LEGAL

DRAFTING II
LIA 4011
COORDINATOR:

DR. HAEZREENA BEGUM BINTI ABDUL HAMID

LECTURER:

PN. NUR ASHIKIN BINTI ABDUL RAHIM

OVERVIEW
ASSESSMENTS

• Continuous Assessment: 50% – Group Assignment, 50% - Individual Take Home Test

GROUP ASSIGNMENT 50% - submit by week 7

INDIVIDUAL TAKE HOME TEST 50% - submit by week 13

• Group Assignment: Drafting in BAHASA MALAYSIA of pleadings (Statement of Claim,

Defence & Counterclaim, Reply & Defence to Counterclaim)
• Individual Take Home Test: Questions on all topics aside from pleadings (Notice of
Application, Affidavits, Bundle of Pleadings, Bundle of Documents, Witness Statements,
Judgment & Orders, Appeals)
MARKING GUIDELINES
Excellent Good Average Poor
Contents (40%) 40-35 34-30 29-20 Below 20
Language (40%) 40-35 34-30 29-20 Below 20
Structure (20%) 20-18 17-15 14-10 Below 10
Very good Good application of Acceptable Poor application of
application of facts facts and law, application of facts facts and law,
and law, concise language, structure. and law, language, language, structure.
language, conform A few mistakes. structure. Several Many mistakes.
to all drafting mistakes.
techniques, neat
structure. Very
minor mistakes if
any.
 • The preparation of any written legal document - pleadings, a
letter, a brief, a memo, or a contract.

• "Legal drafting" can mean the task of preparing a

LEGAL transaction, which includes; the substance of the underlying
law, strategies for representing a client in a transaction, the
DRAFTING skill of negotiation, and the ability to close a transaction.

• "Legal drafting" can mean the writing of binding legal text.

It is the skill of putting words on paper to create rights and
duties.
 • A pleading can be defined as a formal statement that
request the court to either grant a relief or pass a
verdict in a dispute. The plaintiff initiates a lawsuit
by filing a complaint while the respondent will file
an answer to the claims of the plaintiff.
PLEADINGS • Pleadings are specific documents filed by the
parties in a lawsuit which states the position of the
parties in the litigation.
• Pleadings can be regarded as the backbone of any
judicial system.
 • They are documents which contain the claims and
counterclaims of the parties giving the opposing
parties and idea of what case they are to answer.
• Pleadings contain complaints, answer,
PLEADINGS counterclaims and reply.
• A complaint in a civil case is very important in
declaring the plaintiff’s facts and stand in the case.
• The aim of the pleading is to ensure that the issues
in the dispute are properly detailed to eliminate
further delay or expenses.
PURPOSE OF PLEADINGS

• (i) Provision of notice of a lawsuit

• (ii) Identify the facts that should be settled
• (iii) State the facts that are named in the
lawsuit
• (iv) Plead/tell the court what do you want or
don’t want
 IMPORTANT RULE

BINDING
BOUND BY THE PLEADINGS

CANNOT INTRODUCE NEW

CLAIMS OR FACTS DURING
TRIAL OR HEARING
Opinion Writing -
General
Opinion Writing – Introduction

An opinion is NOT an The target is to concisely and provide answers to the

academic piece of writing apply the law to the facts queries posed by the client
 The language of the opinion must take into account your audience
Language –
Know Your Who is your client? Who has asked for the opinion?

Reader The CEO? Officers in the legal department? Officers in the Human
Resources Department? A businessman? An accountant? A
footballer who wants to sue a newspaper? An Orang Asli NGO?

Be careful of over-using legal terminology if you are preparing the

opinion for a non-legally qualified person. It may not be
appreciated.
Paragraphing is important

In general, paragraphs
A collection of sentences consisting of only a single
devoted to a single topic sentence ought to be
avoided

On the other hand, try not Related topics should be

to have more than 3 – 4 kept together in the same
sentences in one paragraph section of the document
• Example: The existing Immigration
Regulations occasionally – only a
very limited number of cases have
come to my attention – produce
undue hardship as a result of the
very strict interpretation. Don’t keep the
vs. reader waiting!
• The strict interpretation of existing
Immigration Regulations
occasionally produces hardship,
though I know of only a few cases.
Use The Active Voice

The Plaintiff sent a letter to the Defendant

vs.

A letter was sent by the Plaintiff to the Defendant

Know Your Case

Never underestimate the importance of obtaining

and understanding the complete factual narrative

Do NOT dodge, ignore or try to bury unfavourable

facts. You cannot do it in court, do not do it in an
opinion
Never overstate the case
Do not stretch
Do not stretch cases / overstate cited in
order to bend positive light in favour of
the client. It will come back to bite you.
Avoid
Avoid unqualified statements like
“definitely”, “never”, “impossible”
• Try not to use: “Such an action has never been
brought in Malaysia…”
• Consider: “As far as we have been able to
discover…”
Reading Statutes

Never forget to identify the Read the entire statute. NOT Read the definition section
relevant statute before starting just the particular provision in TWICE
on the opinion question
The Writing Process

A good opinion or Never start writing until Don’t just think from the Prepare an outline.
submission is the you have turned the case perspective of your case
product of lengthy over in your mind for but also about the case
hours you can expect from the
thought
opposing side
The Writing Process

The hardest part is Save the introduction Write a summary of Lay the draft aside for
getting started. Stick and the conclusion for your argument – this some time. Distance
to the schedule you later since they usually will help you sharpen often improves the
have prepared preview and review your focus. writer’s perspective
the argument
The Writing Process

The second last read through should be devoted solely to compression – delete
sentence, words and phrases that are repetitive / do not work. Every word that is
not a help is a hindrance because it distracts

A client reading a wordy / lengthy piece of work will skim it

The final read through should be exclusively devoted to seeing whether certain
points can be put more clearly or more crisply
Cite authorities sparingly

If there if no governing authority,

your resort to persuasive authority
may require more extensive
Remember: You You are advising No extra points for citation to show that the rule you
are urging has been accepted in
are not writing a your client including every more than one other jurisdiction
relevant case (for e.g. Every other jurisdiction
thesis or an MLJ that has confronted this questions
has reached the same conclusion.

article See X v. Y AIR 1997 SC 1511, A v. B

[1964] AC 1129…)
Quote authorities sparingly

• “Quotations from cases are effective only if used sparingly. Quoting

at length from opinion after opinion is a lazy way of writing a brief,
and the finished product is likely to be unconvincing. Long before
the brief approaches its end, the reader has begun to skip over the
quotations.” – Judge Daniel M. Friedman
Quote authorities sparingly

Lawyers think After you have established your The cut and
that their major premise, it will be your paste approach
product is reasoning that interests the court / is artificial and
improved if your client, and this is always more makes for bad
each thought is clearly stated in your own words reading
expressed in
the words of a
governing case
– the opposite
is true
 Many block quotes have probably never been read
by anyone

Quote
Try to deftly weave the quotation into the fabric of
authorities your prose
sparingly
For e.g. As such, fraud must mean “actual fraud, i.e.
dishonesty of some sort for which the registered proprietor is
a party or privy.” (per Raja Azlan Shah CJ (Malaya) (as HRH
then was) in PJTV Denson (M) Sdn Bhd & Ors v Roxy (M) Sdn
Bhd [1980] 2 MLJ 136)
Remember…

As mentioned previously, opinion It is not a law school assignment This is the real world. Your client
writing is not an academic exercise demands an answer to his or her
question – Answer it
Remember…
• Also keep in mind that it would not be wrong to advise a client that although they may have a
cause of action, it may not be the appropriate time to launch a court action – Consideration of
whether a civil suit is appropriate / timely
• For example, if your client is a large corporation who has a disagreement with some members of
the public, it may not be wise to move too aggressively as they may be seen as bullying.
• Other examples may include holding back on a civil suit pending a decision that you know will be
made by the Government / regulatory body soon – surrounding circumstances / political
considerations
• A good lawyer is sensitive to and keeps up-to-date with social and political circumstances. This
goes to case strategy.
Preparatory Steps /
The Process
Digest the client’s instructions well
• Absorb everything the client’s relays to you 100%

• Read every word of every document that your client gives to you

• Note: Understand the surrounding circumstances. If your client is a private college who instructs
you to prepare an opinion relating to the private higher education industry in Malaysia, then it
would be prudent to familiarize yourself by reading up on what is happening within the said
industry
Organize the facts

OFTEN TIMES, THE BACKGROUND FACTS TO THE THE CLIENT MAY NOT BE OBSERVING TIMELINES IN IT WOULD ASSIST GREATLY IN THE PREPARATION OF
PROBLEM IS RELAYED TO YOU BY THE CLIENT IN A RELATION TO WHEN EVENTS TOOK PLACE THE OPINION IF YOU ORGANIZED EVERYTHING
DISORGANIZED MANNER (BOTH FACTS AND DOCUMENTS)
CHRONOLOGICALLY
Fill the gaps

For example, the client may have handed

Once you organize the facts and documents you a letter dated 4.5.2021, and in that
chronologically, more often than not you letter there may be a reference to a
will realise that there are gaps in the case previous letter dated 15.4.2020 which you
now realise is not part of the documents

Another example is the client may be

relaying facts which took place between
Ask for more information – fill the gaps –
January to May 2021 and you realise that
question the client about the gaps
nothing seemed to have happened in
March 2021
Fill the gaps

Do not be afraid to
Remember: The The client may well
ask the client for
client may not emotional and
more information –
always know what because of this, he
even if this part of
are the most or she may not have
the process has to
important been thorough in
be repeated more
documents / facts briefing you
than 10 x
Fill the
• However, if there are still gaps, you may
have to state as follows in the opinion:-

• “Subject to more detailed information

gaps being obtained in respect of the

application for the license, we are of the
view that…”
Analyse the facts
• Once the facts and documents are arranged chronologically, analyse them
• Try to match the material / important facts with evidence for e.g. documents,
something the client personally witnessed etc.
• Sometimes, you may not have adequate evidence. For example, a client may asking
you for an opinion in respect of his chances of success in suing a developer for causing
the collapse of part of his house
• You may need to state in the opinion as follows: “We are of the opinion that before
initiating legal action, an expert report should be obtained in order to conclusively
identify the cause of the collapse.”
 • Once you have analysed the documents and
the facts provided, you would already have
a good idea as to what legal issues are
involved and the potential causes of action

Legal
– contract, negligence, defamation etc.

• Start your legal research. Identify similar

Research
cases

• Excellent legal research would also assist in

identifying weaknesses in the evidence
which may need to be looked into prior to
the filing of any civil suit
FORMAT OF A LEGAL
OPINION
 Firm’s reference • State the purpose of your
FORMAT •
• Their reference
letter
• State your opinion and
• Date views
• Addressee • Support with facts,
• Salutation circumstances and cases
• Subject • State what do your client
have in mind – do not
exceed your mandate
• Give an alternative
• Conclusion
• Close
 Getting – Up

Establish what are the topic that you would like to

conduct your research on
CONDUCTIN
G LEGAL Ascertain the facts of the client’s case

RESEARCH Look out for the appropriate acts and laws governing
the issue, statutes

Look for cases from reported cases, books, articles

Make a note and a list of all the appropriate citations

and make the necessary photocopies/downloads
 • For Running Down Cases (Accident)
• Section 96 (2) Road Transport Act Notice
before commencing any litigation proceedings
i.e summons
• Opinion on Quantum and Liability

Legal Opinion • For Conveyancing Cases

• Based on Contract, applicable laws

• For General Litigation Cases

• Based on legal point of view, applicable laws
Instructions
EXAMPLE

• Your client received a s.218 Notice – Winding Up Notice from the Plaintiff’s Solicitor.
• Your client is a public listed company and any threat of winding up could jeopardize
their business as the would need to declare to the KLSE.
• Your client asked you to reply to the Plaintiff’s Solicitors and dispute the judgment.
• Your client asked for your legal opinion and what can they do to avoid winding – up
proceedings.
 Firms Letter Head
Solicitor’s name and address Date:
State by way of email or fax or post
EXAMPLE - LETTER OF OPINION (TO
CLIENT)
Firms Letter Head

Your client’s name and address Date:

State by way of email or fax or post
Dear Sir/Mdm ,

Re: Section 218 Notice - Basri bin Mohd Hassan

1. We refer to the above matter and to your letter dated 1 August 2011.
2. We write to inform you that we have issued the necessary reply to the Plaintiff's Solicitor but apparently, we
seem to be receiving threats of winding - up proceedings and frivolous demands from the Plaintiff's Solicitor.
3. Be it as it may, we note that should the Winding - Up petition be filed and issued against your company, it will
compel yourselves to make an announcement to Kuala Lumpur Stock Exchange which may lead to negative
consequences.
4. As such, we would advise yourselves to file an injunction restraining the Plaintiff from making any further
claims or commencing and execution proceedings.
EXAMPLE OF LETTER OF OPINION
• Our grounds shall be on the following reasons:-
(i) That the matter has long been settled and the Plaintiff is estopped from making further claims.
(ii) The doctrine of latches where there shall not be any further claim when a matter has been
settled regardless of there was a waiver on the part of the Plaintiff or otherwise.
(iii) Section 6(3) of the Limitation Act 1953 which estops the claimant from recovering a debt after 6
years from the date of the cause of action i.e 08th of June 1999 in this case, thus the expiry date
shall be on the 07th of June 2005.
• We enclosed herewith 2 leading cases for your kind attention.
• We note that the Section 218 Notice is being served on yourselves on 29th July 2011 thus the expiry of the 21
days shall be on the 19th of August 2011.
• Kindly let us have your further instructions and we would recommend that the Notice of Application for the
Injunction Proceedings be filed soonest possible.
• Thank you.

• Signed on and behalf of the firm

Instructions
Instructions
• The CEO of a company named Train Builders Sdn Bhd has approached you. His name is
Eddie Vedder.

• The company builds train lines in small towns throughout Semenanjung Malaysia.

• The company faces issues in respect of the construction of a train line in Kluang, Johor.

• In this regard, they are building a train line that is aimed to be backbone of Kluang’s
public transport system.
Instructions
• Residents in a tiny housing area in Kluang named Taman
Titiwangsa are unhappy with the alignment of the train line
and claim, among other things, that the train structure is too
close to the houses in the said housing area.

• The residents also claim that the noise and vibration caused
by the project would have a negative health impact on them
and as such, Taman Titiwangsa would no longer be a liveable
place.
Instructions
• Many meetings were held between the residents and
TBSB and one of the things discussed was whether TBSB
could buy up the houses in Taman Titiwangsa so that the
residents can buy homes elsewhere

• TBSB instructs that no agreement was reached on this

and it was only a preliminary discussion
Instructions
• TBSB requires an opinion on the possible legal recourse
that may be pursued by the TT Residents and specifically,
what they can do to impede or stop the Train Project

• TBSB is also concerned because the residents have sent a

letter alleging that TBSB have agreed to buy their houses
over
Instructions
• Finally, one of the residents Mr. John Tan sent 2 emails to the
District Officer of Kluang and the Kluang Member of
Parliament saying that: (1) TBSB are not aware of the project
impact; (2) that the cost of the project has excessively
increased; and (3) TBSB has no expertise to carry out the
project

• TBSB wants to know whether they can sue Mr. John Tan for
defamation
Instructions
• The full opinion will be uploaded together with the slides

• Observe the flow and how the opinion is structured. Also

note how much more information was obtained from the
client apart from what was first stated above

• Note the fact that the opinion takes into account public
sensitivities / surrounding circumstances
Sources
Sources

As mentioned earlier, reading is crucial towards The next 2 slides contain a list of books that will
writing well and producing quality written opinions help greatly towards this…
Sources

The Justice Game by Robertson, Geoffrey (1999) v. Goliath: The Trials of David Boise by Karen Donovan (2007)

Lawyer: A Life of Counsel and Controversy by Arthur L. Liman & Peter Israel (1998)

The Art of Cross-Examination by Francis L. Wellman (1997)

Clarence Darrow: Attorney for the Damned by John A. Farrell (2012)

Making Your Case: The Art of Persuading Judges by Antonin Scalia & Brian A. Garner (2008) **

Reading Law: The Interpretation of Legal Texts by Antonin Scalia & Brian A. Garner (2012)
Sources

Memoirs of a Radical Lawyer by Michael

Mansfield (2010)

The Rule of Law by Tom Bingham (2011)

The Art of the Advocate by Richard Du

Cann (1993)
THANK YOU