Drafting and Opinion Writing Flashcards

When drafting a witness statement for use in civil proceedings, what must the statement contain?

Answer: The witness's evidence in their own words, covering matters of fact within their personal knowledge, with a statement of truth

Under CPR Practice Direction 32, a witness statement must be in the witness's own words, set out facts of which the witness has personal knowledge, be expressed in the first person, and contain a statement of truth. It should not contain legal argument, submissions, or comment on the evidence of other witnesses.

What is the purpose of a counterclaim, and how is it drafted?

Answer: It is a claim by the defendant against the claimant, set out in the same document as the Defence or in a separate document, and must satisfy the same pleading requirements as Particulars of Claim

A counterclaim is a claim made by the defendant against the claimant within the same proceedings. Under CPR Part 20, it is treated as a separate claim but is usually set out alongside the Defence. It must contain the same elements as Particulars of Claim — material facts, legal basis, and the remedy sought.

In opinion writing, what does 'advising on quantum' mean?

Answer: Advising on the amount of damages the client is likely to recover or be liable for

Advising on quantum means advising on the likely amount of damages. This involves analysing the heads of damage (general and special damages), reviewing medical evidence and financial losses, considering relevant case law on comparable awards, and providing a realistic range of the likely award at trial.

What is the 'statement of truth' that must be included on certain documents under the CPR?

Answer: A statement that the party believes the facts stated in the document are true, which carries sanctions for false statements

Under CPR Part 22, a statement of truth verifies that the party putting forward the document believes the facts stated to be true. It must be signed by the party or their legal representative. Making a false statement of truth without honest belief is contempt of court and can result in proceedings for contempt.

When drafting an indictment for a criminal case, what must each count contain?

Answer: A statement of the offence (naming the offence and the statute) and particulars of the offence (describing the essential facts)

Each count of an indictment must contain two parts: the statement of offence (identifying the offence by name and the statutory provision creating it) and the particulars of offence (setting out the essential factual allegations, including the defendant's identity, the date, and the nature of the criminal conduct). This ensures the defendant knows precisely what they face.

What is the 'brief to counsel' and what does it typically contain?

Answer: A bundle of documents sent by the instructing solicitor to the barrister, containing instructions, statements of case, witness statements, expert reports, and relevant correspondence

The brief to counsel is the package of documents and instructions prepared by the instructing solicitor for the barrister. It typically contains a backsheet, the solicitor's instructions, statements of case, witness statements, expert reports, documentary evidence, relevant correspondence, and any previous counsel's opinions. It is the barrister's primary source of information about the case.