Oral advocacy, which we discussed in my last post, is only one aspect of life as a litigator. An equal, if not greater, time and effort is spent in drafting legal documents, which help sustain everyday transactions.
How are the set of skills required for these nurtured in law school? Students at NLSIU only spend one-thirtieth of their time on average trying to draft documents – once during the Drafting Pleading and Conveyancing course in the third year and then in the Trial Advocacy course in the final year. This is undoubtedly a very short amount of time to develop these skills. At times, the focus was to get through as many documents as possible which curtailed the time spent on understanding the meanings of terms involved. Students therefore, end up not much better off compared to those people who may seek them out for advice on a verbose document. This encourages students, upon graduation, to use templates without appreciating how each clause may need tinkering for different situations.
There are structural issues at play as well. The current system views drafting mainly as an individual-centric exercise, teaching only those legal documents that natural persons execute among themselves or file in a court. We were taught how to draft mortgage deeds, sale agreements, and bail applications – but always for individuals and never from the perspective of corporate transactions. Elective courses apart, there is no training for drafting or understanding proper contracts, non-disclosure agreements, and their various clauses. This inexperience severely limits the exposure possible at internships, particularly in law firms.
The little that is being taught however, is surprisingly useful in the practice of law. That is simply because documents like sale deeds, bail applications, quashing petitions and the like still contain many formulaic elements and their form has not drastically changed over the last twenty-five years. The law school has been rather adept at simply providing the students those templates for later use. But is that a good thing? I think not.
In failing to critically deal with status quo, the law schools lets go of its most important responsibility – making the students think about the legal system. The manner in which legal documents continue to be drafted in India is very archaic, verbose, and hyper-technical; all of which pushes the common man even further away from the justice system. Is there an irreplaceable benefit to retaining the several “wherefore”s, “whereas”’, and “henceforth”s in a deed? None – apart from the apparent benefit of making it sound legal.
I view this as a symptom of a problematic imbalance in place at law schools today. Courses are designed to make students familiar with the text of the law, but not its application. There are hardly any drafting sessions during the two mandatory courses on contract law. Criminal procedure was taught without ever looking at a bail application. Similarly, property law went by without ever going through an actual sale deed or mortgage deed. The point is clear. National law schools must narrow the divide between the teaching of statutes and precedent and their application to real-world scenarios. Otherwise, their very purpose of providing India with socially useful lawyers may be lost.
(Abhinav Sekhri is an advocate practising in Delhi.)