As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has a law school, every professor of law is in the law school.

We should reconsider this model. A different approach is for universities to have both a professional law school and an academic law department.

Under this approach, the professional school would be staffed by instructors whose job is to teach legal skills to lawyers-in-training. Instructors would not be expected to write books or articles. Instead, they would bring expertise in teaching practical skills.

Mazzone’s proposal has come in for some snark at the hands of Legal Blog Watch and Above the Law. For the heck of it, here’s my take:

Far from being unique to law schools, the tension between teaching and research is endemic in higher education. Given that it’s something that universities wrestle with too, I find simplistic Mazzone’s notion of grafting onto an amenable university the theoretical side of law school.

And creating a wall between theory and practice would likely encourage the less-desirable traits in each sphere:

As regards theory, topics that are the subject of faculty research have some grounding, however remote, in how law operates in society. Absolving research academics from routinely having to deal with ugly practical realities would likely render the fruit of their research even more sterile than it currently is.

As regards practice, leaving the training side of law school to “instructors” would institutionalize the two-cultures divide that you already see in law schools. (I’m a member of Penn Law’s adjunct faculty and I teach a “practical” topic, so I must be doubly ignoble.) Leaving training to second-class-citizen instructors would perhaps make it more likely that a given training program merely recycles the stale conventional wisdom.

So research and training would both benefit from cross-pollination between theory’s broader perspective and practice’s focus on expediency.

A related December 2009 blog post: Practitioners and Scholarship: Oil and Water?

The indefatigable Lisa Solomon told me about this article in the legal-writing journal Perspectives. It’s by Sue Payne, a clinical assistant professor of law at Northwestern University School of Law, and it describes how in two 90-minute classes she teaches contract drafting to first-year legal-writing students. If you’re in charge of a legal-writing program and are contemplating adjusting it to fit the let’s-get-practical tenor of the times, you’d do well to read this article.

But absolutist that I am, I can’t say that I’m itching to teach such a class. And if anyone who wanted to were able to take a rigorous upper-level contract-drafting seminar, shoehorning three hours of contract drafting into the first-year legal writing class might be an unnecessary distraction.

To illustrate my point, let me start by observing that most clients do not hire Big Law (or lawyers at any firm for any complex transactional matters) to perform routine legal services that can be outsourced or otherwise “unbundled.”  I think unbundled legal services have an important role to play in the legal profession, particularly with respect to the underserved and underrepresented. … Nevertheless, I do not think that unbundling serves the best interests of sophisticated clients with complex legal needs. In complex transactional matters, neither the client nor the lawyer can anticipate fully the relevant issues, the direction of negotiations or even the parties who might show up at the negotiating table. Clients in those matters should be hiring lawyers who are great thinkers, problem-solvers and technicians—i.e., lawyers who can find or develop solutions beyond those in form books and treatises. 

That is an example of how transactional lawyers add value. It is that type of value that Big Law should showcase and for which clients should be willing to pay. Law schools, in turn, need to consider that legal product in curriculum choices and transactional offerings. Those offerings need to balance theory, doctrine and skills and include interdisciplinary and global components; easier said than done. … Also, to the extent that Big Law wants to or does provide commodity-type services, it needs to adjust its model for delivering and pricing those legal products.

But even in complex transactions, the bulk of legal services performed by big law firms are routine. For every hour spent by senior lawyers devising strategy and assisting in negotiations, junior associates devote many more to due diligence and churning out documents. A good portion of those less-exalted services could in effect be outsourced by commoditizing the drafting process, a topic touched on in yesterday’s post. A client should be able to secure the benefit of sophisticated expertise—conceivably at a premium price—without also having to pay for old-fashioned drudgery.

And I don’t think it’s realistic to look to the most sophisticated services provided by law firms when devising the curriculum of the future. The ability to provide that sort of expertise comes after years of experience and is built on a strong foundation. Given the limit to what law schools can teach in three years, I suggest that law schools restrict themselves to helping to establish that foundation.

As for who should teach transactional skills, I wouldn’t rely on law firms to teach the fundamentals of contract drafting in a consistent and thorough manner—they’re too driven by expediency, by the need to get the deal done. But as Joan Heminway, professor at the University of Tennessee College of Law, noted in another post in the series (here), teaching both doctrinal courses and skills courses can require some uncomfortable compromises. In that regard, I offer two suggestions:

First, make transactional drafting a first-year course and allow students to choose whether they want to satisfy their legal-writing requirement by writing research memos and briefs or by drafting contracts and, perhaps, entity organizational documents. The traditional bias in favor of litigation-based legal writing is an accident of history.

Second, make sure that your teaching of contract drafting is as effective as possible. To my mind, that means establishing a rigorous syllabus that limits the odds of a course going off the rails because it’s taught by a practitioner intent on passing on debunked conventional wisdom, or by a teacher of litigation-based legal writing with only a precarious understanding of contracts.

Once I’ve met my more immediate goals, I have in mind preparing, if there’s sufficient interest, an online syllabus keyed to MSCD. The materials would include a changing roster of assignments, including memos to students and my version of each assignment, with annotations.

[Updated 12:30 EDT, April 20, 2010: With my first suggestion, I demonstrated that it’s been a long time since my first-year legal-writing class. Here’s what the director of legal writing at a U.S. law school had to say in an email to me:

I generally like your post about skills training, but you won’t be surprised to hear that I disagree with your idea to give students a choice between writing memos and briefs and writing transactional documents. I do think training in transactional writing should be required in both the first year and the upper level, but the 1L Legal Writing course is not just a course in writing—it’s a course in legal analysis (how to use authority, especially case law, to formulate rules of law and analogical reasoning), legal argumentation (how to structure and support a legal argument in a way that legal readers will expect and accept—both in writing and orally), and legal research. 

Drafting transactional documents might use some of those skills, but memos and briefs use them all.  They also give the students experience in writing for different audiences and in writing both objectively and persuasively. We do teach the format of the documents and citation form, but those lessons are really secondary.

So maybe it wasn’t such a great suggestion … . Others are better placed than I to know what would be best, shoehorning transactional drafting into the first-year curriculum or ensuring that those students who want to take a drafting course can take it as an upper-level course. (Or some combination of both approaches, as suggested by my correspondent.) All I know is that given how many students at Penn Law end up doing deals at law firms, it seems unfortunate that only 20 of them a year—half of them LLMs—get to take my course.)

For the fall 2010 redrafting project, I’d like to work once more with a not-for-profit organization, this time one that works on matters relating to the environment or wildlife. If your organization might be interested in having my students and me redraft one of your contracts, by all means get in touch.

I suspect that a large majority of analytical materials relating to transactional work are prepared by practitioners. And of those materials, I suspect that most are prepared as part of a bar association initiative or for some other CLE-based purpose.

By contrast, academia’s contribution has been entirely modest. The interview with Steven Davidoff, aka The New York Times’s “Deal Professor,” at the recent meeting of the Mergers and Acquisitions Committee of the ABA Section of Business Law reminded me of one reason why: Steven noted that there are still relatively few corporate specialists at law schools. And then there’s the trifling matter of the sneering disdain that many faculty at “elite” law schools apparently have for the notion of practicality.

“So what?,” I hear you say.

In this February 2009 blog post I described how I morphed from regular deal lawyer to contract-drafting guy. The change came as a great relief. If doing deals is like working in a high-pressure restaurant kitchen, as a matter of temperament I’d be better suited to writing cookbooks or studying kitchen ergonomics. What I do is sufficiently different from dealmaking that I have a hard time imagining that many people could be great at both kinds of activities.

Another way in which I differ from your average practitioner is that I have lots of time for rumination, false starts, dead ends, and rough drafts. If you don’t have the luxury of time to fruitfully waste, or if you don’t make that time, you’re less likely to come up with anything innovative.

If as a general matter practitioners are driven by expediency and are pressed for time, it would seem unpromising to leave to them the task of preparing the analytical underpinnings of transactional practice. With some notable exceptions, such as Kling and Nugent’s Negotiated Acquisitions of Companies, Subsidiaries and Divisions, most practitioner-prepared materials that I consult are, at best, a good starting point for a given analysis. And they tend to recycle the conventional wisdom.

But I’m hardly suggesting that rarefied academe—more PhDs!—is better placed to produce analytical materials for transactional work. Instead, I’m simply suggesting that the odds are against reliable, insightful, and innovative materials being produced as a sideline, or by “volunteers.” In this regard, I recall Glenn West remarking to me that it took him a year to write each of his two recent articles.

So we’d be better off if more transactional materials were produced by people with the necessary aptitude and the willingness to invest the time required to produce works of lasting value. We could do with more scholarship, and if you can deliver it, who cares what hat you wear.

I don’t have a transcript of last week’s discussion, but I can offer you something new from the archives. Last year’s Penn Law conference call was with Larry Bell, partner with the Corporate and Securities Practice Group of Benesch in Cleveland, Ohio; Jim Brashear, a partner with Haynes and Boone in Dallas, Texas; and Howard Dicker, a partner in the corporate department of Weil, Gotshal & Manges LLP in New York. After a legal periodical expressed interest, I put together an article based on the transcript of our discussion, but it was too for anyone to publish it, so I offer it to you now, dear reader: click here to go to a pdf copy.

My thanks go to those who generously took the time to participate in a panel discussion. It’s an important part of the course.

Honestly, it’s a question of whether the conference is worth the cost, in time and money. Many associates think it is not. Given the small number of instances in which the issues that you raise (however interesting to me and to other readers of this blog) actually have material consequence, many associates would rather spend the money to attend a conference that deals with substantive legal issues, where they can also interact with folks in their own industry.

Now that I think of it, I suspect Damon’s right, that many associates are inclined to consign contract drafting to the ghetto of “squishy” CLE subjects—those that don’t cut it in the Darwinian world of the law-firm transactional lawyer.

Disputes Caused by Suboptimal Drafting

But I’d like to take issue with Damon’s assessment. First, there’s his reference to the “small number of instances” in which use of suboptimal contract language has mattered. I’ve occasionally fantasized about doing empirical research into how many lawsuits have their roots in defective drafting. Until such time as I get around to doing that research—I suspect I never will—I’ll have to make do with anecdotal evidence.

Compared with the ceaseless torrent of transactions taking place all the time, those instances of problematic drafting that one hears about would seem to represent a drop in the bucket. But for every such instance, it’s safe to assume that many others fly below the radar. For example, of those legal opinions I encounter that involve confusion as to what a particular contract provision means, only a small minority can be turned into an interesting blog post illustrating some drafting usage or other. And for each dispute that is enshrined in a legal opinion, it’s safe to say there are untold others that are settled, and yet others where a disgruntled contract party wasn’t willing or able to put up a fight.

So I don’t think confusion over what a contract is trying to say occurs in only a small number instances. Instead, I think it’s endemic.

Ineffeciencies Caused by Suboptimal Drafting

And bear in mind that the significance of suboptimal contract language isn’t limited to its role in causing contract disputes. At law firms and companies it’s also a source of gross inefficiency in drafting and negotiating contracts, as making sense of the murk that is traditional contract language wastes everyone’s time at every step in the process. Any contract that I redraft ends with about 20% fewer words and can be read in about half the time.

So in terms of both risks and inefficiencies, the costs of suboptimal drafting are very real and very significant, and in a way that is more immediate than, say, the costs attributable to inadequacies in other kinds of writing.

You Don’t Know What You Don’t Know

Most lawyers think they’re good writers, but you become a good writer only by having your work routinely subjected to withering scrutiny, whether by you or by others. I suspect that any associates who find something fuddy-duddy in the notion of improving your contract drafting haven’t had their work subjected to that sort of scrunity.

In that regard, you might find of interest my recent video interview with the ABA Journal. I suggest you skip the talking-head stuff and go to 2:44, where I start my annotated PowerPoint dissection of two extracts from the merger agreement providing for Oracle’s acquisition of Sun Microsystems. As a piece of drafting, that contract is entirely representative of the mainstream yet is, um, very problematic. But those who drafted it probably think it smells like roses.

Until such time as you take the trouble to expose yourself to the difference between mainstream contract drafting and the clearer alternative, you’re not going to be in a position to assess how significant that difference is.

But that said, it’s a big CLE world out there, with any number of topics to choose from. My observations go to the absolute merits of my topic, not its relative merits.

So we’re going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into with its corporate alliance partners.

I’m delighted that my class and I will be able to render this modest service to BCRF. I became aware of BCRF through my wife Joanne, who put together a BCRF-themed event for the New York Racing Association. I was impressed by how dynamic and efficient BCRF is. Since its inception, BCRF has raised over $250 million—$33 million in fiscal year 2008/09 alone —to support breast-cancer research at medical institutions around the world. BCRF support for promising yet untried ideas is crucial, given the dearth of government funding. And it manages its finances exceptionally well, with at least 85% of all funds raised by BCRF going to breast cancer research grants and awareness programs.

Thinking about having your company become a BCRF corporate alliance partner? Click here to find out how, and click here for a list of their current corporate alliance partners. How’s this for an incentive: by December, the trademark license agreement that you’d have to sign to become a corporate alliance partner will be a thing of beauty …

It was posted on the Marquette University Law School faculty blog and was written by a part-time student by the name of Tiffany. Besides being a student, she holds down a job—she’s responsible for maintaining the templates of her company’s commercial contracts and preparing deal documents based on those templates.

In her post, Tiffany describes how that responsibility fell to her; says that the work is painstaking but has its satisfactions; wonders whether she runs the risk of making a mistake that could lead to a lawsuit; and finally asks whether anyone has any suggestions how she might improve her contract-drafting skills.

Here’s how I’d respond:

Tiffany: For me, the key passage in your post is this one:

And, I would be lying if I said working on contract language is a creative or imaginative process, because it is not. Really, from my own experiences, day-to-day transactional contracts are just boilerplate indemnity language and seemingly ever changing “standard” business terms. Maybe that’s why contract drafting is usually left to a contract administrator or a paralegal . . . or a Marketing Coordinator who goes to law school in her spare time.

If your responsibilities consist of merely changing the numbers and product names in an endless stream of otherwise identical documents, then sure, that task could be delegated. But if that were all there was to it, you probably wouldn’t have asked for advice.

Junior lawyers, as well as many senior ones, are way too deferential when it comes to contract language. They assume that what’s in a contract is holy writ, and they limit their input to tweaking the deal terms and making sure everything is internally consistent.

I suggest that instead you approach contract language critically. When reading a contract, ask yourself what everything means. If you don’t understand a given provision, research the issue, and don’t be satisfied with the conventional wisdom. If something seems like gobbledygook, it probably is—consider what the alternatives are.

I’m reluctant to say it, but if you want to get to grips with contract language, you’re going to have to consult my book, A Manual of Style for Contract Drafting. I know that seems desperately self-serving, but I’m confident that others would give you the same advice.

What would you accomplish with a critical approach to contract language? You’d probably feel generally more confident in your work. But more to the point, I suspect that you would spot all sorts of ways to make your company’s templates much clearer and more consise—that’s nothing to sneeze at when you’re dealing with templates that are used countless times. You could make a real difference.

If you have any suggestions for Tiffany, by all means post them here.

I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their new programs as an occasion to rethink their processes. Here’s how it might play out in the realm of training contract drafting:

If all you’re interested in is a goosed version of your normal training, you’d dragoon a partner—perhaps someone who otherwise would be spending much of their day gazing out the window—to put together a training program. Odds are it would consist of a mish-mash of conventional drafting wisdom, with most of it being devoted to the structure of M&A contracts. What would be conspicuously absent is a coherent overview of the basics of contract language.

The lightweight nature of the training would in effect acknowledge that centralized standards are less important than the preferences of individual partners. The apprentices would soon realize that the work would continue to be done the old fashioned way—by regurgiating, on a wing and a prayer, precedent contracts that not only are of questionable quality and relevance but also reflect inconsistent substance and drafting usages.

If you’re interested in a game-changing training program, the first thing you’d do is adopt a style guide for contract drafting. That’s something I discussed in this January 2009 blog post. Your only real choice would be to adopt MSCD by means of a short document laying out some explanatory guidelines. (Anything you try to prepare on your own would be impossibly skimpy.) The style guide should be as near to mandatory as is possible in a law firm.

Then you’d train your apprentices in drafting consistent with the style guide. And over the long term, you’d overhaul your templates to make them consistent with the style guide. To accomplish that, it would be a good idea if, at the same time as setting up your apprenticeship, you were to establish a role for practice-support lawyers. And you’d want to automate the drafting process, to the extent your workload permits it.

As to the odds of such an enlightened training program, I see no reason to be particularly upbeat, given the obstacles to change at law firms. (That’s someting I discussed in this June 2008 blog post.) But really, what’s mostly required is a change in attitude.