LEGAL WRITNG AND DRAFTING

One of the most important task that an attorney, law clerk, paralegal, legal secretary or any one involved with legal matters, have to perform will be legal writing and drafting. Usually the legal professional is called upon to draft different types of documents such as briefs, memoranda, and motions. If a person is new to legal system, it would help him to familiarize himself with the different types of documents which are involved in the practice of law. It would be useful to know their uses depending on the stages of litigation or the purpose for which they are involved in the practice of law. It would also be useful to know their uses depending on the stages of litigation or the purpose for which they are required. Some of the most frequently drafted documents are; BRIEFS :- It is very important to understand what a brief means and how a well-drafted brief can help in winning a case or even a legal argument. A brief has two different meanings : (i) It is a written document prepared by counsel to file in a legal proceeding, setting forth the pertinent facts, the applicable law, and an argument supporting the attorneys position and challenging the opponents position It is a summary or abstracts of a court decision, usually prepared by a law student to assist in understanding the decision significance. Briefs are written arguments prepared by attorneys for submission to the courts and the concerned parties.

(ii)

It is, therefore, important to remember that briefs are the written arguments and authorities cited by the lawyers for the parties. It is also a type of Legal Memorandum and is usually prepared for submission to external parties unlike an Internal Memorandum. See below fo legal memorandum.

COMPLAINTS :- A complaint is a document or petition which is filed with the court by the
aggrieved party(the plaintiff or the party who sues). The filing of the complaint with the court marks the beginning of a case. The complainant states the facts of the case, explains what happened, and what the plaintiff wants done about it, that is, the relief sought such as a monetary award, an injunction, damages, or any other appropriate remedy. The complainant may contain more than one allegations or legal claim of wrong doing. These legal claims are alleged in separate Counts and could be based on the same set of facts. The complaint also must mention the legal basis for the complaint.

Papers filed with a court clerk by the plaintiff to initiate a lawsuit by setting out facts and legal claims (usually called causes of action). In some states and in some types of actions, such as divorce, complaints are called petitions and person filing is called petitioner. To complete the initial stage of lawsuit, the plaintiffs complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. In practice, few lawyers prepare complaints from scratch. Instead they use and sometimes modify pre-drafted complaints widely available in form books.

CROSS-COMPLAINT:- A cross-complaint is a document which is separate from the

complaint, kept in a separate cover and designated or titled as a cross-complaint. Depending on the jurisdiction, the cross-complaint may be a part of the answer given by the defendant, and may, therefore, bear the heading Answer and Cross-Complaint. The cross-complaint usually states a cause of action against the cross-defendant and is usually filed and served with the Answer to the Complaint. Sometimes a cross-complaint is called a cross-claim. It must concern the same events that gave rise to the original lawsuit. For example, a defendant accused of causing an injury when she failed to stop at a red light might cross-complain against the mechanic who recently repaired her car, claiming that his negligence resulted in the brakes failing and, hence that the accident was his fault. In some states where the defendant wishes to make a legal claim against the original plaintiff and no third is claimed to be involved, a counterclaim, and not a cross-complaint, should be used.

ANSWER :- After a complaint is filed, the person who is sued, that is , the defendant has to
answer in writing to the complaint. The answer usually contains the defendants reasons or excuses for the action taken which has been mentioned in the complaint and may contain counterclaims which the defendant has against the plaintiffs. Besides giving, that affirmative defenses, the defendant may also deny the complaint totally stating that he does not have enough information about the allegations or he may agree in part or disagree in part with some portions of the complaint. A defendants written response to a plaintiffs initial court filing (called a complaint or a petition). An answer normally denies some or all facts asserted by the complaint, and sometimes seeks to turn the tables on the plaintiff by making allegations or charges against the plaintiff called counterclaims.

MOTIONS :- A motion is a request made to a court asking that it do something in law suit.
Depending on the various stages of litigation, an attorney is required to file different types of

motions. These motions are filed either in state courts or the federal courts and must comply with the individual state courts rules or the Federal Rules of Civil Procedure. The most commonly filed motion in civil matter are:-

Pre-Trail Motions :- A pre- trial motion has to be in writing and must state the grounds for
the motion in particularly . Some of the more commonly filed motions are:1. Motion for a More Definite Statement which is usually used where a pleading is so vague or ambiguous that a party could not reasonably respond to it in a required responsive pleading. 2. Motion to Strike is a motion made before respondent to a pleading requesting the court to issue an order to strike from the pleadings any redundant, immaterial, impertinent, or scandalous matter. 3. Motion to Dismiss(also known as demurrer) is a pre-trial motion which attacks the whole complaint or some cause of action or count contained in complaint. The basis for a Motion to Dismiss/Demurrer is usually that the complaint. The basis for a Motion to Dismiss/ Demurrer is usually that the complainant does not state a cause of action. 4. Motion on judgments on the Pleadings :- This motion is usually made after the pleadings are closed but within a time that will not delay the trial of the action. 5. Motion for summary Judgment, If there are no genuine issues as to any material fact, this motion is filed and the moving party is entitled to a judgment as a matter of law. This motion enables a quick and final resolution of a dispute when there is no real necessity for a trial. This motion is, as a rule, made after the completion of all discoveries. 6. Motion in Limine :- is a request to the judge to run some aspect of the trial in a certain way, for example, to prevent the defendant from even trying a certain point as it would hopelessly prejudice the jury against the plaintiff. These motions are usually considered by the judge in a meeting outside the hearing of the jury, usually in the judges office. 7. Motion to Show Cause or Orders to Show Cause:- These are usually prepared regarding contempt, modification, jointer of parties, and so forth. These motions are commonly filed in matters pertaining to family law. When these documents are prepared in connection with a family law matter, they have to be prepared with meticulousness and care, as they deal with the needs of the petitioner relating to child support, alimony and the ability of the respondent to pay the same, as well as the disposition or hypothecating of real or personal property of the community property in the community-property states.

Post-trial Motions :- Motion for New Trial; A party may also file post-trial motions such as
Motion for New Trial or a Motion for Judgment N.O.V(Not withstanding the verdict) or

Motion to Set Aside Judgment. These motions must state grounds for the motion and are usually accompanied by the Memorandum of Law prepared in support of these types of posttrial motions. A hearing is held on these motions or sometimes a decision is given based on the written documents submitted in the matter.

MOTION IN CRIMINAL MATTER :- As in a civil case, so also in a criminal matter, Pre-trial

motions are filed. The most common motions are: 1. Motion to Reduce Bail: In case an excessive bail is set, this motion is filed requesting the court to reduce the amount. 2. Motion to Quash or Set Aside Complaint or Indictment: If there is no probable cause to arrest the defendant or, in matters heard by a grand jury if the evidence was not properly presented to the grand jury, a Motion to Quash may be filed in some jurisdictions. A motion to Dismiss Indictment must state several possible grounds to dismiss the case such as court does not have the jurisdiction to try these types of cases, the indictment does not state facts which would constitute an offense, the defendant has been acquitted (convicted, in jeopardy of conviction) of the offence he has been charged with in another court, or the offense, the defendant has been acquitted (convicted, in jeopardy of conviction) of the offense he has been charged with in another court, or offense charged is the same offense for which the defendant was pardoned by the President of the United State or the indictment was not found within three years next after the alleged offense was committed. Before filing this motion, the attorney must carefully consider the fact that as this motion mentions the formal defects in the information or indictment, he may be educating the prosecutor unnecessarily. 3. Motion for Change of Venue : This motion can be filed on the courts own motion but if the attorney feels that the client will not get a Fair and impartial trial where the alleged crime was committed, he can request the court to change the venue of the trial. 4. Motion for Discovery under Court Rules of Criminal Procedure : The defendants attorney may file this motion so that he is aware and informed of the district attorneys case and the possible witnesses that will be presented at the trial. 5. Motion to Suppress Evidence : The defendants attorney usually files this motion to suppress any evidence which has been obtained through an illegal search and seizure. It applies to physical evidence, statement made by the defendant when not advised by the counsel or through wiretapping, prior convictions, and so forth. This motion is filed prior or at the preliminary hearing.

6. Motion to Sever: If there are two defendants charged with the same crime or who acted jointly in the commission of a crime and the attorney for one of the defendant believes it would be in the best interest of his client if there were separate trials, he would be in the best interest of his client if there were separate trials, he would file this motion. 7. Motion for Appointment of an Expert: If the attorney has an indigent client who cannot afford the fees of an expert witness who is necessary to his clients defe nse, he may file this motion to request the court to appoint an expert witness at the expense of the court.

PLEADINGS :- are the written statement containing a partys allegations about each point or
issue involved in the lawsuit. A plaint, simple statement of the facts or defenses