Study Unit 4 – eLearning RPK 214

TYPES OF PERSUASIVE WRITING:

LETTER OF DEMAND &

ARGUMENTS

PRIOR TO LITIGATIONBefore summons issued to prospective defendant: Issue LETTER OF DEMAND

o Defendant may pay / perform / negotiate Settle

o Defendant may raise valid defence

o Tactical advantage

o Placing defendant in mora (contracts without performance date)

o Where combined with an election

o Where unliquidated damages to be claimed

o Required by statute (Mandatory – Small Claims Court;

governmental organ)

LETTER OF DEMAND

REQUIREMENTS FOR LETTER OF DEMAND

Inform defendant:

What is being claimed

Basis for claim

Result of failure to meet claim in time

Claim stated accurately

Basis defined clearly & accurately

Be clear on what plaintiff intends doing if demands not met

CONTENTS OF LETTER OF DEMAND

Particulars of plaintiff’s lawyer….mandate

Name of plaintiff

Particulars of claim & basis of claim• Jurisdiction• State facts briefly & concisely• Draw conclusion in law from facts

What defendant is required to do & time for performance

• Make demand

Consequences if demand is not met

Nice to know information

MOST IMPORTANTLY…

A LETTER OF DEMAND MUST BE…

PERSUASIVE

“…will be vigorously pursued…”

“…would be vigorously defended…”

Unnecessary!

It is legal practitioner’s duty to pursue all actions vigorously

Spend time on pointing out why the claim / defence is good

WHEN DRAFTING A LETTER OF DEMAND…

ID OBJECTIVES

STRATEGY & TACTICS Elements of delict committed Formal tone throughout letter Provide sufficient information

- But not too much

REPOV

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Indicating your mandate Client’s name

Basis of claim – concise!

Demand

Consequences of inaction

Class exercise 6…

CHANCE FAVOURS ONLY THE PREPARED MIND

Louis Pasteur

HEADS OF ARGUMENTS

PREPARING FOR TRIAL

Heads of argument = Argument FOR your client

Contains SUMMARY of main points of counsel’s argument & authorities relied on.

Is NOT an thorough exposition of case…

SKELETON argument for closing arguments!

Summarizes evidence & requests particular order from court

HEADER – HEADS OF ARGUMENT

…charge…

STRUCTURE: HEADS OF ARGUMENT

THOUGH FIRAC-METHOD IS USED, DO NOT “FIRAC” THE HEADS!

Introduction (Background, charge, etc.)

Facts (Undisputed / disputed, etc.)

Identification of the issue

Application of law to facts• Keep issues separate; answer each question• Answer question of law• Argue persuasively! (NOT objectively)

Conclusion

Bibliography

STRUCTURE: HEADS OF ARGUMENT

Introduction (Background, charge, parties, etc.)

Facts (Undisputed / disputed, etc.) Advance facts favourable to your client!

Identification of the issue

Law & Application of law to facts• Keep issues separate; answer each question• Answer question of law• Argue persuasively! (NOT objectively)

Conclusion

Bibliography

END OF HEADS

FORMAT (SCA):

SCA RULE 10(3)

1. Argument: Clear, brief & without unnecessary elaboration

2. Points (paragraphs) should be numbered

3. No lengthy quotations from authorities

4. References to authorities specific pages / paragraphs!

5. List of authorities to be included

6. If relied on subordinate legislation, a copy of such legislation shall accompany heads of argument (??)

FORMAT:

SCA RULE 10(3)

1. Argument: Clear, brief & without unnecessary elaboration

2. Points (paragraphs) should be numbered

3. No lengthy quotations from authorities

4. References to authorities specific pages / paragraphs

5. List of authorities to be included, specifying those that will be referred to in the argument (??)

6. If relied on subordinate legislation, a copy of such legislation shall accompany heads of argument (??)

BE THOROUGH!!

CANNOT ARGUE WIDER THAN CONTENTS OF HEADS OF ARGUMENT

FORMAT OF HoA

EACH DIVISION OWN FORMAT

SCA OWN FORMAT (Rule 10(3))

REFERENCING...

Practice – in text

Exception – SCA