Yesterday I read this AmLaw Daily article by Steven J. Harper, a retired Kirkland & Ellis partner. It laments that the emphasis on short-term metrics at law firms means that increasingly, mentoring is falling by the wayside. Others, including the WSJ Law Blog and Above the Law, have waded in.
I don’t doubt that the situation is as depicted by Harper, but when it comes to contract drafting, the extent of the problem can be overstated.
Harper starts out by quoting a pundit to the effect that we’re experiencing “a generalized absence of the wise old politician/lawyer/leader/editor who helps the young along, who teaches them the ropes and ways and traditions of a craft.”
When considering how that applies to the transactional world, bear in mind that many of the problems that afflict contract drafting are the result of treating it as a craft. Repeat three times after me: Contract drafting shouldn’t be a craft, it should be an industry.
And it follows that because the nature of the work is so precedent-driven, what’s required is not the one-on-one handholding that is mentoring, but instead plain-old training.
But that training shouldn’t consist of anecdotal musings offered in a conference room over a buffet lunch. Instead, training in contract drafting should come from consulting an authoritative reference work; participating in structured training courses, whether provided by law schools, CLE providers, or someone else; taking an online test of your contract-language proficiency; and consulting the annotations when you complete a document-assembly questionnaire forming part of a contract-automation system.
We have ways to go in terms of providing a full range of training options. I expect that an online test will materialize before too long; see my recent post on the subject. It will be a while before you can get training in the process of completing a document-assembly questionnaire, but that too is coming.
Nevertheless, there will always be a need for mentoring. You can learn from commodity information a lot about, for example, negotiation strategies and the care and feeding of clients, but perhaps the most memorable lessons come from being shown. And perhaps the most important function of a mentor—watching your back in the snake-pit law-firm world—isn’t at all about providing instruction.
Yet I’m not convinced by the WSJ Law Blog’s recommendation that associates “demand” mentoring. That’s sort of like demanding that someone be your friend. Mentoring is a subtle function of personalities, needs, and opportunities, so good luck imposing it by fiat. And I suspect that even in the best of circumstances the number of associates would way outstrip the capacity of senior lawyers to provide mentoring.
So the importance of mentoring is perhaps overestimated when it comes to contract drafting, but what’s involved in providing mentoring where it matters is perhaps underestimated.
6 thoughts on “You Say Mentoring, I Say Training”
> Contract drafting is not a craft, it's an industry
Sounds like you've read Dr. Atul Gawande's book, Better. He recounts how obstetricians decided to stop declaring that forceps were the standard of care for breech births, because forceps use was difficult to teach and to monitor for quality control. They switched to having a a C-section be the standard of care for that situation, because C-sections could be both systematically taught and monitored. They did this because they stopped thinking that their collective goal was to ensure the optimum outcome for every delivery. (Their rationale was that the downside of poor use of forceps was too high.) They decided their goal instead was to have the maximum number of healthy births across the population.
If you look at the incentives at work, you see a different picture with the obstetricians than with contract drafters. In the former case, an OB doc surely gets a higher fee for doing a C-section than for using forceps. Whereas over time an 'industrial' approach to contract drafting would threaten the livelihoods of the "craftsmen" who currently do that work.
D.C.: I read a New Yorker article by Gawande that I mentioned in the following 2007 blog post: https://www.adamsdrafting.com/2007/12/17/grossly-i…. But I recognized long before that the problem with treating contract drafting as a craft.
As for competing incentives, the picture should be less murky than in medicine, in that instead of doctor, patient, insurer, and government, you just have law firm and client. But things are in fact plenty murky.
I am not so sure that you and Steven J. Harper would disagree. A good mentor would advise that you are failing your client if you don’t master the fundamentals of contract drafting.
JohnD: I don’t think Harper and I would disagree; I attempted to note as much in the post. Ken
1. Contract drafting is a technical skill not a craft. Agreed.
2. Deciding what to put in the contract requires a range of skills, some of which are not merely technical. For example, today I will be drafting amendments to an existing licence agreement that was drafted several years ago without my involvement. My task is to make some deft changes that address my client's commercial concerns without covering the document in red ink. In doing so, I have to take account of my client's written comments (some of which are good, some less good), telephone discussions with the client (where I got a sense of my client's general approach and how much latitude I would be given when preparing the draft), my own views on what are the important issues (based partly on experience, partly on analysis of the documents), my knowledge of the other party and how they would be likely to react to changes, and so on. I have also spotted a couple of legal issues in the agreement that need to be addressed. Some people might call these craft skills, but I would just call it being a professional adviser.
3. Professional advisers (including those who practise as contract lawyers) benefit from training, supervision and mentoring. Sometimes it is difficult to distinguish between training, supervision and mentoring. In my experience, it takes about 4 years to train up a good contract lawyer to the point where they need little supervision and can decide for themselves when they need to ask a "wise head" for advice.
Mark: I should perhaps have made it clear that when I was referring to training in contract drafting, I had in mind becoming familiar with the building blocks of contract language. Considered more broadly, contract drafting articulates a transaction, so accomplished contract drafting requires the kind of substantive expertise that is more hard-won. And on top of that, you have to be able to handle the sort of nuanced decisions of the sort you refer to; I tried to allude to them in my post when I referred to negotiation strategies. Ken