Bar Training Course (BTC) Drafting, Opinion Writing and Legal Research Flashcards

24 sample cards from the Drafting, Opinion Writing and Legal Research deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. Who bears the burden of proof in a civil claim and to what standard?

   The claimant bears the burden of proving the elements of the claim; the standard is the balance of probabilities (more likely than not, i.e. greater than $50\%$).

2. What is the difference between the legal (persuasive) burden and the evidential burden?

   The legal burden is the obligation to prove a fact to the required standard at trial. The evidential burden is the obligation to adduce enough evidence to raise an issue for the court to consider.

3. What does it mean to give 'commercial' advice as opposed to purely legal advice?

   Advice that takes account of the client's business and practical objectives, costs, risk, time and reputation, recommending the option that best serves the client's real-world interests rather than just the technically correct legal answer.

4. What are the hallmarks of good, practical advice to a client?

   Clear and unambiguous; gives a definite recommendation; addresses what the client actually wants to know; weighs risk, cost and time; sets out realistic options and next steps; and avoids unnecessary jargon.

5. What is meant by advice being 'clear' and why is it important?

   The reader can understand exactly what counsel advises without ambiguity. It matters because clients and solicitors must act on the advice, and unclear advice causes mistakes, delay, and may breach the duty to advise competently.

6. List the core principles of good legal drafting.

   Be clear, concise and unambiguous; use plain English; be accurate and complete; follow a logical structure; use consistent terminology and defined terms; avoid surplusage; and ensure the document is internally consistent and achieves the client's purpose.

7. Why is consistency of terminology essential in drafting?

   Using the same word for the same thing (and never the same word for different things) avoids ambiguity; varying terms invites an inference that different meanings were intended, creating uncertainty and potential disputes.

8. What is a statement of case (formerly 'pleading')?

   A formal court document in which a party sets out its case: e.g. claim form, particulars of claim, defence, reply, counterclaim. It defines the issues in dispute between the parties.

9. What is the function of particulars of claim?

   To set out concisely the facts the claimant relies on to establish each element of the cause of action, the relief/remedy sought, and any matters required by the rules, so the defendant knows the case to be met.

10. What must particulars of claim contain under the CPR?

    A concise statement of the facts relied on; details of any interest claimed; the remedy sought; any required specific matters (e.g. for personal injury, the claimant's date of birth and injuries); and a statement of truth.

11. What is a statement of truth and who may sign it?

    A signed declaration that the party believes the facts stated in the document are true. It may be signed by the party, their litigation friend, or their legal representative; a false statement without honest belief may amount to contempt of court.

12. What is the golden rule about pleading facts rather than evidence or law in a statement of case?

    Statements of case must state the material facts relied on, not the evidence by which they are proved, and generally not legal argument. You plead the facts that give rise to the cause of action, concisely.

13. In drafting a defence, what must a defendant do in response to each allegation under CPR 16.5?

    For each allegation the defendant must state whether it is admitted, denied, or not admitted (requiring proof). Denials must be accompanied by reasons and, where appropriate, the defendant's own version of events.

14. What is the consequence of failing to deal with an allegation in a defence?

    Under CPR 16.5, an allegation not dealt with is generally taken to be admitted (subject to exceptions, e.g. money claims), so a defendant must address every material allegation to avoid deemed admissions.

15. What is the difference between a 'denial', a 'non-admission' and an 'admission' in a defence?

    Admission: the defendant accepts the allegation is true. Denial: the defendant positively asserts it is untrue (and should give reasons/an alternative version). Non-admission: the defendant neither admits nor denies and requires the claimant to prove it.

16. What is a counterclaim?

    A claim brought by the defendant against the claimant within the same proceedings (an additional claim under CPR Part 20), allowing the defendant to assert its own cause of action arising from related facts.

17. What is an interim application and when is it made?

    An application to the court for an order during the course of proceedings (before final determination), e.g. for summary judgment, an injunction, disclosure, or strike out. It is governed by CPR Part 23.

18. What must an application notice (Form N244) under CPR Part 23 contain?

    What order the applicant seeks; briefly why the applicant is seeking it (the grounds); the applicant's details; whether a hearing is requested; and it must usually be supported by evidence (witness statement) and served on the respondent.

19. What is the typical structure of a draft order for an interim application?

    Heading (court, claim number, parties); a recital of who applied and what was read/heard; numbered operative paragraphs stating precisely what is ordered (mandatory/prohibitory terms); provision for costs; and the date. It must be clear and capable of enforcement.

20. Why must the terms of a draft order be especially clear and precise?

    Because the order must be capable of being obeyed and enforced; ambiguity can render it ineffective, and breach of a clear order (especially an injunction) can found contempt proceedings, so the obligations must be unambiguous.

21. What is a skeleton argument?

    A concise written outline of a party's submissions for a hearing, setting out the issues, the propositions of law and fact relied on, and the authorities, to assist the court and the other side in preparing for the hearing.

22. What are the key features of a well-drafted skeleton argument?

    Concise and numbered paragraphs; a clear statement of the issues; the submissions in logical order; reference to key authorities (with the proposition each supports); cross-references to the bundle; and it should not argue the case in full but signpost the argument.

23. What should a skeleton argument NOT do?

    It should not be a substitute for oral argument or recite the facts/evidence at length, quote authorities verbatim at length, or be argumentative and discursive; it should be concise, focused on the issues, and assist rather than overwhelm the court.

24. What is the recommended order of legal authorities when citing in submissions or a skeleton, and which courts bind which?

    Cite the most authoritative and relevant first. Hierarchy: Supreme Court (formerly House of Lords) binds all lower courts; Court of Appeal binds the High Court and below; the High Court binds lower courts. Decisions of higher courts bind lower courts on points of law (stare decisis).

What this deck covers

Drafting, Opinion Writing and Legal Research flashcards FAQ