A New Article on Teaching Contract Drafting

I draw your attention to Preston M. Torbert, Contract Drafting: A Socratic Manifesto, 14 Scribes J. Legal Writing 93, 119 (2012) (PDF copy here). Preston is a retired practitioner who teaches and writes about contract drafting; he was kind enough to send me a copy of the article.

Apart from the introductory paragraph, the article is written entirely in questions. That might be a bit of gimmick, but it’s a neat one.

The gist of Preston’s article is that it’s time for law schools to give contract drafting the attention and resources it deserves. No kidding! Read the article; to whet your appetite, here are some extracts that caught my eye:

  • What’s the ratio of time spent by the average lawyer on litigation versus contracts? 1 to 10? 1 to 20? Wouldn’t most lawyers agree that contracts is the discipline most central to law practice?
  • In general, hasn’t a combination of the factors just noted led to an inordinate emphasis on appellate decisions as “the law,” an emphasis that has distorted legal scholarship and teaching and failed to prepare students for law practice?
  • Couldn’t attention to contract drafting play an important role in restoring a better balance to scholarship and teaching, as well as continuing legal education? Couldn’t it give the practicing bar the benefit of academia’s creative insights?
  • In legal education, hasn’t “thinking like a lawyer” become “more a talismanic justification for what is going on than an articulated educational program”? Shouldn’t “thinking like a lawyer” include “thinking like a lawyer drafting a contract” rather than merely “thinking like a judge interpreting a contract”?
  • If we argue that someone cannot draft a contract without understanding how a judge might interpret it, should we also recognize that someone cannot properly understand a judicial decision on a contract dispute without having drafted a contract?
  • Why is it that scholars and teachers have spent so much time studying judges’ decision-making, but have very rarely suggested how lawyers might influence judges’ decision-making in advance by drafting documents in a way that avoids judicial intervention in the first place?
  • More specifically, shouldn’t we recognize that drafting is not a routine, nuts-and-bolts task and that, if it were, it would long ago have been outsourced to India? On the contrary, isn’t contract drafting really problem-solving par excellence?
  • Can’t we avoid having new associates ““freeze like deer in [the] headlights” when asked by a partner to draft a contract?
  • [W]ouldn’t it be more appropriate to talk of “assembling” or “constructing” a contract rather than “drafting” one? Might not Charles Fox’s general term “working with contracts” be an even more accurate expression? How about “contracting”? Wouldn’t a more accurate term help to direct our attention away from the “creative writing” frame of mind toward the legal issues that a drafter faces in putting together a contract?
  • Couldn’t a law school arrange a “Contracts Program” that has two basic courses, one on the language of contracts, teaching how to recognize and eliminate ambiguity, and a second on the elements and structure of contracts, examining the basic legal issues common to all contracts and reviewing alternative solutions?

Preston wraps up the article with a plea for “a new doctrine of contract drafting.” I’d like to think that A Manual of Style for Contract Drafting is a step in that direction, in that it establishes guidelines for optimal contract language as an alternative to the current free-for-all.

Perhaps blame for neglect of contract drafting  lies as much with the legal profession as with law schools. The nature of traditional contract language suggests that for most practicing lawyers, notions of quality come a distant second to expediency. That being the case, why should law schools care too much about contract drafting?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

5 thoughts on “A New Article on Teaching Contract Drafting”

  1. Ken?
    Are rhetorical questions really Socratic teaching?

    Does rephrasing a delcarative statement to the minimum extent necessary to turn it into a question really make a difference?
    Isn’t this question just a gussied-up statement?
    Doesn’t mentally answering questions where none is really being asked bug the hell out of you?
    Don’t you find the format of this manifesto so distracting that you can’t finish reading it?
    Don’t you wish he had written this manifesto in normal prose?

  2. When I was on the law journal we were given papers to edit based on the rules in the Bluebook. We were each assigned a section of the paper to edit and we had to justify all edits based on the applicable BB rule. Perhaps contract drafting courses in law school should give students contracts and have them edit the contract based on MSCD and other resources (Garner’s Usages, Chicago Manual of Style, etc.). But then, why would any law school want to teach something so practical and useful?

  3. Ken said, “The nature of traditional contract language suggests that for most practicing lawyers, notions of quality come a distant second to expediency.

    -I agree. And there is little indication that that situation is about to change radically anytime soon-except for those of us who venture out on our own initiative.

    Essentially, most practicing lawyers are in a “catch-22”: (1) they have insufficient legal drafting knowledge at the micro-level to properly consider reworking a template into a more palatable form; and (2) even if they wanted to suddenly increase their legal drafting knowledge to do so, constant time constraints due to workload, rigidly enforced firm templates, and client demands greatly impede their opportunities to do so.

    In light of the above, I suspect that that is where Koncision could really be of use; however, it will take some time before Global 100 law firms swallow their pride and ditch traditional templates for a leaner, more user-friendly modern template. (PS: I work at a Global 100 law firm and possess the Red Book-A Manual On Legal Style, MSCD (2nd Edition), and Charles Fox’s “Working with Contracts”.)

    “That being the case, why should law schools care too much about contract drafting?”

    I presume that “law schools” here is referring to either an undergraduate or postgraduate academic institution and not the more vocational legal training institutions designed to prepare trainees for legal practice (?) If so, from my experience of both working in academia and the legal profession, (i) the course design, learning objectives, and exit competencies for an LL.B. or LL.M. do not include the need to teach such a vocational course, (ii) even if there is moderate interest in teaching such a course, there is an insufficient number of experienced drafters in faculty to be able to deliver such a course (for a brief discussion and developments in this area, please see, e.g., http://www.slaw.ca/2011/09/14/legal-research-and-writing-skills-in-law-school/)


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