In my last post, I mused a bit on the subject of reflective practice and on what reflective practitioners may be able to contribute towards the goal of helping law students begin to “do” as well as “think” law. In similar vein, I’ve decided that the time has come to try a little legal education crowd-sourcing experiment. It’s more than likely this will fall flat on its face… but, what the hell; I don’t have anything to lose, so I’ll try it anyway…
Here’s the problem for the educator. Imagine a law student or young lawyer who is asked to draft a business contract for a client (hypothetical or real) for the very first time. How does the educator equip that law student or young lawyer, faced with a client on the one hand and a blank page on the other, to meet the challenge? Where to start? Is it possible, at least in general terms, to generate a set of principles, steps or processes – call it a professional guide or modus operandi or what you will – that our apprentice lawyer can meaningfully grasp and operationalize?
In the spirit of the endeavour, I throw out a few random and disorganized thoughts by way of an initial brainstorm:
- Understand the client, the business context and the relevant business relationship. Goes without saying?
- Understand there is invariably a delicate balance to be struck between the client’s desire to limit length, complexity and legal costs and the need to protect the client’s interests effectively. In my experience, clients favour “short and sweet” (which they associate with lower cost) over “long and winding” (which they associate with higher cost). How to strike the balance is tricky but it needs to be worked out client by client and assignment by assignment. One possible litmus test is to ask whether you can convincingly explain and justify each and every clause in the draft – what’s it for, why’s it necessary etc. For an excellent account of how to think about and manage the cost-versus-protection trade-off I recommend this recent post by Brian Rogers, aka the Contracts Guy.
- Recognize and source high quality forms and precedents and understand their set up and slant. OK, so if you are working in a law firm environment, there will likely be a precedent bank. Even so, it’s clearly not a great idea to work uncritically and unthinkingly from precedents. From which party’s perspective is the precedent drafted? Why is what’s in there in there and why is what’s not in there not in there? The discerning of quality is a harder task for the novice. And even for the initiated it can be a bit like the proverbial elephant (i.e. easy to spot but difficult to describe in words). Best then to give you an example. Here’s Brian Rogers again with a sample B2B sale of goods agreement drafted from the standpoint of a seller.
OK, crowd. Over to you. Please go ahead and add to the list as you see fit!