How to prepare for the drafting assessment

This blog post is primarily intended for students on the BVS (Bar Vocational Studies), BTC (Bar Training Course), the ICCA Bar Course, and Bar Practice Course (BPC). However it may also assist LPC students who are assessed on statements of case.

This blog post has been updated on 21 January 2024 to reflect changes to the assessment methods and process at CLS's BVS course.

 

The drafting exam usually involves students being informed of the core areas of law in advance, but not the nature of the draft to be completed. This means you need to conduct a process of research, some revision of what your learned in drafting during the module, and a review of your previous work before the exam. You need to build an exam drafting resource , which I will call your “drafting file”. You also need to think about what you will do in the exam timeframe available to you.

 

This blog post is designed to take you through each stage of this process.

 

Phase 1: research and revision

 

UPDATE FOR 2024: CLS will allow students to put together digital resources for the exam. Ideally you should ensure these are saved to your computer, so that you do not need to tax your battery life. You will be able to access the internet resources such as Lexis+ and Westlaw in the exam. However, I would advise against spending time in the exam doing online research. You should do this in advance, and save the results to your computer. You may also want to think about whether you want a combination of paper and digital resources. For your paper resource, you can take printouts or photocopies of anything, provided you can find your way around your paper resource in the exam.

 

Do your research on the areas of law you were notified may apply. Ensure you understand the area/s of law before you go any further. Don’t neglect the Remedies manual as a resource for what can be claimed or which liability can be resisted. [Update: CLS students can access the full PDF of the Remedies and Drafting manual from Moodle, at BVS Central, please do not access this from Bibliu.]

 

Yes, you can do extensive legal research online. Do so, but don’t go mad printing out huge swathes of online materials. Make sure you understand the ingredients of the cause of action and the likely remedies. Bullet point notes and strategic materials are what you need, whether paper or digital.

 

Top up your understanding with research from practitioner sources. Make notes and collect printouts as needed. Keep it realistic, based on what you realistically think you can refer to during the exam period.

 

There are some fundamental questions you need to have a basic understanding about:

 

What are the main purposes of: a Particulars of Claim, a Defence, a Defence and Counterclaim? What are you trying to achieve? What do the CPR and/or Practice Directions say about them?

 

What are the acceptable responses in a Defence? When you deny an allegation, what must you set out?

 

What is the format for a counterclaim? What are the formal requirements?

 

What professional conduct issues arise from drafting?

 

Go back to the Drafting manual. The most important chapters for you are:

 

Chapter 7 – PoC

 

Chapter 8 – Defences

 

Chapter 9 – Advanced PoC

 

Chapter 10 – Advanced Defences

 

Chapter 13 – Defence and Counterclaim  

 

The “Stages” approach to Drafting as introduced in Chapter 7 is fundamental, not just to the content of your draft, but to its structure. You need to know what the paragraphs of your statement of case need to deal with, and in which order. This can help you remember what you need to include. It will also help you recognise in what order to raise them – establish the obligation, show how the obligation has been breached, explain what happened as a result, claim relevant remedies, etc…

 

Remembering the order of issues will help you with the structure of your draft. Remember which issues need to go in your draft will help you with your case analysis.

 

Phase 2: check lists and crib sheets

I find that I can’t remember lists of things very well. If I make a shopping list and forget it at home when I go to the shops, remembering what was in my list is almost impossible. Similarly, creating a list in my head from scratch is very difficult. When you have the stress of an assessment, when you are trying to read a set of papers, analyse those papers, plan your draft and then actually it out in full within your time limit, having to remember lists of useful information is probably too much to manage with.

If you need to make up checklists, do so. Checklists mean you don’t need to rely on your memory.  [Update: these checklists can be paper or digital. But do prepare them in advance.]

For example:

 

What are the necessary facts to plead a contract?

 

Which facts help show a duty of care? What are they in a road traffic accident? What are they in a professional negligence case?

 

What are the necessary elements for a claim of misrepresentation? What facts are necessary to make out those elements? Remember that for a single element you may need more than one fact.

 

If you are relying on a conviction, which facts are required to do so?

 

If you are making a claim relating to a debt under the Late Payments legislation, what are the facts and requirements needed to support such a claim?

 

There are many other examples, but these are useful to begin with.

There are certain forms of words which are commonly used in drafting. They can be found in practitioner precedent sources, or in the drafting manual. But you will want to be able to find them quickly. You have two options – have them in your manual and your drafting file (if printed from practitioner precedents) – or to put together crib sheets in your drafting file which are easy for you to find. The choice is yours. [Update: you can make these crib sheets digital and save to your computer.]

Think about whether you want to have a “crib sheet” of useful wordings or a "Bank of useful phrases"…. Such as:

 

- The typical way in which a contract (agreement) is pleaded

- The lead in to particulars of negligence

- The lead in to particulars of breach of contract

- The lead in to particulars of falsity (misrepresentation)

- How to plead vicarious liability

- How to combine concurrent liability

- The set off paragraph

- Formal elements of a Late Payments claim

- Interest – fixed claim, claim to be assessed, County Court, High Court, Late payments claim

 

Different formulas for denials:

- Denial of causation

- Denial of foreseeability of loss

- How to allege a failure to mitigate 

- Denial of a single fact, admitting the rest

- Admission of a single fact, denial of the rest

  

This list is not exhaustive, think about what else you have met on the course which you think it might be helpful to have in front of you in case you need to be guided by or replicate a particular form of words.

 

Phase 3: review you own work and put together your drafting exam file

  

Look back at your work, to review what you have learned about drafting. This is best done by printing out your work and reviewing it to the feedback you have received and comparing with the suggested answer. Carry out some consolidation and reflection on your work and the feedback you have received. [Update: you could download all of your work digitally and see what comments your tutor ha provided you, both in class and for the formative.] 

 

Read the commentaries of the suggested answers so you understand the reasoning behind the approach and analysis. If you haven’t already marked up your work, do so now – with advice to yourself on case analysis, wording, things you missed, tactics and practicality.

 

If you have often cut corners on case analysis, go back to the Case Preparation and Opinion Writing Manual. Please do not start writing your draft until you have completed your case analysis. The vast majority of people who do not pass drafting are people who carry out little or no case analysis.

 

Your previous attempts at work, the suggested answers, your printouts and notes on the core law and your checklists should form part of your drafting file – your digital or paper toolkit. Go back to Moodle and check the class slides from class. Is there anything useful here you'd like to have with you in the exam - make a note or print it out or download it.

 

Get all your drafting work together – notes from the VLE (Moodle), suggested answers, preparation notes, any slides which you have found useful, all of your notes on drafting.

Put them in a folder. [Update: this can be a digital compilation.]

 

You may want to use Tabs or insert dividers – splitting up the file into Particulars of Claim, Defences, Defence and Counterclaim, Part 20 Claims.

 

You may also want to consider: Injunction Orders, Witness statements (in other words – start with statements of case). Check what you might be assessed upon - which might be different depending on your provider.

 

Phase 4: what happens in the exam

 

In the exam, you will need to think carefully about how to use your time. I would suggest that you ensure you go through 4 stages of work:

 

1. Reading

 

2. Analysis

 

3. Planning: stages/paragraph planning and then detailed factual paragraph planning

 

4. Drafting

 

Let us look at them in detail:

 

Reading

 

This involves asking yourself – who is my client? Be mindful of the difference between claiming and defending.

 

What does my client want to achieve?

 

What document am I required to draft?

 

Careful reading of the papers – thinking about the chronology and time line.

 

What are the client’s objectives?

 

What is the cause of action?

 

What are my preliminary thoughts on losses?

 

Case analysis

 

What are the elements of the cause of action?

 

What is my view on the relevant causes of action?

 

How can I use the principles of law to achieve it?

 

What facts can I use which relate to those principles?

 

What is my view on remedy?

 

How do the facts interact with those elements? Are they all present on these facts?

 

What has the client lost? Prepare a working list of heads of loss, with some bullet points on amount with cross reference to your papers for later reference.

 

How can principles of remedies been applied to help the client recover what they have lost?

 

What can be claimed?

 

How can the recovery of loss be maximised?

 

What are the required aspects of the kind of draft I am required to write?

 

Hint #1: for particulars of claim, you are seeking to establish elements of the cause/s of action in order to claim a remedy.

 

Hint #2: for a defence, you are seeking to attack the elements of the cause of action and/or raise defences which exist as a matter of law to ensure the claimant cannot get a remedy.

 

Planning

 

The first step is working out the full list of matters which need to be pleaded. This involves planning how many paragraphs you need – depending on the stages, the elements of the cause of action, the structure of the particulars of claim and the necessary responses and positive case of the defendant…

 

Literally all this means is working out what broad topic – defining parties/addresses/status, factual background, storytelling or a “stage” of the claim/defence you are dealing with and putting them in the right order. [Update: you can jot down your thoughts on the relevant stages in your blank document in the exam.]

 

Then you need to draft a plan of your draft with an idea of what goes in each paragraph. So the plan is more than a list of topics – it is a thought out (brief) skeleton of the draft. You need to know which facts you need to establish, which facts are relevant and how to set them out. [Update: you set out your paragraph by paragraph plan in your blank document on your computer in the exam.]

 

 

Drafting

 

This is actually putting together the whole draft. This will take some time because the precision and concision of expression is very important. 

 

You are not just copying stuff from your instructions or draft witness statements. 

 

You are also not just copying stuff from your suggested answers, because each case is dependent on its own facts and your case analysis is key. 

 

Your draft has to avoid pejorative and emotional language. 

 

You have to draft in accordance with the principles of ethics. 

 

You have to endeavour to be precise and concise in your wording.

 

You have to comply with the relevant procedural rules. 

 

You need to give yourself time to think about these matters carefully.

 

Don’t forget to check your draft at the end! Proofreading is very important - you cannot solely rely on the spell checker. Try to leave yourself 5-10 minutes for proofreading.

 

Don’t forget to pay attention to the heading and the formalities at the end.

 

These are important!

 

Good luck with the drafting assessment!