What is the right time to learn contract drafting?
These past couple of months have been educational for me. I have (re)learned how to draft contract, write articles, learn about different laws, interview experienced lawyers, strategise, etc. It was kind of being taken to school. Law school teaches us to analyse laws, interpret them, brings about the ability to argue from both sides for any matter, life skills and much more. You can read more about here.
In my interview with these lawyers, I have always asked them about their law school experiences. The idea behind it is simply to let the law students and lawyers out there know that everyone’s in the same boat. The institutions may vary, but the education system is often more similar than we realise. What sets us apart in the long run is all about what we do in law school and beyond.
Contract drafting is a quintessential skill set which is required by most lawyers in their practise or at their jobs. Then why does not law school teach us contract drafting from the first year? Recently, someone commented on my one articles saying that learning for a lawyer is lifelong, and all things cannot be taught in law school. I partially agree with this.
Learning is a part of the job for lawyers. They must learn to keep or or not learn and become irrelevant. Even the senior lawyers keep on learning even if they have attained great heights, because the profession demands it.
But that brings me back to the initial question, when should you learn contract drafting? Should you learn it while you’re learning contract laws? I was taught contract law in my first year. Then ideally, the practical aspect of it should have been taught around the same time, right? But it wasn’t until much later, during internships that I actually started working on one. The first time I drafted an entire contract was after my graduation and on the job! It was a shoddy piece of work, naturally.
These days there are comprehensive contract drafting courses available for law students and lawyers to refine their practical as well as theoretical knowledge of contracts. However, these focused courses were not available in my law school days. So eventually, I self-learned. It was definitely more arduous and the longer route to learning. I could not see a better way at the time.
There was a time I would have given anything to learn contract drafting the right way. It is that important. So why must you learn contract drafting in law school? Here’s why:
Bread and butter for the lawyers
Just like litigation, contract drafting is an indispensable aspect of legal practise. As lawyers in non-litigation field, you’d be reviewing, analysing, preparing reports, strategising, negotiating contracts. If there is one thing you can be assured of in terms of skill sets, it is contract drafting.
You’ll spend the formative years of your career dealing with interpretation of contracts, reviewing them. Then you’ll be adding clauses and soon drafting them from the scratch.
Any deal between any parties has an underlying contract. If you’re at a law firm dealing in mergers and acquisitions, contract drafting would be essential for you to learn.
Even if you’re working in-house, you’d be reviewing and drafting contracts half the time. It can be anything from talent acquisition to IP procurement or licensing, etc. In case of litigation, contract drafting can help supplement the income for young lawyers. You may also get clients from time to time, seeking advice on common contracts like rent agreement, lease agreement, partnership agreement, employment agreement, etc. You can’t advise on something you don’t know about. So even for litigation lawyers the knowledge of contract drafting is paramount.
Improves negotiation skills
What goes hand in hand with contract drafting are negotiation skills. Every contract has to be negotiated by both sides. No party wants the bad end of the deal, so they will negotiate the rights, obligations, consideration, etc., at length. The idea of negotiation stems from agreeing on giving up something in lieu of something else. A good lawyer must know what their client requires more and be able to deliver that through negotiating a contract.
Negotiation skills can be improved with practice and experience. The more contracts you draft, the more negotiation experience you’ll gather. Therefore, contract drafting is essential to the same. You must know exactly which clauses to insert and remove to achieve the desired results, i.e., client’s interests.
Improves analytical abilities
Your analytical abilities are enhanced when you learn how to draft contracts. You are required to understand from client’s brief what are their requirements. Then you proceed to draft a contract which reflects and protects their interest.
For instance, if your client has a product he wants to sell on some platform like Amazon, they must enter into an agreement with them. Your client wants to enter the bigger market and customers, without diluting the uniqueness of their products. So they need the intermediary platform to protect their IP rights. You as a lawyer have to negotiate a deal and insert necessary provisions in the contract in order to deliver the same.
This requires you to understand the requirements of the client, potential threats and risks involved and provide for them accordingly. For this you need to analyse the deal from various angles, laws involved, etc. to come up with an optimal solution. If each deal requires similar expertise, imagine drafting multiple contracts and how it improves your analytical abilities.
Improves knowledge of laws
Law school teaches you how to analyse and interpret the laws through tests, assignments, moot courts, etc. It is the closest one can expect in terms of practical knowledge and application of the laws learnt.
But contract drafting is more than just about contract laws. Think of it as the skeleton holding the deals together. It is the basis of deal, but the deals may vary. You may have a client who needs an NDA, or a Master Service Agreement, or an IP licensing agreement, or a joint venture agreement. Different contracts involve laws and require expertise in the same.
So lawyers have to acquire a functioning knowledge of various laws at the time of identifying the potential risks, determining the rights and obligations, etc. This requires them to not only know the laws but also have a functioning knowledge of the prevalent laws and regulations like IT laws, IP laws, labour laws and the likes.
So the question is, why is contract drafting important to learn in law school and not on the job?
You spend five years, that’s half a decade in law school. That is ample time to learn both the pertinent practical and theoretical skills of the profession. You will have to learn a lot of other things on the job apart from law, like business knowledge, strategizing, report management, etc. You get a glimpse of that during your internships. But very few mentors give substantial work to an intern.
Where do you learn more? In a month or two of internship, or when you have one-to-five years, to hone a particular skill set?
The reason for learning contract drafting is the same as moot court competitions: you need the practice. While moot court helps to the extent of giving a somewhat true experience of how a courtroom might be, drafting of memorials, arguing the matter, etc., what do you learn about contract drafting in law school?
Is contract drafting not an essential skill set? Check any job description for a lawyer on the job portals like Naukri, LinkedIn, etc. It always specifies contract review, contract drafting as desired skill set in a candidate. So you know that it is a crucial skill set. Then just like moot courts, should it not be available for you to learn from the first year itself? Should it not be part of the curriculum rather than optional internships? Contract drafting should be taught along with the theory of contracts.
So where do you learn contract drafting, if not law school. How do you learn contract drafting on your own? You could do a comprehensive contract drafting course or you go could my way and self-learn. Mind you, my way takes years to learn contract drafting. You can read more about learning contract drafting while on the job or internship here. The drawback with self-learning is the lack of feedback and improvement. You don’t have the same means to evaluate or assess your improvement like in law school or a self-paced online course.
The point is to learn the pertinent skill sets while still in law school, so that you have time to improve in school itself, rather than on the job. It is not like you will not need any training on the job. But if you know contract drafting is needed on the job, wouldn’t you rather go in prepared the best you can? I know I would have, if I realised its importance in time.