Does Contract Drafting Merit Its Own Law-School Course?

For the first time since 2005, I won’t be teaching in the fall, as a member of the adjunct faculty, a law-school course in contract drafting.

In one respect, that’s a relief, as I’ll be able to continue my globetrotting unhindered. Abu Dhabi, here we come!

But at some point I’d like to resume teaching. Not because I’m the second coming of Mr. Chips, but simply because I think it important that I stick my face in front of all relevant constituencies.

With that in mind, I’ve exchanged emails with two top law schools, and they’ve told me that they prefer to incorporate contract drafting into substantive transactional courses—think “deals” courses.

I’d been prepared to discuss student evaluations, or what specifically I’d propose to teach, but I hadn’t expected to encounter resistance to the very idea of teaching contract drafting as a stand-alone course.

I don’t pretend to have any grasp of the sort of juggling involved in designing a law-school curriculum. So I wouldn’t dare to say that either of these schools is somehow mistaken. But I thought I’d permit myself to make my case, and see what you out there think.

The idea of teaching contract drafting as part of a “deals” course sounds plausible and efficient, but I don’t think that approach will result in students becoming informed consumers of contract language. Here’s why:

  • Acquiring the basics of contract language involves way too much to be able to cover it in a “deals” course. As I said to one school, that’s like expecting someone to learn how to write by taking a course on Shakespeare, or existentialism.
  • BigLaw deal contracts aren’t a great vehicle for learning how to draft. They’re too unwieldy—they’re bulky and contain basically the same verbiage as countless other deal contracts.
  • I think I’ve amply demonstrated, most recently in this post about the contract providing for Jeff Bezos to acquire the Washington Post, that the contract-drafting culture in the big-deal world is dysfunctional. I don’t think a law school could assume that anyone with real-world experience who teaches their “deals” course is free of that dysfunction.

But saying that teaching contract drafting in a “deals” course won’t work isn’t the same as saying that it’s worthy of a course unto itself.

I’d have thought that the idea has an inherent plausibility. To warrant making a topic the focus of a law-school course, it has to offer sufficient substance, and there has to be demand for it. I think that contract drafting passes both those tests. As regards substance, I didn’t have any problem writing a 500-page book on the topic, and I keep accumulating more material. As regards demand, sales of MSCD have been robust since it was first published in 2004; that shows that there’s a real appetite for a coherent approach to contract language. And the increasing demand for my seminars worldwide suggests the same thing.

Furthermore, law schools have long taught litigation writing as a stand-alone course, rather than teaching it as part of a course on, say, class actions.

But let’s get more specific as regards what a course in contract drafting might look like. Even though I won’t be teaching, I prepared a syllabus and course description as a way of thinking through how I’d teach a course, after having learned some law-school facts of life. Go here for a PDF of my proposed syllabus. And here’s the course description:

The aim of this course is to teach students how to draft contracts that are clear and effective; how to spot issues and address them in a contract; and how to handle the contract process. We will consider the shortcomings in traditional contract drafting and how they can be fixed.

Contract language is a limited and stylized kind of writing, and mastering it can be demanding. This course will introduce topics gradually, with an emphasis on working through practical examples. Students will put into practice the guidelines contained in Ken Adams’s book A Manual of Style for Contract Drafting (3d ed. 2013), a reference work that’s used throughout the legal profession.

Students will draft contracts expressing the terms of mock transactions. They will also conduct a mock review of a contract. The final assignment will have students work on a contract for a not-for-profit organization. Organizations that have participated in previous such projects with Adams include The Breast Cancer Research Foundation, The World Wildlife Fund, Inc., and Big Brothers Big Sisters of America.

The grade for the course will be based 60% on written assignments, 40% on class participation.

The focus of this course is not what to say in a contract, but how to say clearly and effectively whatever you want to say. This course will provide an invaluable foundation for transactional work, whatever the specialty.

Again, I might have tunnel vision—I might not have sufficient perspective to say whether it would be a worthwhile use of limited resources to teach contract drafting as a stand-alone course. That’s why I’d like to hear what you think.

Posted in Teaching | 27 Comments

  • Paul Weddle

    I agree that a contracts drafting course makes eminently good sense for any law school student contemplating a career as a transactional lawyer, and I find it shameful that law schools fail to provide such training. Law schools find it possible to offer opportunities for drafting appellate briefs, and for preparing and presenting civil (and sometimes criminal) cases, but seem to assume that exposure to snippets of contract language in a first-year Contracts class, or to the awful product of mega-deal negotiations such as you mentioned, will suffice to somehow prepare a new lawyer for one of the primary tasks she will have to perform after law school – drafting a contract that states, in clear and precise prose, the deal her client has agreed to.

    • http://www.adamsdrafting.com/ Ken Adams

      Thank you for reminding me of something that I had intended to mention: the contrast with how law schools teach litigation writing.

    • Kimberly Boswell

      As a student of Mr. Weddle, a long-time reader of Mr. Adams, and now an attorney responsible for contract drafting, I support your stand on having a contract drafting course as a regular part of any law school curriculum. I found the education I received in my contract drafting course to be immensely helpful as I have ventured into in-house work as a contract attorney. Being able to draft a contract or to re-craft a contract I receive, making it legally sound and acceptable to my customer, would not have been as easy had I not taken the contract drafting course at my law school. Kudos to those schools which offer such classes, and shame on those that fail to recognize the importance of the subject. Contract drafting is indeed important.

  • Pat Brooks

    Anyone who hopes to be an inhouse attorney absolutely must be able to draft clear and complete contracts, analyze contract language drafted by clients and vendors and be able to articulate why a particular provision “as drafted” is not acceptable. Even retainer letters from outside counsel sometimes need tweaking to reflect reality rather than boilerplate.
    “Legal writing” is essentially contract drafting for the majority of inhouse lawyers. Let’s help the next generation of attorneys hit the ground running and teach them how to do it!

  • skg

    I think a stand-alone contract drafting course would 1) be incredibly useful and 2) make more sense than incorporating it into a “deals” course. As you point out, those contracts are poorly suited to teaching the nuts and bolts of drafting. In addition, a deals course will be tied to a particular area of the law, which means the lessons may not be as broadly applicable – M&A issue spotting is different from issue spotting in, for example, a separation agreement dealing with child custody arrangements.

    But more importantly, as a quasi-recent law school graduate (2008), my experience has been that practice components are generally given short shrift in substantive law classes. There is plenty of material to cover already, so the practice components tended to consist of homework assignments with relatively little actual teaching time associated with them.

    However, I think practice oriented pedagogy tends to get short shrift anyway. The law school I went to had some extremely well regarded clinical programs that the administration rarely ever touted (and the clinical professors were significantly less well paid than their traditional academic brethren, despite having arguably more demanding jobs). On the student side, practice classes were generally viewed as being less labor intensive and less harsh in their grading.

    Another way to do it could be to integrate it into the first-year legal writing class (and bump up the importance of that class). I think the way my school did it is fairly standard – it was a combined research and writing course where you would receive a hypothetical fact pattern, do research around the relevant areas of the law and then draft the memorandum or brief addressing the questions raised. I think adding a contract drafting component to the objective memorandum and advocacy brief segments would work well. I think you could probably even integrate the issue spotting with the research component fairly productively by having the hypothetical client’s needs touch on an area of the law where a delicate touch will be needed to ensure the provision is enforceable (for example, non-competition agreements).

  • James Trimble

    I don’t think you should make assumptions about the willingness of law schools to include a contract drafting class in their curriculum based on the responses of “two top law schools.” My sense is that many of the non-elite schools have a greater emphasis on practical training and would be more receptive to the type of course you are suggesting. Of course, the graduates of those schools are less likely to end up at the law firms that handle the big M&A deals.

    • http://www.adamsdrafting.com/ Ken Adams

      I made a point of not suggesting that the views of those two schools is somehow representative. I actually have little idea how many schools teach contract drafting, and how.

  • AWrightBurkeMPhil

    A few quick thoughts:

    1/ It’s been so long since law school that I forget most of it, but I have been thinking about it lately since my legal writing teacher died last week. She was a beauty whose assignments were miserably typed. She said she never learned to type because she didn’t want the ability to type to make it any likelier that she’d be nudged into a “woman’s job.” She went on to become, among other things, corporation counsel for a major city near our state capital. R.I.P.

    2/ I am uncertain how capable of any kind of writing law students are today. Can I assume that today’s U.S. law students can write anything, let alone contract prose? Maybe they are a much-filtered elite who have been well-trained in grammar, vocabulary, and syntax. My point is that it’s hard to say what the legal curriculum should contain without knowing how prepared the students are. Ken, you should opine on this. You’ve been in the arena for seven or eight years.

    3/ Maybe contract courses can be tweaked in a writing direction, supplementing case analysis with writing exercises in the vein of your case-related questions, Ken: not “was this case decided correctly,” but “how could the drafters have avoided the dispute that gave rise to this litigation?”

    4/ Many young lawyers complain that law school didn’t prepare them for the “real world” of legal practice, and they wish that it had. I have always taken this criticism cum grano salis (are we allowed to use Latin anymore?) because it often boils down to “I think law school should have prepared me for every aspect of the exact job I wound up in upon graduation, so that I have no learning curve and spend no time in my discomfort zone.” Against that attitude, I set my father’s saying, “The purpose of school through college is to give you the tools with which to begin your education.” And the words of my late beloved contracts teacher as he began a Uniform Commercial Code course. “A number of you have asked what you can expect to gain from this course. A fair question. If you apply yourself with a reasonable degree of diligence, at the end of the course you can expect to be able to work your way around the Code with some degree of fluency. That may not sound like much, but it’s all there is.” So maybe contract drafting should be an elective for the subset of law school graduates who want or expect to be dealing with contracts in a major way.

    5/ Something tells me, though, that contract drafting is so basic that some amount of it should be baked into the basic contracts course, either as one or more “units” within the overall course, or with the whole course taught through a drafting “lens” (see paragraph 3 above).

    • http://www.adamsdrafting.com/ Ken Adams

      Regarding your point 2, I didn’t trouble myself unduly with my students’ prose style. My task was to teach them a new kind of writing, one that’s very limited and stylized. It makes fewer demands on one’s prose style than does creative writing. For the same reason, I wasn’t alarmed at the number of non-native speakers who registered for my classes.

      Regarding your point 3, the sort of course you have in mind would be very interesting, but I think it would be too much.

  • Vance_Koven

    I actually think that comparing contract drafting to litigation drafting for purposes of assessing the desirability of having a course on it is a bit off the mark. What it really parallels is trial practice , which even The World’s Greatest University teaches. You do a trial by standing up and arguing points and examining witnesses; you do a contract by drafting it. And no law school would think of incorporating trial practice into, say, a class on torts.

    • Chris Lemens

      Vance has hit the nail on the head.
      Chris

  • Mark Anderson

    Teaching contract drafting to law students is, of course, useful, but I suspect it may be difficult to persuade some law schools of its importance for a number of reasons. Not sure how much these points translate to the US experience, but my impression in the UK is that the reasons may include:

    (1) it isn’t a traditional legal subject
    (2) the academic lawyers who run law schools don’t understand or value it

    (3) teachers tend to be practitioners, who may be viewed as second class citizens in a university environment

    Therefore one needs to find someone influential in the academic world who is prepared to “stick their neck out” and champion it.

    There is also the difficulty of teaching a practitioner subject to students who may have no experience other than passing exams, but your course outline suggests you have found a good way of dealing with that issue.

  • http://www.adamsdrafting.com/ Ken Adams

    FYI, go to http://bit.ly/14Nrui6 for Jeremy Telman’s thoughts on where contract drafting fits in the law-school curriculum.

  • Bradley B. Clark

    Ken,

    I believe that drafting should be taught as a standalone elective in the third year of law school and the textbook should be MSCD3.

    I do, however, think that your cause is served better by not teaching contract drafting at the law school level (for one, law graduates are only going to be dissuaded by the curmudgeons at their respective law firms who resist change or are adverse to perceived risk).

    Rather, I believe you are exponentially more likely to ignite a draft clearer contracts movement by teaching young lawyers how to draft better contracts. Teaching physical seminars is one way to throw sparks at the kindling but it’s not enough. I believe you should strongly consider teaching an online class with actual assignments that teach drafting skills. Offering CLE credit is an obvious must but I think there is an incentive even better than CLE.

    If one wants to learn traditional wing chun, he will seek out a sifu who was taught wing chun by a disciple of Ip Man. Those who learned wing chun from a disciple of Ip Man (and who want to make money teaching wing chun to others) make sure to market themselves as direct descendants of Ip Man.

    In a similar way, if one has learned to draft clearer contracts from Sifu Adams, he will want the ability to market himself as having done so. I don’t think this idea is too far fetched.

    Many of my plaintiff lawyer friends market themselves as members of the million dollar club. Other lawyer friends market their NITA certification or Harvard negotiating certification. Why shouldn’t I be able to obtain MSCD certification and market it on my website? That’s worth paying for. Then, the disciples of Sifu Adams will, over time, have the same impact on drafting clearer contracts that Ip Man’s disciples had on the worldwide growth of wing chun.

    Bradley

    • http://www.adamsdrafting.com/ Ken Adams

      I’ve pondered the idea of certification; see http://www.adamsdrafting.com/certification-in-contract-drafting/. But I’ve thought that some other organization would have to be involved too, and so far no one has bitten.

      And I bow to your superior martial-arts knowledge!

      • Bradley B. Clark

        Why do you feel like you would “have to do it in partnership with a suitable trade group…[like] IACCM”? MSCD is your brand.

        You could offer different levels of certification like six sigma and project management. Make it mean something though. Don’t allow someone to take one course and call himself “MSCD certified.” Having a black belt in project management isn’t easily attainable. It takes a real commitment. And so should MSCD certification. Ip Man didn’t make everyone a Bruce Lee.

        • http://www.adamsdrafting.com/ Ken Adams

          OK, I’ll mull this over and we can discuss it further at some point.

  • Annette

    I did take a contract drafting class in law school, and it continues to be one of the most valuable classes I’ve ever taken. It was useful to me both when I was a deal attorney (commercial finance and real estate) and now that I’m in-house. Based on some of the interns I’ve had, they would have benefitted quite a bit from a transactional drafting class too.

  • Uninterested Observer

    The best way to learn to write contracts probably is a deal course, i.e., an uncomplicated deal with multiple documents to show how the parts go together. I’m not sure when you would teach it, though. Unless law schools change the way they teach from a litigation-based case method, then a contracts drafting class taught in year 1 will be lost by year 3. But maybe schools are moving to a less case method model anyway, and maybe that’s not really a concern anymore.

  • Mike Cremata

    I can tell you if it were taught anywhere near me I would audit that class in a second! You feel like spending a semester in beautiful San Diego? I could talk to some people at USD… :)

  • George W. Kuney

    A number of law schools offer contract drafting as a stand alone course and have for many, many years. At The University of Tennessee College of Law, we offer a two credit hour course of approximately 10 to 14 sections of approximately 12 students each. The course is a prerequisite to our more advanced deals/drafting courses such as Commercial Leasing, M&A, Transactional Tax Planning, Construction Law, and Representing Enterprises. We have been offering this class for over 15 years, 13 in its current form.

    We are not alone. I am aware of Emory teaching contract drafting in a program started by Tina Stark, one of the leading figures in the Contract Drafting teaching field. There are many others.

    The reasons for doing it this way are as you state, the need for a prerequisite course to cover basic drafting, the same way there are generally first year courses on memo and brief drafting. You need a place to get the essentials in place before turning to drafting at a high level, in a specific legal and business context.

    George Kuney
    UT College of Law

    • joanheminway

      So glad you mentioned this, George. I think it’s important for folks to know that many law schools do offer a contract drafting course to their students–and also teach drafting in doctrinal and experiential courses. Of course, litigators (as well as transactional lawyers) should be skilled contract drafting so they can draft valid, binding, and enforceable settlement agreements (among other things), as I mentioned in the contract drafting CLE that I taught for the Tennessee Bar Association yesterday.

  • Pingback: Teaching contract drafting | The Walters Way

  • http://www.adamsdrafting.com/ Ken Adams

    FYI, for Adrian Walters’s take on this issue, go to http://thewaltersway.wordpress.com/2013/08/21/teaching-contract-drafting/

  • AWrightBurkeMPhil

    More reflection: any curriculum aims to teach the basics, then teach advanced material. You can’t teach everything, so after the basics, electives are offered by way of specialization, so a student runs out of school years before he runs out of things to study.

    So I would ask Ken to sharpen his question: is he asking whether contract drafting should be offered as an advanced elective (that makes an affirmative answer easy) or is he asking whether contract drafting is so basic to the study of law that it should be a mandatory basic course like property, contracts, and torts (that makes the question harder)?

    Perhaps another way to ask the same thing is whether a law student with a really good command of, say, Standard English, good writing ability generally, and a high level of semantic acuity can reasonably say, “I’ll study the stylized language of contract drafting if I need it.” Or is contract drafting so basic to law that such a statement would be as foolish as saying, “I’ll study the concepts of duty and fee simple absolute and proximate cause when the occasion arises.”

    • http://www.adamsdrafting.com/ Ken Adams

      I would ask different questions: Should contract drafting be offered as an elective, or should it be offered as an alternative to the standard first-year legal-writing course?

      The latter option has its attractions, but perhaps even transactional lawyers should be able to do basic legal research. Treating contract drafting as an elective seems a prudent first step in assessing where it fits in the curriculum.

  • Observer

    What about offering a course on coursera.org + administering an in-course survey to see in which school there is a need/interest in the course …might be very helpful…