One of the biggest challenges that I face as a law teacher is how to go about helping students make the transition from “thinking” law to “doing” law. So, for example, in a Contracts class how should we move beyond the necessary foundational task of teaching students to learn how to extract, handle and apply basic legal principles and begin to develop their skills in the practical tasks of contract evaluation and contract drafting? Put another way, how do we foster the acquisition of legal “craft” skills relevant to everyday practice alongside, and in addition to, the cognitive and meta-cognitive skills, such as knowledge acquisition, comprehension, analysis and synthesis, that are our stock-in-trade?
The folk I tend to turn to for inspiration in helping me address this challenge are what I call reflective practitioners. “Reflective practice” is a recognized term of art associated in particular with educationalists such as John Dewey and Donald Schön. However, I use the term “reflective practitioner” to describe practicing attorneys who “do law” on a daily basis but constantly reflect on what they do, and how they do it, in a quest for continuous improvement. Over the next few posts, I’ll highlight some recent examples of reflective practice that, as well as being useful in their own right, also, in my view, illustrate the potential value of collaboration between classroom academics and reflective practitioners in enhancing legal education.
For starters, let’s consider contract evaluation. The process of contract evaluation in part requires us to develop a sense in practical settings of how courts interpret contract language. Over at Drafting Points, Reed Smith attorney Vincent Martorana has just posted an incredibly useful guide to contract interpretation which he recently co-authored with his colleague, Michael Zitelli. It does a great job of synthesizing contract-interpretation principles from court opinions delivered during 2012 in Delaware and New York, arguably the two leading commercial law jurisdictions in the US. The authors’ aims are “to educate transactional attorneys… regarding principles of contract interpretation so that they can draft contracts with these principles in mind” and to provide “a resource for analyzing contracts that have already been drafted or that are already effective, whether that analysis precedes or is in response to a specific dispute.”
Also on Drafting Points, you can find a useful brief summary of the main categories of contract-drafting language that draws on the work of Ken Adams, the author of A Manual of Style for Contract Drafting, to whom I made reference in an earlier post. The post provides a very handy introduction to the basic building blocks of contract language, which nicely illustrates the importance of underlying conceptual distinctions, for example, the distinction between language of obligation (“I will do x”, “I promise to do x”) and language of performance (“I hereby do x”). An understanding of these building blocks gives us a code that can help us unlock, evaluate and critique existing contracts as well as learn how the best lawyers go about drafting contracts.
I am shortly going to be working on a small project with Ken Adams and I’m looking forward to what will be a highly instructive experience. He is a practitioner-educator from whose practice there is much that law teachers, students and the wider legal profession can learn.