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Shvoong Home>Law & Politics>Drafting applications Summary

Drafting applications

Article Summary   by:ajraval     Original Author: ajraval
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“LIFE OF LAW HAS NOT BEEN LOGIC (;) IT HAS BEEN EXPERIENCE.” =USA. SC. Judge, Mr. Justice Oliver Wendell Holmes. While preparing legal drafts for appeal, petition, suit, writ, it is the job of the lawyer to narrate brief facts of the case in a narrative way, step by step, in chronological sequence of events, as they happened, in a given case. The documents relied upon, in support of the case, should be distinctly earmarked. He has to prepare a case to build cause of action in the matter. It entitles him for relief at the hands of the court. In the concluding paragraph, he prays for relief, on the basis of brief facts of the case, and cause of action arisen in a given case. A good drafted appeal, petition, suit or the writ stands on a different footing, than a clumsy brief, with unwanted narration and discussion, omitting material facts, in a given case. Art of drafting is acquired by constant practice and study. It is our job to bring in focus, the crux of the controversy, and cover all material aspects of the case which has a bearing on its disposal. There is no place for rhetoric, there is no scope for ambiguity or obscurity in a perfect draft. Accuracy, brevity, certainty and rationality are the hallmarks of a good draft. A well-drafted petition, presented by a lawyer, instantly attracts the attention of the Court and evolves necessary interest which helps the Judge to understand the subject-matter and issues involved in the case. There is no place for reckless statements and irrelevant material. Allegation or mis-statement, causes harm to the interest of the client. Material omission of facts, in a petition works to the detriment of the client’s case. It is advisable, to never undertake to draft a petition or an application without adequate knowledge regarding the relevant subject in this regard. There is no place for statement, which is irrelevant, unnecessary, annoying, and obstructive to the progress of the case. It is agreed that the Courts take into consideration the substance of the petition and not the formal language thereof. But it is also a fact that petitions should not be ambiguous and clumsy. A court can strike out unnecessary information, and can direct the party to amend his petition. The court can direct the defendant to file additional written statement in light of court’s striking out the necessary portion ambiguously worded in the petition. However the court can not dismiss a case, if the petition is not in proper form or if the relief claimed is improperly worded or if there is an incorrect statement of law. Facts of thecase have to be stated specifically and in a chronological sequence of events as they happened in a given case. The petition should contain statement of facts and not the provisions of law. In the petition, material and relevant facts should find place.
Evidence need not be cited. .2. 2. Drafting a good petition is an art, acquired by vast court-room experience, and practice. A petition can not contain inconsistent statement of facts. Every material and relevant fact has to be stated in a separate paragraph chronologically arranged. The dates and amounts have to be written in figures and in words. Facts have to be briefly stated. But this does not mean that incomplete facts are permitted. All facts which are alleged must be alleged concisely but fully. All those facts which go to prove a case must be alleged and proved. A good drafted petition does not contain unnecessary and irrelevant facts. There should be no evidence cited to prove the facts. There should be no arguments made in the petition in support of the case. There should be no facts of law applicable discussed in the petition. Certainty, is the pre-requisite of a good draft. So the names of places and persons, should be precisely stated. The description of place and persons once adopted should be uniformly adhered to, all through-out the course of the petition. Use of pronouns has to be avoided. If it becomes necessary to cite the provisions of law, in a petition, exact provisions thereof have to be reproduced, by way of citation, quoting the case no. title and publishing details in the law-magazine. For example, mode of citation should be on lines of:- (illustration). 2005(190)E.L.T.289.SC with names of parties. Correct and effective legal language in use, in day to day legal matters, has to be used in the petition. We have to say that, “a suit is instituted.” “ an appeal is preferred.” “ an application is made.” “ a complaint is lodged.” “a written-statement is filed.”, “a petition is presented.” etc. The contents and the format of the plaint should be in accordance with the provisions of law and rules regarding drafting of plaints. The plaint has to be addressed and filed in the Court having jurisdiction to deal with the case. The court jurisdiction is territorial and/or pecuniary jurisdiction. Description of the parties in the case has to be detailed and complete.
Published: August 08, 2007   
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