Drafting Questions: Analyzed through a past exam question on Obligations
During the first day of the Quebec Bar Exams (it used to be the second), you’ll be faced with a drafting question (redaction). Generally, this question asks you to write the conclusions for some proceeding. This is normally worth either 3 or 4 points on the exam and unlike all the other exam questions, you actually know how many points it is worth while writing the exam. Normally, the amount of points will read something like: “This question is worth 3 points where 1 point will be attributed to successfully employed drafting techniques.” This means that 2 points are for content and 1 point for style and form. Generally, the number of non-style points will be indicative of the number of conclusions to be written. For example, in the situation above where the question was on 3 points, the Bar was looking for 2 conclusions to be drafted (see past exam question below). However, it should be mentioned that during the 2019-2020 exam cycle, one of the drafting questions was worth 5 points (3 for the conclusions and 2 for the header).
The best way how to prepare for these questions is to do as many of the drafting questions as you can in past exams. Many of these questions require that you draft the entire proceeding. This is unnecessary, rather, you can simply write the entête (the header) and then the conclusions; no need to draft all the statements in between as these will most likely not be asked on the exam. Also, you want to review all of the drafted exercises which were completed in Bar School. The actual question asked will bear some similarity to those studied in the classroom. The keyword in that last sentence was “some similarity”. The question will not be identical, rather it will only touch on the subject which should hopefully give you an indication of the wording to use for your conclusions in order not to lose points for form.
Here are a couple of tricks to keep in mind: (1) if you have the choice of using a term found in the law or another term, use the term found in the law, (2) the number of conclusions the Bar is looking for is generally the number of the points the question is on minus 1, (3) too many conclusions lose you points, so only write the minimum which achieves the hypothetical client’s objectives, and (4) the Collection de droit book on Redaction will be virtually useless to help you answer the question, so don’t waste your time going through it during the exam trying to figure out how to draft the answer.
Let’s take a recent bar question as an example, it read something like the following: Four people (Bob, Jane, Louis, and Francine) are running a business together and they approach a bank to take out a loan for their business. The bank loans them a total of $100,000 at 5% interest for one year. The loan is not repaid and the bank demands repayment of $105,000 from the wealthiest of the four partners (Bob) who pays the entire loan back with interest. In the meantime, one of the business partners (Jane) has become insolvent. The partner who paid (Bob) is seeking to have the other two partners (Louis and Francine) pay their respective shares. Draft the conclusions of the proceeding against the two partners who did not pay.
Off the bat, a couple facts should stand out. First, the loan was obtained for the purpose of a business which means that the partners are solidarily responsible for its repayment (1525 C.C.Q.) Second, one of the partners is insolvent which means that his or her share falls equally on the remaining partners due to the solidary nature of the debt (1538 C.C.Q.) Third, a solidary debtor who pays the whole debt back may claim from the remaining debtors their respective shares which are presumed to be equal shares of the debt (1536-7 C.C.Q.). This means that the partner who paid can sue each of the solvent remaining partners for a third of the debt (since the insolvent partner’s part is divided equally between the paying partners) which represents $35,000. Fourth, since there was no demand letter sent to the other co-debtors, interest starts to run from the date of the summons (l’assignation). As you can see, the Bar decided to throw in some legal hurdles in order to complicate the problem so that you need to understand the legal framework of the question in addition to knowing how to draft.
Drafting the conclusions would then be done in the following manner:
FOR THESE REASONS, MAY IT PLEASE THE COURT:
-CONDEMN Louis to pay to Bob the sum of $35,000 with interest at 5% and the additional indemnity since the summons;
-CONDEMN Francine to pay to Bob the sum of $35,000 with interest at 5% and the additional indemnity since the summons;
THE WHOLE with costs.
*Since the interest is 5%, it may also be drafted as “at the legal rate”.
or in French:
POUR CES RAISONS, PLAISE AU TRIBUNAL:
-CONDAMNER Louis à payer à Bob la somme de $35,000 avec les intérêts au taux de 5% et l’indemnité additionnel depuis l’assignation;
-CONDAMNER Francine à payer à Bob la somme de $35,000 avec les intérêts au taux de 5% et l’indemnité additionnel depuis l’assignation;
LE TOUT avec les frais.
*Le taux d’intérêt peut aussi être rédigé comme étant « au taux légal ».