Yesterday I saw the following tweet by Abigail Pathoff (aka @APathoff), legal-writing professor at Chapman University Fowler School of Law:
@WisconsinLaw prof Andrew Turner: Sure You Can! Teaching a 2L/3L Transactional Drafting Course without Experience as a Transactional Lawyer. pic.twitter.com/UYi9qT6HLL
— Abigail Patthoff (@APatthoff) November 30, 2018
Do you need transactional experience to teach contract drafting?
I’ll start by acknowledging that transactional experience probably isn’t enough. If that’s all an instructor has going for them, their drafting is likely fueled by whatever conventional wisdom they’ve picked up along the way. They’ll likely impart to students the usual mishmash dysfunction of traditional contract drafting, with a side helping of war stories.
At the core of a course in contract drafting should be the notion that you want students to become informed consumers of contract language. That requires comprehensive guidelines to the building blocks of contract language. For that, your choice is A Manual of Style for Contract Drafting or … A Manual of Style for Contract Drafting.
The good news there is that with some semantic acuity and application, anyone can become fluent in the building blocks of contract language, whatever their transactional experience (or lack of it).
But along with theory, it would be valuable to have practice—in other words, an understanding of how contract usages, and contract substance, plays out in the marketplace. It’s tough to acquire that without experience handling transactions or drafting actual contracts.
Down the road, I’d like to develop a syllabus and an online set of materials for a course in contract drafting, complete with assignments, video clips from practicing lawyers, and the like. That might be a way to make up for an instructor’s shortfall in practical experience.
By the way, I don’t mean to suggest that Professor Turner or anyone else is suggesting that teaching contract drafting without transactional experience comes without a cost. The point of this post is to suggest what that cost is and how one might address it.
I would say that is goes without saying that teaching a class about contract drafting (which probably inevitably means teaching about contract negotiation too) would require something beyond the experience of a life time academic. I seriously doubt that a tenure tracked academic (i.e. someone who finished law school, then a masters and then a JD in law and then managed to get on a law school faculty) would have the background to teach such a course. They would need actual in the trenches drafting experience. I also agree that anyone teaching any class would also need some skills in education methodologies (which most of us practitioners do not have).
Yes, transaction experience is important. However, for me, perhaps the most important teaching situations that moved me towards better drafting practices were the few times (early in my career) when I was offered up as resource for a senior litigator to help the litigator understand contracts (drafted by other lawyers in other firms) that had become important components in disputes that they were running which were probably going to head into litigation. One of those litigation experiences is probably more educational than a 100 completed transactional contract drafting negotiations where circumstances were such that the contract drafting never was put to the test because no disputes ever arose. Also, being involved in a start to finish litigation experience regarding a contract is very different from just reading a reported case written by a judge.
I saw many things that influenced my future contract drafting and particularly influenced how I advised clients about the practical limitations of what contract drafting (no matter how masterfully done) can accomplish. Helping litigators often included assessing not only what the contracts actually said but being able to spot provisions that were specially negotiated for some reason in the contract (often the corporate representatives who negotiated the contracts were no longer around to ask why some things were included or not included). The examples of how seemingly clear and unambiguous contract language can be twisted in litigation was illuminating. Also, educational to see how “boilerplate clauses” thrown into the last “miscellaneous” article of many contracts (often without much thought) can be used by a talented litigator to turn results inside out. Also numerous examples of delay tactics being used to frustrate contractual provisions. Also, even if the dispute has the legs to go all the way to trial, how many judges at the trial level appear to be relatively lazy and don’t want to get into complex dissections of contract meanings (particularly if the contracts are very long and complex). I developed an early distain for long and complex contracts – because I saw how difficult it could be to make use of even a technically perfect and precise contract if the complexity of the drafting was such that the judge gave up on trying to figure out the logic of the drafting and made a decision on other grounds. Of course there was always the possibility of a judge that loved getting into the complexities of contract drafting (with less emphasis and on extrinsic evidence of intent, reasonable expectations, etc.) so having a well drafted contract was useful for those occasions.
Thank you for this, Gord.