The ineffable A. Wright Burke, M. Phil., asked me today why I don’t offer gradations of “Drafting Clearer Contracts.” “Introduction to.” “Intermediary.” “Ninja.” And so on.
He posed his question with the best of intentions, so he probably didn’t expect me to start scowling and gnashing my teeth.
Contract drafting isn’t like learning macramé, where you can start with a bracelet and work up to a bedspread. (What the heck is macramé, anyway?) Or like learning French, where you start by practicing on a sneering waiter, with the aim of building up to debating existentialism at Les Deux Magots.
Instead, once you start drafting contracts, you’re immediately at warp speed. The building blocks are the same, whether you’re dealing with a generic confidentiality agreement or a hulking merger agreement. Sure, the deal complexity is vastly different, but that’s a function of what you say in a contract; the stuff of A Manual of Style for Contract Drafting is how you say it.
So contact drafting isn’t amenable to incrementalism. No “Basics of Contract Drafting” and “Advanced Contract Drafting” for me.
And while I’m at it, no “Nuts and Bolts of Contract Drafting”—the “nuts and bolts” thing is perhaps a bit tired by now. And no “Secrets of Contract Drafting.” If there are any secrets, someone’s very good at keeping them, because I sure don’t know of any.
I suppose I could do “Son of Drafting Clearer Contracts,” or some such. But the whole point of the seminar is that it’s an introduction to the approach reflected in MSCD. After you’ve had the introduction, you don’t need yet another introduction; your best bet is to turn to the book.
As Jean Paul Sartre nearly said, hell is other people’s drafting courses.
Is there really no benefit in having different lengths of course, eg a taster session, your current course drafting clearer contracts, and a longer course with more practical exercises and explanations of the detailed content of MSCD?
Or differences in how one teaches the same topic to people of different ability levels? or people with different levels of learnt bad practice that needs to be ironed out?
Some people need more driving lessons than others, though the principles are the same for everyone.
Hey, I do offer presentations of different lengths, from 1.5 hours to two entire days! But it’s the same stuff: just the longer a presentation is, the more time there is for detail and working through examples. And I make adjustments if the group is primarily made up of non-native English speakers. But that’s different from offering different levels of seminars.
In particular, I find that I don’t need to make adjustments depending on whether I’m dealing with a group of junior or less-junior contracts professionals. Sure, junior people are inexperienced, but senior people usually have bad habits and ingrained misconceptions. So it’s a wash.
Ken writes: “Contract drafting isn’t …. like learning French, where you start by practicing on a sneering waiter, with the aim of building up to debating existentialism at Les Deux Magots.”
Au contraire, mon vieux — that’s exactly what contract drafting is like.
When I was a baby lawyer, my senior partner, the late and legendary IP litigator Tom Arnold, asked me to do a simple confidentiality agreement for a friend of his, “Bill,” who was going to be disclosing a business plan to a friend of Bill, “Jim.”
Tom told me NOT to draft a conventional agreement. Instead, I was to draft just a short letter along the following lines:
“Dear Jim:
“This confirms that I will be telling you about my plans to go into business raising tribbles.
“You agree that (1) you won’t disclose what I tell you to anyone else, and (2) you won’t use the information, unless the information has become public or I say in writing that it’s OK.
“If this is agreeable, please countersign the enclosed copy of this letter and return it to me.
“I look forward to working with you.
“Sincerely, Bill.”
When I’d prepared a draft, I asked Tom, isn’t this pretty sparse? Tom said yes it is sparse, but:
A) Bill could take the letter to court if necessary, and the text was enough to let Bill get to a jury — as in, survive a motion to dismiss or for summary judgment — and give him a good shot at a preliminary injunction; and
B) equally importantly, it was something that Jim would almost certainly sign immediately, without the delay that would result if Jim felt he had to have his lawyer review it.
Now, 30-plus years later, when I teach my 3L contract-drafting course, I like to have the students start out with something simple like that. It helps build confidence, and gives them a foundation for gradually learning more.
That’s a great story. And perhaps it would further Ken’s goals if all drafters began with such a simple letter, adding to it only when they fully understood what they were doing, and why.