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How to Write a Legal Brief?

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This post is written by Ms. Ritu Sajnani.

When it comes to establishing a lawyer’s personal brand image, there are two components that stand out above the rest. The first is convincing speaking, and the second is persuasive writing. 

A strong grasp of the language can help to make your argument undisputable. It takes skill to craft a convincing brief that will enable the judge to swiftly understand your opinion and the supporting evidence you are using to support the desired relief. 

We do know one thing about Indian court judges: they are exceptionally busy. The lack of time also brings persistent efficiency that enables them to comprehend the open and hidden fundamentals of every case. It is a lawyer’s responsibility to prevail and prevail quickly during the few minutes of the hearing. 

Let’s understand what is (Legal) Brief: 

A brief is a document drafted by lawyers, containing facts, reasoning, and arguments in relation to a case, that are required to be presented in court. It is a written statement prepared by attorneys and submitted to a court outlining the facts and justifications to rule in one person’s favour. To convince the court that a client’s argument is stronger than the opposition. 

A legal brief must be produced with the utmost precision and accuracy.

The purpose of a legal brief must be obvious, and it must be written rationally and concisely to explain the client’s justification for filing the matter, the desired outcome, and the reasons the court should support the client’s position. 

Now, you must be wondering what a brief look like or what is the subject matter it contains.

So, let’s see what are the contents of a legal brief:

  • Title & citation: The title page is the very first page of your brief. It contains the case name, case number, and the name of the court in which it will be put forth. Whereas citation means, to quote a relevant legal source such as a constitution, statute, previous judgements, etc for the benefit of the court.
  • Table of contents: This page will contain all the headings and subheadings you have used in your brief along with their page numbers. A well-designed table of contents must be included in the legal brief so that the judge may easily refer to any section without difficulty.
  • Table of authorities: The table of authorities lists all the legal evidence that is cited to support a claim or assertion. It functions similarly to a bibliography and aids the court and opposing counsel in locating the original publication of any case law, report, decision, or statute.
  • Statement of facts: A statement of facts is a description of the facts provided from the client’s perspective that also contains a broad explanation of the client’s case.
  • Summary of the issues: This is a crucial part of any brief. We can consider it as a strategic staging or presenting of facts in a way that addresses the legal issues in a case.
  • Arguments: Arguments are the aspects of the case that persuade the judge to rule in favour of your client. Legal research is used to back up arguments, which are presented in an engaging and constructive way.
  • Conclusion: It is basically a summary of the entire brief. A legal brief must have a summary that gives background information on the subject and calls attention to key arguments and facts.

Here are a few things to keep in mind to make your brief much stronger: 

One of the most crucial tools Indian attorneys employ to strengthen their clients’ positions and refute the claims made by the opposing counsel is a legal brief. Lawyers who are proficient in writing and drafting can engage with clients and the court more effectively and build a stronger legal business for themselves. 

  • Know your client well – You must be completely knowledgeable about your client’s case in order to represent them. You are required to conduct an in-depth study on the subject so that you can later produce legal documents that will be advantageous to your client.
  • Honest arguments – There are duties associated with practising law. It is in your best interests as a responsible attorney to create arguments that are factually accurate, true, and authentic. Being dishonest won’t help you advance in your legal career.
  • Precision of facts – You should always be precise when you are putting in the statements of facts in your brief. Long and lengthy paragraphs are not appreciated when we consider drafting a brief. It should always be to the point.
  • Systematic drafting – A legal brief needs to be written as concisely as possible and shouldn’t be overly long. It needs to be well-organized and well-reasoned! A legal brief must include a central subject that should outline the entire course of the case’s occurrences.
  • Use of good grammar – Clear and effective communication depends on good grammar. The effect of your brief can be greatly increased by using proper punctuation. It is not enough to simply be understood; you also want to be trustworthy. A neat and well-written document will be chosen by the judge to better comprehend the case than the average draft from your opposition, particularly in Indian courts where the majority of attorneys fail to pay enough attention to grammatical details in both speaking and writing.
  • Strong summary – A brief should contain a thorough overview that highlights all the key pieces of evidence and the cases key concerns.

Contract Law Doctrines You Must Know!

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This blog post is written by Ms. Ritu Sajnani & Ms. Sarah Rizvi. 

Relevance of Common Law doctrines

Contracts are an indispensable part of trade and commerce. In India, the law governing contracts is formulated on the principles of English Common Law and the Indian Contract Act, enacted by the British in 1872. The Indian Contract Act, 1872 (the “Act”) embodies general rules and principles pertinent to all business agreements, transactions, or deals. 

In simple words, a doctrine is a principle involved in the interpretation of the policy. There are certain doctrines under the Act which form pillars of the Contract Law in India and have been extensively followed in practice, some of which are elucidated below:

1. Doctrine of Consideration

The doctrine of consideration is the foremost principle codified under the Act. Section 2(d) of the Act states that, “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise”. 

Thus, for consideration to be considered lawful, it must proceed at the desire of the promisor only. Furthermore, consideration doesn’t necessarily have to be adequate in nature, although it must be real in nature and not impossible or illusory or unlawful, in the past, present or future. 

However, there may be certain circumstances in which it would not be appropriate to apply the principle of consideration to satisfy the basic motives of the law. Section 25 of the Act regulates such situations, and states that, “Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law”. Section 25 further details these circumstances to include an agreement made on account of natural love and affection or between near relatives, a binding promise to pay for a past voluntary service, or a time-barred debt, or an agreement for a completed gift.  

2. Doctrine of Restitution

The word ‘restitution’ is derived from the Latin term ‘restituere’ which means ‘restore’ or ‘establish again’.  It is imperative that when a contract is rendered void, neither party is obligated to execute it. However, the principle of restitution becomes applicable if following a valid contract, one party fails to perform his or her part of the contract or the contract becomes void due to an unanticipated event. Under such circumstances, the party which received a benefit from the other is required to return or restore or compensate the other party for the benefit received.

Section 65 of the Act recognizes the principle of Restitution and defines it as, “When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.”

Furthermore, the doctrine of restitution is not applicable in cases where there is no agreement or contract between the parties, if the agreements are void-ab-initio, or if are entered with persons incompetent to contract.

3. Doctrine of Frustration

Frustration of the contract occurs when the object of the contract is yet to be accomplished, and the contract’s fulfillment is rendered impossible due to external reasons beyond the parties’ control and contemplation. It covers both the impossibility to complete the contract and the impossibility to satisfy the object for which the contract was executed. 

Section 56 of the Act embodies the Doctrine of Frustration and states as below:

  • An agreement to do an act impossible in itself is void
  • A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

The doctrine of frustration is based on the maxim ‘Lex non cogit ad Impossibilia’, which means that ‘Law does not compel the Impossible’. It suspends the rights and liabilities of the parties to the contract, unless one of the parties was aware of or after reasonable diligence, might have known about the impossible or the unlawful. In such instances, the promisor is required to make compensation to such promisee for any loss which such promisee sustains through the nonperformance of the promise.

4. Doctrine of Privity of Contract

In contracts, the terms such as restrictive covenant, non-compete, confidentiality and non-disclosure obligations are frequently used to impose obligations on the contracting parties’ affiliates, agents, relatives, etc. 

The Doctrine of Privity is based on the common law principle that the rights and obligations of a contract can only be imposed on the parties to the contract and no third person would be entitled to or bound by the contract to which he is not an original party.

Thus, the three essentials of this Doctrine are:

  • The third party cannot enforce the contract if he is not a party to that contract
  • The third party cannot be held liable under a contract if he is not a party to that contract
  • The third party cannot receive any benefit if he is not a party to that contract

5. Doctrine of Ratification

Ratification and its effect are explained under Section 196 of the Act as “Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effect will follow as if they had been performed by his authority.”

Section 196-200 of the Act establishes this Doctrine, and can be interpreted as the principle which deals with acts performed by an agent on behalf of an unauthorized principal. In short, an adherence occurs whenever an adhering Party expressly accepts liability for unauthorized transactions purportedly carried out on its behalf. There is no obligation not to communicate this intention to third parties or representatives. Explicit ratification is self-explanatory. However, implied approval occurs when either the principal’s actions or circumstances suggest that the principal approves of the agent’s actions.

6. Doctrine of Estoppel

Promissory estoppel is a doctrine in contract law that stops a person from going back on a promise even if a legal contract does not exist.

Fundamental components of promissory estoppel are as below:

  • There must be an existence of a lawful relationship or a relationship anticipated to exist between the two parties. 
  • It must be clearly displayed that a reasonable promise was made between the two parties which ultimately led the aggrieved party to presume that some kind of action needs to be taken. 
  • Aggrieved party’s reliance on the promise made must be displayed clearly – on account of which, the aggrieved party took some action.
  • Damage: The aggrieved party who relied upon the promise so made must suffer some damage or loss. 
  • It must be clearly demonstrated that it was unjust for the promisor to break the promise. 

7. Doctrine of Unjust Enrichment

When a person has been unfairly benefitted at the expense of the other person, it is called ‘unjust enrichment’. 

Essentials of this Doctrine:

  • The defendant has been enriched by the unjust benefit
  • This enrichment has taken place at the expense of the plaintiff
  • The enrichment which has been acquired is unjust or unfair

Section 68 of the Act states the remedies to unjust enrichment. Typically, in the cases related to unjust enrichment, the court directs the unfairly benefitted person to give back all the benefits which he/she acquired unfairly or to give compensation. The defendant is obliged by natural justice and equity to pay back.

Highlights of the Digital Personal Data Protection Bill, 2022

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This blog post is written by Ms. Ritu Sajnani. 

Significance of Data Protection and its Journey so far

Privacy is as important as any other Human Right, as it forms a part of a person’s identity. Given this, the Government has been making efforts to protect the digital data of persons. The journey of Digital Personal Data Protection Bill, 2022 released on November 18, 2022 (“Draft Bill 2022”) dates back to August, 2017 when the Supreme Court recognised Privacy as a Fundamental Right and constitution of Justice BN Srikrishna Committee to frame data protection norms. 

Subsequently, several iterations of this bill were introduced by the Ministry of Electronics and Information Technology:

  • Personal Data Protection Bill, 2018 on July 27, 2018;
  • Personal Data Protection Bill, 2019 on December 11, 2019 (“2019 Bill”); and
  • Personal Data Protection Bill, 2021 on December 16, 2021 (“2021 Bill”)

On August 3, 2022, the Parliament withdrew the 2019 Bill with an intent to introduce a more comprehensive framework of data protection. Finally, the Draft Bill 2022 was released – which is open for public consultation till December 17, 2022.

The Draft Bill 2022, if passed, will replace the already present data protection law under Section 43A of the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data of Information) Rules, 2011.

Key takeaways from the Draft Bill 2022 

  • Meaning and scope of Personal Data

The 2019 and 2021 Bills categorized personal data into sensitive personal data and critical personal data etc. Such categorization has been removed in the 2022 Draft Bill. Personal data is now referred to as ‘data about an individual who is identifiable by or in relation to such data’. Further, the Draft Bill 2022 only considers ‘Automated Personal Data’ and does not apply on non-automated processing of personal data, offline personal data, personal data processed by an individual for any personal/ domestic purpose, and personal data about an individual record of which exists for at least 100 years.

  • Extraterritorial Application 

The data transfer provisions have been simplified in the Draft Bill 2022. The provisions of this Bill not only apply to personal data within the territory of India, but also to processing of such data outside the territory of India, if such processing is in connection with any profiling of or activity of offering goods or services to data principals in India. 

  • Data transfer

Data transfer may only be allowed to certain countries, subject to the Central Government’s terms and conditions, which it may notify, after assessment of necessary factors.

  • Consent-led approach

Consent is now required to be given freely, specific, informed, explicit and unambiguous. Additionally, forms of procuring consent should be translated into all languages mentioned in the 8th schedule of the Indian Constitution. A data principal has the right to give, manage, review, and withdraw the consent provided to the data fiduciary. The concept of deemed consent has also been introduced which is brought in circumstances like an emergency, purposes related to employment, and fair and reasonable purpose as may be prescribed by the Central Government and where the data principal voluntarily provides such data to the data fiduciary and it is reasonably expected that the same would be provided.

  • Personal Data of Children

Parental consent has been made compulsory before processing any personal data belonging to a child. A data fiduciary is obligated not to undertake any such processing likely to cause harm to the child. Additionally, undertaking tracking or behavioral monitoring of children or targeted advertising directed at children is prohibited.

 

  • Data Protection Board of India (“Board”)

The Data Protection Authority has been replaced by the Data Protection Board of India and the functions, composition and powers of the Board are different from the 2019 and 2021 Bills. Furthermore, the Board does not have an ability to initiate subordinate legislation. The main functions of the Board include determining of non-compliance, imposition of penalties, conducting enquiries, directing parties to resolve complaints through ADR methods, and directing adoption of response measures in case of personal data breach. It is pertinent to note that powers related to implementation of the law are proposed to be prescribed by the Government through Rules, most of which, under the earlier Bills, were with the Data Protection Authority. 

  • Penalties 

The Draft Bill 2022 does not provide for any criminal penalties, but a financial penalty of up to INR 500 crores for each instance of non-compliance, depending on various factors. Further, the Draft Bill 2022 does not provide for compensating data principals whose personal data has been compromised, however prescribes a penalty of up to INR 10,000 for registering a false complaint of furnishing false particulars or suppressing any material information. 

  • Grievance Redressal  

A data principal has now been provided with a right to grievance redressal with a data fiduciary. A complaint can also be registered with the Board in the event no satisfactory response is received from the data fiduciary. 

  • Duties of Data Principal and Data Fiduciary

Duties of a data principal have been introduced in addition to all the rights provided under the 2019 and 2021 Bills. These inter alia include compliance with all applicable laws, providing all material information while applying for any document and furnishing only such information verifiably authentic while exercising the right to correction or erasure. Further, the data fiduciary too has obligations like notifying the Board and each affected data principal about data breaches.

  • Significant Data Fiduciary and Data Protection Officer

The role of a significant data fiduciary is unchanged from that of the earlier Bills. These fiduciaries are required to comply with additional obligations like appointing a Data Protection Officer and Independent Data Auditor, and undertaking data protection impact assessments. 

Data Protection Officer is a person responsible to the board of directors / governing body of the Significant Data Fiduciary and is also the point of contact for the grievance redressal mechanism set up by the Significant Data Fiduciary. 

  • Exemptions

State instrumentalities, in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, and maintenance of public order, are exempted from compliance. 

India’s time to take the leap!

The 2019 and 2021 Bills were bulky and hard to implement. The Draft Bill 2022 also has some flaws like constitutional consistency and ability to work alongside global privacy laws, and has taken a slightly doctrinal approach which creates a hindrance for it to be a full-proof law. 

However, the Draft Bill 2022 is more simplified and has better enforceability than the earlier Bills. There is a hope that there will be a huge reduction in privacy breach, leakage of data and related offences in the country once this law comes into force. The implementation of this law will give the digital business a new outlook towards data processing. The trust among people in online platforms and digitalization will increase and this will further lead to connecting better with the rest of the world.

Many nations in the world have had data protection laws for a long time and it is now India’s time to take the leap!