Stray Thoughts on Who Should Teach Contract Drafting, and How

The Conglomerate Blog has been running an interesting series of posts on the theme of “Minding our own business: How changes in the business of law might affect law schools and what law professors should be doing about it.” The most recent one is here, and is by Michelle Harner, associate professor at the University of Maryland School of Law. I noted in particular the following:

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.)

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.