SQE2 LEGAL DRAFTING ASSESSMENT - EXAM NOTES
Basic principles of good drafting; clear, precise, concise and acceptable language
Assessment
• Form
o Instructions and any supporting documents will be provided electronically
o Will have 45 minutes to complete answer
• Assessment Criteria
o Expected to know and address detail that a Day One Solicitor wouldn’t have to look up .: may be provided
with legal materials where SRA considers that a Day One Solicitor would need to refer to those materials
o Must structure document drafted appropriately and logically
▪ If document has recognised structure, must follow that e.g.:
• Property certificates of title
• Property contracts and transfers
• Leases
• Deeds of assignment of a lease
• Licenses to assign a lease and licences to underlet
• Wills and codicils
• Shareholders agreements
• Partnership agreements
• Board minutes
• Criminal defence statements
• Civil statements of case
• Civil witness statements
o Must use clear, precise, concise and acceptable language
▪ Clarity in drafting and using accurate language is essential as ambiguity in a key provision of a document
will significantly undermine its effectiveness
▪ Normally have to include technical terms but these must be suitable for the legal document that you are
drafting
o Need to draft a document which is legally correct and legally comprehensive
▪ Starting point = analyse all assessment material and extract relevant information quickly but accurately
to draft the required document
▪ Need to plan the structure of the document and ensure compliance with all appropriate formalities
▪ Document produced must be legally effective and accurately reflect your instructions
▪ Need to identify and address all key relevant legal and factual issues put into assessment material by
examiner
o Need to identify any ethical and professional conduct issues and have exercised judgment to resolve
them honestly and with integrity
▪ Should have resisted any pressure put in instructions to condone, ignore or commit unethical behaviour
• Threshold Standard for Competency
o Autonomy is about drafting documents to the acceptable standard without the need for supervision
o Complexity
▪ Need to be able to deal not only with straightforward transactions but also unfamiliar tasks which
present a range of problems and choices
▪ The breath and dept of knowledge must be such that if you can draft one type of legal document in a
particular context, you could draft a similar one in a different context
• E.g. board meeting minutes
, o Should be able to list the matters that would typically comprise the minutes of a routine board
meeting
o Should then be able to add to that anything non-routine e.g. board considering a substantial
transaction/ appointment of a new director
o Perception of legal context
▪ Demonstrate an understanding of the significance of your actions in the context of the objectives of the
transaction you are dealing with/ the strategy for the case you are handling
▪ Need a strategy for the case/ transaction add4essing in the assessment in order to deliver its overall
objective
▪ Starting point with drafting any legal document is to plan its structure and content
▪ Plan is likely to consist of a list
▪ List should be in your head and contain all possible topics that you can include/ exclude according to
analysis of the information provided in the assessment material
o Only a limited role for innovation and originality in assessment
• Overview of drafting process
o Prepare
▪ Should allow about 10 minutes for preparation and planning
▪ May be given instructions on specific aspects of the document you are to draft e.g. basis and calculation
of interest in particulars of claim
▪ Materials may specify certain assumptions you can make
▪ May stipulate that you don’t need to deal with certain matters e.g. costs
▪ Pay attention to any instructions you have received from client
• May take form of correspondence/ note of a meeting with client/ statement
• May be contained in an email from a partner
▪ Client’s instructions should be starting point for any piece of drafting
▪ Shouldn’t assume that legal document which you are drafting has to include all the information which
has been provided to you
• Avoid simply copying across large chunks of the assessment materials into your draft
• Need to sift through information to identify what is relevant
▪ Having decided what information is relevant, convert it into a legal document which is concisely drafted,
achieves client’s intentions and is legally correct and comprehensive
o Plan
▪ Helpful to set out a structure before begin to draft using bullet points to remind you of the points you
need to cover in each area
▪ Ensures that the contents of the legal document are correct
o Draft
▪ Once have clear structure mapped out, can begin to draft
▪ Should be thinking of the layout and language of the legal document
• May be standard one e.g. will or may be dictated by rules e.g. CPR
• May be provided/ partly provided by a precedent supplied
▪ Are some common rules which apply to all the drafting which you will carry out in assessments:
• Layout
o Focus on making the legal document as easy to navigate and understand as possible by using
numbered paragraphs and sub-headings
• Language
o Focus on making draft as easy to read as possible
o Try to keep drafting as concise as possible
• Definitions
, o Almost every legal document will include some defined terms
o Think about which terms require definition
o If amending/ continuing an existing draft, should adopt existing definitions unless there is good
reason not to
o Defined terms are usually capitalised
o Remember to use the defined term all the way through the legal document
• Formalities
o Ensure that legal document is valid and effective → incorporate/ select the appropriate provisions to
achieve this when document is completed
o Check
▪ Vital to proofread document
▪ Should allocate some time in the 45 minutes to do this
▪ Checklist:
• Does the document make sense through the eyes of the recipient?
• Has information from your instructions been carried over accurately?
• Are names and dates correct?
• Has all key information been included?
• Have you used any defined terms correctly and consistently?
• Does the numbering work?
• Do the cross-references to other parts of the document work?
• Any errors of spelling/ grammar?
• Forms of drafting in the assessment
o May be asked to continue drafting a legal document which is partially complete
▪ Look to see what has already been done
▪ If document is a form, the areas for you to complete may be greyed out &/ there may be notes which give
you guidance on what to include
▪ Will want to note them on initial read through and check its complied with as you proofread completed
draft
o May be presented with a list of specimen clauses e.g. for a will/ different orders for directions in a civil
case and be asked to select appropriate ones to incorporate into draft, amending as necessary
▪ Process of selecting best clause is similar to SBAQ technique
▪ Focus on facts of case and client’s instructions to choose best option
o May be presented with existing draft and asked to amend it
▪ Instructions should make it clear whether need to show your changes to the draft
▪ A danger when reviewing an existing draft is that you are beguiled by what is already on the page and
don’t stop to consider what the document/ clause needs to contain
▪ To avoid this, should still use the same 4 stage process:
• Prepare
o check what client’s instructions are
o Don’t assume that these will be reflected in existing draft
• Plan
o step back from existing draft and remind yourself what this type of document/ clause should contain
o Check your list of points against version that has been provided
• Draft
o Having assessed how much amendment is required, can now decide whether to redraft whole thing
or simply tweak it, changing a few aspects until the draft works
• Check
o Make sure that any redrafted section makes sense and that it works with the rest of the document
, o E.g. any defined terms in existing document which must be used in redrafted section? Is redraft
consistent with other clauses or contradicts them?
o Above exercises may be combined
o May be asked to draft a document without precedent or existing draft → drafting from scratch
▪ Need to identify type of document being asked to draft if not clear from instructions
▪ Check whether being asked to draft whole document or only part of it
▪ Depending on type of document, may have existing structure in mind
▪ Apply any rules particular to that practice area
▪ If document is a type you haven’t come across before, remind yourself of common elements of most
documents and basics of defining terms and structuring clauses → use these are guide
• Ethical and professional conduct issues
o Dispute Resolution
▪ Solicitor must only make assertions/ put forward statements/ representations/ submissions to court/
others which are properly arguable
• E.g. solicitor shouldn’t allege in statement of case that opponent has acted fraudulently unless there is
evidential basis for this
▪ When documents are being amended & negotiated between parties, must not attempt to mislead the
other side by concealing amendments made to draft
▪ Shouldn’t take advantage of clear mistakes made by other side
o Undertakings
▪ Should only given an undertaking if have client’s express authority to do so
▪ Subject matter of undertaking must be within your control
o Conflicts of interest
▪ Solicitor shouldn’t act where there is own interest conflict/ significant risk of such a conflict
▪ Might come into play when a solicitor is drafting a will and client wishes to make gift of significant value
to solicitor/ someone connected with them e.g. member of their family
• Shouldn’t include gift in first draft of will
• Should add note that provision cant be included until client has taken independent advice on it
▪ Client may wish to appoint solicitor as executor under their will
• Potential own interest conflict as solicitor will charge for services acting as executor
• Solicitor musts ensure that client has made decision to appoint them on a fully informed basis, having
explained the options available to the client as to the choice of executor and recoding the advice that
has been given
▪ Take care that you are acting only on instructions of testator themselves and not from another person
purporting to give instructions on their behalf
Legal Drafting
• the task of creating a legal document
• Can include preparing a document from scratch, following a template/ precedent/ completing a form
• 4 stage process:
o Preparation and research
▪ Take full instructions, undertake any further enquires which are needed, identify the objectives/ purpose
of the legal document, research the law
o Planning
▪ Decide on best structure and necessary content
o Drafting
▪ Clearly and concisely set out information/ points following plan
o Checking
Basic principles of good drafting; clear, precise, concise and acceptable language
Assessment
• Form
o Instructions and any supporting documents will be provided electronically
o Will have 45 minutes to complete answer
• Assessment Criteria
o Expected to know and address detail that a Day One Solicitor wouldn’t have to look up .: may be provided
with legal materials where SRA considers that a Day One Solicitor would need to refer to those materials
o Must structure document drafted appropriately and logically
▪ If document has recognised structure, must follow that e.g.:
• Property certificates of title
• Property contracts and transfers
• Leases
• Deeds of assignment of a lease
• Licenses to assign a lease and licences to underlet
• Wills and codicils
• Shareholders agreements
• Partnership agreements
• Board minutes
• Criminal defence statements
• Civil statements of case
• Civil witness statements
o Must use clear, precise, concise and acceptable language
▪ Clarity in drafting and using accurate language is essential as ambiguity in a key provision of a document
will significantly undermine its effectiveness
▪ Normally have to include technical terms but these must be suitable for the legal document that you are
drafting
o Need to draft a document which is legally correct and legally comprehensive
▪ Starting point = analyse all assessment material and extract relevant information quickly but accurately
to draft the required document
▪ Need to plan the structure of the document and ensure compliance with all appropriate formalities
▪ Document produced must be legally effective and accurately reflect your instructions
▪ Need to identify and address all key relevant legal and factual issues put into assessment material by
examiner
o Need to identify any ethical and professional conduct issues and have exercised judgment to resolve
them honestly and with integrity
▪ Should have resisted any pressure put in instructions to condone, ignore or commit unethical behaviour
• Threshold Standard for Competency
o Autonomy is about drafting documents to the acceptable standard without the need for supervision
o Complexity
▪ Need to be able to deal not only with straightforward transactions but also unfamiliar tasks which
present a range of problems and choices
▪ The breath and dept of knowledge must be such that if you can draft one type of legal document in a
particular context, you could draft a similar one in a different context
• E.g. board meeting minutes
, o Should be able to list the matters that would typically comprise the minutes of a routine board
meeting
o Should then be able to add to that anything non-routine e.g. board considering a substantial
transaction/ appointment of a new director
o Perception of legal context
▪ Demonstrate an understanding of the significance of your actions in the context of the objectives of the
transaction you are dealing with/ the strategy for the case you are handling
▪ Need a strategy for the case/ transaction add4essing in the assessment in order to deliver its overall
objective
▪ Starting point with drafting any legal document is to plan its structure and content
▪ Plan is likely to consist of a list
▪ List should be in your head and contain all possible topics that you can include/ exclude according to
analysis of the information provided in the assessment material
o Only a limited role for innovation and originality in assessment
• Overview of drafting process
o Prepare
▪ Should allow about 10 minutes for preparation and planning
▪ May be given instructions on specific aspects of the document you are to draft e.g. basis and calculation
of interest in particulars of claim
▪ Materials may specify certain assumptions you can make
▪ May stipulate that you don’t need to deal with certain matters e.g. costs
▪ Pay attention to any instructions you have received from client
• May take form of correspondence/ note of a meeting with client/ statement
• May be contained in an email from a partner
▪ Client’s instructions should be starting point for any piece of drafting
▪ Shouldn’t assume that legal document which you are drafting has to include all the information which
has been provided to you
• Avoid simply copying across large chunks of the assessment materials into your draft
• Need to sift through information to identify what is relevant
▪ Having decided what information is relevant, convert it into a legal document which is concisely drafted,
achieves client’s intentions and is legally correct and comprehensive
o Plan
▪ Helpful to set out a structure before begin to draft using bullet points to remind you of the points you
need to cover in each area
▪ Ensures that the contents of the legal document are correct
o Draft
▪ Once have clear structure mapped out, can begin to draft
▪ Should be thinking of the layout and language of the legal document
• May be standard one e.g. will or may be dictated by rules e.g. CPR
• May be provided/ partly provided by a precedent supplied
▪ Are some common rules which apply to all the drafting which you will carry out in assessments:
• Layout
o Focus on making the legal document as easy to navigate and understand as possible by using
numbered paragraphs and sub-headings
• Language
o Focus on making draft as easy to read as possible
o Try to keep drafting as concise as possible
• Definitions
, o Almost every legal document will include some defined terms
o Think about which terms require definition
o If amending/ continuing an existing draft, should adopt existing definitions unless there is good
reason not to
o Defined terms are usually capitalised
o Remember to use the defined term all the way through the legal document
• Formalities
o Ensure that legal document is valid and effective → incorporate/ select the appropriate provisions to
achieve this when document is completed
o Check
▪ Vital to proofread document
▪ Should allocate some time in the 45 minutes to do this
▪ Checklist:
• Does the document make sense through the eyes of the recipient?
• Has information from your instructions been carried over accurately?
• Are names and dates correct?
• Has all key information been included?
• Have you used any defined terms correctly and consistently?
• Does the numbering work?
• Do the cross-references to other parts of the document work?
• Any errors of spelling/ grammar?
• Forms of drafting in the assessment
o May be asked to continue drafting a legal document which is partially complete
▪ Look to see what has already been done
▪ If document is a form, the areas for you to complete may be greyed out &/ there may be notes which give
you guidance on what to include
▪ Will want to note them on initial read through and check its complied with as you proofread completed
draft
o May be presented with a list of specimen clauses e.g. for a will/ different orders for directions in a civil
case and be asked to select appropriate ones to incorporate into draft, amending as necessary
▪ Process of selecting best clause is similar to SBAQ technique
▪ Focus on facts of case and client’s instructions to choose best option
o May be presented with existing draft and asked to amend it
▪ Instructions should make it clear whether need to show your changes to the draft
▪ A danger when reviewing an existing draft is that you are beguiled by what is already on the page and
don’t stop to consider what the document/ clause needs to contain
▪ To avoid this, should still use the same 4 stage process:
• Prepare
o check what client’s instructions are
o Don’t assume that these will be reflected in existing draft
• Plan
o step back from existing draft and remind yourself what this type of document/ clause should contain
o Check your list of points against version that has been provided
• Draft
o Having assessed how much amendment is required, can now decide whether to redraft whole thing
or simply tweak it, changing a few aspects until the draft works
• Check
o Make sure that any redrafted section makes sense and that it works with the rest of the document
, o E.g. any defined terms in existing document which must be used in redrafted section? Is redraft
consistent with other clauses or contradicts them?
o Above exercises may be combined
o May be asked to draft a document without precedent or existing draft → drafting from scratch
▪ Need to identify type of document being asked to draft if not clear from instructions
▪ Check whether being asked to draft whole document or only part of it
▪ Depending on type of document, may have existing structure in mind
▪ Apply any rules particular to that practice area
▪ If document is a type you haven’t come across before, remind yourself of common elements of most
documents and basics of defining terms and structuring clauses → use these are guide
• Ethical and professional conduct issues
o Dispute Resolution
▪ Solicitor must only make assertions/ put forward statements/ representations/ submissions to court/
others which are properly arguable
• E.g. solicitor shouldn’t allege in statement of case that opponent has acted fraudulently unless there is
evidential basis for this
▪ When documents are being amended & negotiated between parties, must not attempt to mislead the
other side by concealing amendments made to draft
▪ Shouldn’t take advantage of clear mistakes made by other side
o Undertakings
▪ Should only given an undertaking if have client’s express authority to do so
▪ Subject matter of undertaking must be within your control
o Conflicts of interest
▪ Solicitor shouldn’t act where there is own interest conflict/ significant risk of such a conflict
▪ Might come into play when a solicitor is drafting a will and client wishes to make gift of significant value
to solicitor/ someone connected with them e.g. member of their family
• Shouldn’t include gift in first draft of will
• Should add note that provision cant be included until client has taken independent advice on it
▪ Client may wish to appoint solicitor as executor under their will
• Potential own interest conflict as solicitor will charge for services acting as executor
• Solicitor musts ensure that client has made decision to appoint them on a fully informed basis, having
explained the options available to the client as to the choice of executor and recoding the advice that
has been given
▪ Take care that you are acting only on instructions of testator themselves and not from another person
purporting to give instructions on their behalf
Legal Drafting
• the task of creating a legal document
• Can include preparing a document from scratch, following a template/ precedent/ completing a form
• 4 stage process:
o Preparation and research
▪ Take full instructions, undertake any further enquires which are needed, identify the objectives/ purpose
of the legal document, research the law
o Planning
▪ Decide on best structure and necessary content
o Drafting
▪ Clearly and concisely set out information/ points following plan
o Checking
