UPDATED FOR THE NEW BAR EXAM FORMAT
Drafting Questions: Analyzed through a past exam question on Obligations
During your Drafting Exam, as the name states, you’ll be faced with a drafting question (redaction). In the previous Bar Exam format, you had to only draft the conclusions for some proceeding (or the header occasionally). Now, you need to write the entire proceeding (heading, body, and conclusions). Points are awarded both for content and for form.
The best way how to prepare for these questions is to do as many of the drafting questions as you can in past exams (pre-2005) and these questions require that you draft the entire proceeding. 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) draft as simply as possible; better have more points clearly listed out in multiple sentences than one run-on sentences that encompasses too much; (2) if you have the choice of using a term found in the law or another term, use the term found in the law; (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 ».