Archive for the ‘Reflective Practice’ Category

It is pretty obvious that law students need to develop their reading and writing skills in order to be effective lawyers.  Oral communication skills are also important, and not just in lawyering contexts that immediately spring to mind such as courtroom advocacy. Clients need to be counseled in language that they will understand rather than in “legalese”. Deal lawyers need to be able to talk effectively with other deal lawyers.  But lawyers also need to be effective listeners.  This is sometimes forgotten but again it is fairly obvious (think client interviewing and client counseling or consider, in the litigation context, what’s involved in the taking of depositions).  It follows that law students need to begin to develop this skill.

Listening involves processing.  Law students have to do a lot of both. And so listening skills can be developed by the adoption of active learning strategies in the classroom. Jennifer Murphy Romig of Emory Law School, the founder of the blog Listen Like a Lawyer, offers some valuable advice on the Girls Guide to Law School website about listening and note-taking and a listening check-up for first-semester law students on her blog.  Well worth checking out.

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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:

  1. Understand the client, the business context and the relevant business relationship.  Goes without saying?
  2. 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.
  3. 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!

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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.

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