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.