LAW IN PRACTICE (ETHICS AND SKILLS)

UNIT 6

STAGES OF DRAFTING

Drafting is a vital skill for legal practitioners, as it requires precision, clarity, and an understanding of legal principles. In the Nigerian legal system, drafting documents, whether for litigation or transactions, must follow certain stages to ensure clarity, legal soundness, and effectiveness. The essential stages of drafting includes the following:

  1. Receiving instructions and research
    1. Receiving instructions: The first stage of drafting is receiving instructions from the client. The lawyer must understand the client’s goals and objectives, whether drafting a contract, will, pleading, or other legal documents. The lawyer's role is to translate the client's wishes into a legally sound document. This is the foundational stage where the lawyer identifies the type of document needed and the specific issues to address. This process of receiving instructions includes the following:
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      1. Listening carefully to the client’s needs.
      2. Asking relevant questions for clarification.
      3. Identifying the legal implications of the client’s requirements.
    2. Researching the law: Once instructions are received, the lawyer must conduct thorough legal research to ensure the document complies with applicable laws and regulations. See the case of Oshafunmi v. Adepoju (2004) 12 NWLR (Pt. 887) 89 where failure to properly research led to the drafting of an invalid will. This involves doing the following:
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      1. Checking statutes, case law, and regulations that apply to the document.
      2. Understanding the legal context and potential consequences of the drafting.
  2. Planning and outlining: After gathering all relevant information, the lawyer must plan and outline the document. This involves organizing the content in a logical and coherent manner, ensuring that all necessary sections are included. Proper planning ensures that the draft addresses all critical aspects of the transaction or litigation. See section 2 of the legal practitioners act (Cap L11, LFN 2004) which requires lawyers to ensure their legal documents are well-prepared and structured. Key steps in planning and outlining includes the following:
    1. Drafting an outline that lists the main topics and subtopics.
    2. Ensuring the outline follows a clear flow, addressing the client's instructions and the law.
    3. For example, in the drafting of contracts, a typical outline would include the following:
      1. Parties to the contract.
      2. Recitals.
      3. Operative clauses (rights and obligations).
      4. Termination clauses.
      5. Signatures.
  3. First draft: This stage involves translating the outline into a full draft. The first draft is the initial version of the document, where the lawyer attempts to express the client’s instructions in legal language. The first draft is usually not the final version; it is a working document meant to be revised. See the case of Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386 where the court emphasized the importance of clarity in legal documents to avoid disputes arising from ambiguity. The considerations for the first draft includes the following:
    1. The language must be clear, unambiguous, and precise.
    2. Avoiding excessive legalese and unnecessary complexity.
    3. Ensuring that all necessary clauses are included.
  4. Revision and editing: The next stage is revising and editing the first draft. This is a critical step, as the initial draft often contains errors, omissions, or unclear language that needs to be corrected. Editing helps refine the draft, ensuring that it is readable, clear, and legally sound. Legal practitioners must also ensure compliance with any statutory requirements during this phase. See section 5 of the rules of professional conduct for legal practitioners (RPC) 2007 which emphasizes that lawyers must ensure accuracy and clarity in their documents to avoid misrepresentation. This stage of revision and editing includes the following:
    1. Correcting grammatical and typographical errors.
    2. Revising sentences for clarity and conciseness.
    3. Ensuring legal accuracy and consistency throughout the document.
    4. Removing redundant or irrelevant content.
  5. Review by client and final revisions: Once the document has been revised and edited, the lawyer must share it with the client for review. The client’s feedback is crucial because it helps ensure that the document accurately reflects their instructions and addresses their concerns. It is important to ensure that changes made based on the client’s review do not affect the legality or enforceability of the document. The lawyer should advise the client on any requested amendments that may raise legal concerns. See the case of Nigerian Telecommunications Plc v. Ifeanyi (2015) 12 NWLR (Pt. 1475) 322 where improper revision led to a misunderstanding between the client and the lawyer, affecting the outcome of the case. The steps for the review by client and final revisions includes the following:
    1. Sending the draft to the client for review and approval.
    2. Incorporating the client’s feedback or suggested changes.
    3. Ensuring that the final draft still complies with all legal standards and requirements.
  6. Final draft and execution: After revisions based on the client’s input, the document reaches its final form. Execution of the document may require witnessing, sealing, or filing with relevant authorities, depending on the type of document. In a contract, both parties must sign the document, and witnesses may be required to validate the signatures while in a deed, see section 78 of the property and conveyancing law (1959) which requires that the deed be executed under seal. The lawyer must ensure the following:
    1. The document is properly formatted.
    2. All necessary signatures, seals, or notaries are present.
    3. The final draft is legally binding and enforceable.
  7. Filing or delivery: After the document is executed, it may need to be filed with a court, land registry, or other regulatory bodies. In other cases, the document may simply be delivered to the parties involved. For instance, pleadings must be filed within the statutory timelines set by the civil procedure rules of various courts, such as the high court of Lagos state (civil procedure) rules, 2019. The steps involved in filing or delivery includes the following:
    1. Ensuring that the document is properly filed or delivered within any required deadlines.
    2. Retaining a copy for the client and the lawyer’s records.
  8. Follow-up and advice: After the document has been finalized and executed, the lawyer’s duty does not necessarily end. In some cases, follow-up actions are required. See the case of Onagoruwa v. Akinremi (2001) 13 NWLR (Pt. 729) 38 where the lawyer failed to provide proper post-drafting advice, which led to complications in the enforcement of the contract. This may include the following:
    1. Advising the client on the implementation or enforcement of the document.
    2. Addressing any post-execution legal requirements, such as registration or compliance with conditions in the agreement.

CONCLUSION

Drafting is a multi-stage process that demands attention to detail and a thorough understanding of legal principles. Each stage is important to ensure that the final document is clear, enforceable, and in line with the client's objectives and legal requirements.