills. Fifth, office and clerical management. Sixth, the ability to build up your practice in the legal “marketplace” and find a niche for yourself.

Now, unless you have a good knowledge of substantive and procedural law, how can you draft? And further, if you cannot arrange your thoughts and put them down on paper in a clear and succinct manner whilst drafting (when you have all the time you need), how will you argue in court – when you have much less time to think and organize your thoughts?  How will you counsel your client on the effectiveness of the deed drafted by you if you are unable to draft the deed efficiently? Thus, good drafting is a prerequisite to developing good arguing and client-counselling skills and forms an essential element in the matrix of abilities that a competent counsel needs to have.

Just as a good surgeon is not made by merely learning the medical literature, a good lawyer is not made by knowing the applicable rules. Several years of practical “hands-on” training and experience mould and shape one’s expertise. In the United Kingdom and in many other countries, completing a law degree does not automatically entitle you to practice at the Bar either as a Barrister or Solicitor. You still have to go through practical training for the kind of work that you will engage in –and only upon successful completion of the practical training you will get your license to practice. For reasons best found in history, unfortunately there is no training mandated in India after completion of the LLB  degree for lawyers. The generally accepted practice however, is that an LLB graduate will spend several years as a “junior” under a senior advocate to learn the essentials of the craft.   It is not an overstatement to say that junior advocates in India generally would need a minimum of three to four years of practical “hands-on” training before they can confidently set up their own practices and start handling cases independently. Our effort in this course is to minimize the time spent on that training period and make it an easy process by giving students a well-rounded background in drafting and conveyancing.

A caveat is in order. Given that drafting and conveyancing are skills honed over several years, what can we expect to achieve in one trimester? Our goal is practical: good knowledge of basic drafting and conveyancing rules, and the ability to draft basic pleadings and documents of title. Needless to state, even if you are not planning on becoming a courtroom or conveyancing lawyer, these skills are deemed to form a part of the matrix of essential skills that all law students need to have – irrespective of the type of work that they may ultimately choose to engage in as professionals. These skills are a sine qua non for almost every type of legal “industry” that you may ultimately land up in.

During previous trimesters students would have studied the Codes relating to civil and criminal procedure, as well as property law. Now this knowledge has to be put to use. In addition, they will be taught basic aspects relating to limitation, court fees, registration of documents and payment of stamp duty. Formats of plaints, written statements, appeal memoranda and revision petitions as well as miscellaneous applications in different kinds of civil cases will be given.  On the criminal side, students will be expected to prepare bail applications, complaints, appeals, revision petitions and miscellaneous petitions.  In conveyancing, students will be exposed to basic types of deeds of transfer such as gift deeds, sale deeds, agreements, partition deeds and partnership deeds.

It is worth noting that the trend of drafting of pleadings and conveyancing has radically changed in England and in India over the past decades.  If you needed to give an apple to your friend, the joke used to go, you had to say “I hereby give and convey to you my right, title, interest and advantages of and in, this apple, together with all its juice, skin, pulp and seeds, with full power to bite, cut, or do otherwise either in whole or in part, with intention to eat or consume, hereinafter, covenants in any other deeds or instruments notwithstanding”.  Now thankfully, simple and unambiguous language has replaced the ritualistic repetition of sentences which tended to confuse rather than clarify the intent of the executor. We must keep pace with the times and realize that drafting and conveyancing skills are not ends in themselves, but rather abilities that must ultimately benefit all the stakeholders in the justice system, especially the layman litigant or client.