Last week I had the pleasure of doing a presentation at one of the offices of a national law firm. At 1.5 hours, it was the shortest presentation in my arsenal—“The Bad (and Good) News About Contract Drafting and the Contract Process.” In addition to the two dozen present in person, others were listening in from other offices.
While waiting for the presentation to start, I had the opportunity to chat with the firm’s professional-development coordinator—let’s call her Jane—about the challenges of arranging continuing legal education (CLE) for the firm’s associates. We then followed up by email. That discussion made me think about issues facing CLE generally, as well as issues relating to CLE for contract drafting in particular.
Here’s what Jane had to say regarding the first of those topics:
My biggest challenge is simply getting associates to show up. This isn’t a problem that’s unique to my firm, in that my counterparts at other law firms have the same problem. That’s why we haven’t asked you to do a longer session—we’ve found that they simply won’t come, or will leave halfway through. Even with shorter sessions, we have to keep reminding associates to attend, and we ask partners to emphasize how important it is for them to develop their understanding and keep abreast of developments. Attendance tends to be erratic; it’s disappointing when we have a meager turnout for a great speaker.
I’m aware of this problem. I told Jane that I had once been engaged by a mid-size law-firm to give a 4.5-hour “Drafting Clearer Contracts” seminar. The firm had purchased books, reserved a meeting room at a nearby club, and had ordered lunch—and not a single person showed up! It was surreal. I made small talk with the CLE coordinator, collected my check, and headed home.
A related issue is that a gaggle of junior associates usually makes for a torpid presentation, at least from the perspective of this presenter. The collective demeanor can range from passive to downright bovine.
Jane suggested that associates simply don’t feel that CLE is relevant to their day-to-day responsibilities. I can see how that would be.
When they first start out, law-firm associates—at least transactional associates—do assembly-line work that makes little demand of their analytical skills. As they become more experienced, the crucial challenge for associates is to demonstrate initiative by doing more than just what they’ve been assigned. You accomplish that by spotting issues instead of waiting for someone more senior to spot them, and by dealing with unexpected problems as they arise instead of waiting for someone more senior to give you your marching orders.
It might be that until associates start to make that transition, the substantive knowledge imparted in CLE is too much of an abstraction for them to pay much attention to CLE.
Contract-Drafting CLE in Particular
Contract-drafting CLE, or rather my version of it, presents an additional awkwardness.
Everything I do—books, blog posts, articles, seminars, teaching—conveys the same relentless message: Traditionalists, everything you know is wrong!
I have no reservations about burdening with that knowledge all in-house lawyers and contract managers and all third-year-plus law-firm lawyers—given their responsibilities, and given what’s at stake, it’s for the best that they be disabused of any illusions.
But that message has to be a hard one for junior associates to swallow. To quote Tennyson selectively, theirs not to reason why, theirs but to do. Telling them of the many shortcomings in the contracts they churn out can’t be very helpful, because as a matter of temperament and experience they’re not equipped to do anything about it. They’ve only just started learning about the stuff that doesn’t work, so the idea of fixing it must seem like a way to make life more complicated.
So I’ve decided that it’s not necessarily best to get ’em while they’re young.
By all means thrust in every novice’s hand a copy of A Manual of Style for Contract Drafting, so they gradually become familiar with what it has to offer. But in the future, I’ll suggest to my law-firm clients that for purposes of my CLE presentations, third-year associates and up are likely to be more receptive to my message than those who are more junior.
But there’s an important exception: if one or more partners are on hand, they could do what the associates aren’t equipped to do—engage with me in a way that turns the presentation from my reciting MSCD greatest hits into something more useful. Getting partners involved would help convey to the junior associates that clear, modern, and effective contract language isn’t some abstraction. It would also help them understand that although my guidelines are likely at odds with much that’s in the firm’s contracts, that’s simply an awkward fact of life rather than an existential threat.
Contemplating the effect of having partners involved made me think of my seminars for another law-firm customer. Every year I do a day-long “Drafting Clearer Contracts” seminar for all Dorsey & Whitney’s new associates as part of the training they provide their new associates. But the group isn’t limited to new associates; it includes some more senior lawyers, as well as a dozen or so clients. It’s an engaged group; I suspect that’s due to the mixture of people taking part, and I suspect that as a result the new associates get more out of it.
I ran my notions by Bryn Vaaler, Dorsey & Whitney’s professional services partner, whose duties include overseeing firm-wide professional development and training. Here’s what he had to say:
We include a day-long session with you in our New Lawyer Training because we want our new associates to get off on the right path and to take ownership of their contract drafting from day one. I agree that having some more experienced lawyers and corporate counsel in the session greatly enhances the effectiveness of the program for the new lawyers because it produces a dialog. It helps the new lawyers see that experienced contract drafters are serious about improving the current state of affairs and are very open to change and more uniform standards of drafting. Without that running commentary, I think there would be far less engagement by the newbies.
The Bigger Picture
There’s also a bigger issue—the fact that the traditional CLE presentation tends to be divorced from the work to which it relates. That’s the case whether you’re talking about in-person CLE or CLE over the computer or telephone; whether it’s live or recorded; and whether it’s in the form of the standard panel discussion or something different.
The answer isn’t to scrap all traditional CLE. I’m confident that my seminars have proven their worth. If they hadn’t, demand for my seminars wouldn’t keep increasing, to the extent that I’m spending most of next month traveling from seminar to seminar and am already scheduling seminars a year ahead.
Instead, CLE would ideally also be incorporated into the work process. For purposes of contract drafting, I’d do that by using document assembly to turn much contract drafting into a commodity task. Associates would draft contracts by consulting annotated questionnaires containing, as necessary, links to authorities that discuss the choice that the associate is faced with when answering a given question. That makes learning far more immediate.
And with a rigorous document-assembly initiative, you could ensure that what’s in your templates isn’t at odds with the notion of clear, modern, and effective contract language.
Such a system would require significant resources, but a cost-benefit analysis would allow you to determine whether document assembly makes economic sense. The biggest hurdle is actually cultural. It can be cleared once a law firm decides that being competitive and profitable are more important than evading the boogie man that is change.
[Added April 29, 2014: As noted in the comments, this analysis doesn't address two issues. First, I didn't discuss with "Jane" what effect associate workload has on their willingness to attend CLE sessions. She didn't mention that as a factor, and I too don't think it's the core issue. Instead, I think that what accounts for low attendance is what accounts for the tendency to passivity.
And second, I didn't ask her about the effect of CLE requirements. I can only assume that between online and in-person CLE, the associates at Jane's firm have no problem filling their quotas. The firm evidently feels that associates would benefit from more than the bare minimum.
I'm not about to bother Jane with these peripheral issues; perhaps I'll revisit them down the road.]