It’s becoming harder and harder for law students and lawyers of all levels to gain practical and real-world skills in contract drafting. When you add in the number of freelance contract drafters who may not have substantial experience and skills in contract drafting, but are receiving payment for doing so (often at much lower prices than many practising lawyers and many with limited qualifications), this is a significant problem for the industry.
Lack of upskilling of law students and Contract Lawyers of all levels
Over the last decade, this lack of upskilling of law students and contract lawyers has become apparent around the world; it has been made significantly worse by Covid and the shift to working from home.
These days, many Partners and Senior Lawyers are less able (or not as willing) to share off-the-cuff knowledge with their team members like they used to when lawyers worked full-time from their offices.
The following issues are also having an impact on how law students and Contract Lawyers are upskilled:
Law students
many University courses or classes have moved online, which reduces discussion and learning amongst law students;
the University teaching model does not allow for teaching practical contracting skills (discussed further below);
Contract Lawyers
the trend for lawyers to spend less time at traditional law firms before moving to their next firm or changing careers (less than 2 years on average, and I suspect it’s far less now for many);
the greater mobility of lawyers due to The Great Resignation (and that’s a separate blog post in its own right!); and
the large number of lawyers (many of whom are relatively junior) setting up their own small law firms and needing to gain experience or skills in contract drafting over time as they carry out work for their clients.
Contract drafting is a critical skill for law students as they graduate from University and move into law firms or other legal roles. But Universities don’t teach law students how to draft contracts from a practical and hands-on perspective.
It is also critical that Contract Lawyers of all levels are able to gain skills and experience in contract drafting. And contracting is one of the fundamental skillsets that are required of lawyers in most law firms and in-house, including lawyers in practice groups and specialities from Commercial Law to Corporate Law, Mergers & Acquisitions, Industrial Relations (eg Employment Contracts), Construction Law, Banking and Finance, Property Law, and many others.
Even litigation lawyers benefit from strong contracting skills, as the subject of many litigation matters revolves around a contractual relationship between the Applicant and Defendant.
Lawyers who have not practiced in areas involving contracting often want to change specialisations (more these days than in the past). It is also a challenge for these lawyers to learn how to draft contracts with sufficient skills and gain practical experience to enable them to change careers.
How Universities teach Contracting to Law Students
Most Universities are based around a theoretical teaching model, where they provide the components of theory that are required of a lawyer but leave it to law firms to teach law students (through Internships and Clerkships) Lawyers (through employment) the practical skills they need to succeed in the legal field.
Unfortunately, this theoretical teaching approach falls down when law firms don’t uphold their side of the law student and employment “bargain”.
Internships
Internships (which includes clerkships and other opportunities for law students to gain practical experience in a law firm) are meant to be one of the key ways that law students learn real-life contract drafting skills. But with many thousands more law students than law firms who offer Internships, these days many law students don’t have the opportunity to participate.
And even when an Internship is offered, all too often the law firm uses that intern as a nominally paid (or unpaid, which I completely disagree with!) source of labour for legal administrative tasks.
When I went through my Internships and Clerkships in Australia 20 years ago (5 in total during my University legal studies, all paid), I was assigned a Partner in each firm who made sure I had a steady flow of “real” legal work. The Partner would discuss with me the work I later delivered, comment on what I could change, get me to make the changes myself (which is a hugely important way for law students to learn practical contracting skills) and actively try to teach me useful legal skills. I never had to do photocopying or mass administrative jobs for litigation matters that are usually undertaken by paralegals.
At that time in Australia, law firms used Internships to pick the candidates they wanted to recruit for their firms. The Human Resources team of each firm played an active role in the Internship Programs, and because it was hard to find excellent candidates, law firms went out of their way to “wine and dine” their Interns.
Because of that, Interns were able to learn important skills, like techniques for drafting contracts, get things wrong and improve their skills by receiving feedback on their work, and put new techniques into practice in a supervised law firm setting.
Now, however, thousands and tens of thousands of law students are looking for Internships in law firms each year. Because there are so many law students compared with law firms, the balance of power has shifted and law firms can take their pick. Which means that many law students miss out.
Law firms do still use Internships as an important recruitment method. However, rather than “wining and dining” Interns, these days law firms see so many applications for Internships that they have, in large part, become blasé to the need for their Interns to learn practical skills, including contract drafting. Even the law firms who do actively teach their Interns are only able to do this for a relatively small amount of time (often between 4 weeks and 8 weeks) and for an extremely small number of Interns compared to University graduates each year.
Obviously, there are exceptions, and if you are one of the lucky law students who participated in a fantastic Internship where they not only paid you but also taught you contract drafting skills, be proud that you’ve had such a great experience!
Contract Lawyers
As for Junior Lawyers and Contract Lawyers at all levels, Partners and supervisors seem to spend less and less time teaching and showing contract drafting techniques (as well as giving opportunities to practice skills and receive feedback so the lawyer can improve).
With email being used more and more often in law firms, it has become common for supervisors to make amendments to a document themselves and send this out to the client, often without involving the Contract Lawyer any further. This makes it hard for many lawyers to gain visibility on what amendments were made to their document, which is essential to giving those lawyers the learning opportunities they need.
Too often, I’ve heard comments like:
- there’s no point wasting my time teaching them, they’ll be gone in a year;
- I’d rather do everything myself than train up a lawyer; and
- what’s the point – they get everything wrong and I have to fix it, which takes me more time. I’ll do it right the first time.
Again, there are obvious exceptions. Some Contract Lawyers will be lucky enough to find a supervisor who takes the time to train, upskill and mentor them – that will be a significant factor in the lawyer’s job satisfaction and personal fulfilment.
Unfortunately, as noted above, these days active training, mentoring and upskilling by supervisors is not as common. And with more Contract Lawyers also working remotely, the opportunity to be comprehensively mentored and taught by a Senior Lawyer is also less for many Contract Lawyers.
The use of AI
With AI becoming more pervasive in the legal industry, I strongly believe that the opportunity for lawyers at all levels to learn practical contract drafting skills will diminish exponentially each year that goes by. Already, AI programs are being used by many organisations and law firms as a proofreading tool, and some are becoming advanced enough to be used to draft contracts.
I have strong views about AI. If used as a tool to help someone more quickly do a job they could do manually, I’m all for it. But if AI is used as a crutch for a Contract Drafter, who is unable to verify that the words spun out by the AI program are correct or that the contract is drafted in the right way, that can be very dangerous indeed.
And if law students and Contract Drafters are unable to obtain satisfactory contract drafting skills, and instead are forced to rely on AI to do their work for them – I think we will rapidly approach a tipping point in the legal contracting industry.
The problem
This lack of upskilling and training opportunities leave a majority of law students and Contract Lawyers with difficulties as they struggle to upskill themselves, meet client expectations, meet supervisor expectations, battle Imposter Syndrome and potentially change specialities over the course of their career.
So how can law students and Contract Lawyers learn practical contract drafting skills?
After recognising the problems, the question then becomes – how can someone learn these practical contract drafting skills?
If you are a law student, how can you:
- gain practical experience to better understand the theory you are being taught at University?
- improve your chance at finding a permanent role after graduation?
- gain skills, knowledge and experience so you can earn money as a skilled and competent freelancer?
If you are a Junior Lawyer, how can you:
- learn techniques of drafting contracts so you can get better at your contracting job?
- gain experience if your supervisor at work refuses (or is too busy) to train you?
- learn how to draft contracts in Plain English and improve your skills, perhaps when your firm does not follow that contract drafting methodology?
- learn international standards of drafting to grow and develop your knowledge (for example, in Australia, we generally draft contracts using Plain English, many headings and subheadings, with no caps versus the US, who often use caps when drafting contracts)?
If you are a Senior Lawyer, how can you:
- learn advanced contract drafting techniques so you can refine your skills and continue your professional development (knowing that different people teach contracting differently, and that there is always more to learn)
- find someone willing to teach, train and upskill you so you can change specialties if you want to practice law as a contract drafter?
- gain experience in private sector contracting if you have always been a government lawyer (or vice versa)?
There are various options that can be taken, with some likely to have better results than others.
Option 1 – Upskill Yourself
Law students and Contract Lawyers can take the initiative to upskill themselves on contract drafting.
This may involve:
- reading posts on contract drafting on LinkedIn – check out the hundreds of practical contract drafting posts that I have written here;
- watching videos on practical contract drafting – check out my channel here;
- reading books on contract drafting (the more practical the book, the better);
- reviewing sample contracts to see how other people have drafted them;
- practising making amendments in redlining to sample contracts or clauses (and even better, asking a friend or colleague to give you their thoughts on your amendments);
- when drafting a contract, gather relevant example contracts for reference (making sure these are from the same jurisdiction where you are located);
- Draw parallels to contracts you are drafting
Option 2 – Find a Mentor who will teach you for free over time
This is often someone who works at your firm or the firm where you did your Internship – perhaps a Senior Lawyer who is not at Partner level.
The best Mentor is someone who loves teaching and upskilling Junior Lawyers, who is willing to spend the time guiding you, answering your questions, and giving you extra work to do while you learn new skills and practice them.
Option 3 – Join Contracting Groups on Social Media
There are various groups on social media who will help you learn more about contract drafting. How to Contract,Contract Nerds and LawSikho are fantastic communities built around all things contracting. They are also good places to get word of upcoming contracting courses.
Contracting groups usually rely on self-paced learning and advertise workshops and conferences – they are best viewed as a source of information rather than teachers in their own right. It will be up to you to action and practice further anything you learn as a member of those groups.
Option 4 – Join legal associations and organisations
Joining legal organisations may be a good way to gain practical contract drafting experience. In my experience, most of these bodies tend to lean more towards theory than imparting practical knowledge, but it is worth checking to see if your local organisation is different.
Many do run workshops and conferences that teach some skills – keep in mind however that they cater to all lawyers, including non-contract drafters. They are also often focused on continuing legal education and current events affecting the legal industry, rather than giving a solid grounding in a particular legal area such as contracts.
Option 5 – Pay for targeted contract drafting courses
One of the best way to learn practical contract drafting skills is to pay for courses that are specially targeted to give you solid fundamentals, build on the basics with intermediate contract drafting skills, then teach you advanced and applied contract drafting techniques.
The best contracting courses should:
- be practical and not theoretical. You don’t need to learn – again – about offer, acceptance and consideration
- give hands-on drafting practice. Even better, they should have Group sessions where, after you practice a new skill or task yourself, the expert contract drafter walks you through what you have done and provides examples of their drafting so you can compare it against yours
I am in the process of completing one such course, “Improving your Confidence in Contract Drafting: Learn the Fundamentals of Contract Drafting in only 10 weeks”. This course will be launched in early 2023 and will involve video modules, a Workbook, Group Sessions, practical exercises in contract drafting, and answers discussed so students can think about what they drafted compared with how I would have drafted the same task. The course is aimed at both law students and Contract Drafters of all levels – I will be releasing a number of intermediate and advanced courses over the next 11 months.
Option 6 – Pay a contract drafting teacher for small group lessons
If enough of your fellow lawyers or law students all want to learn about contract drafting skills, consider approaching a course provider and expert who you trust, and asking them to upskill you all in a small group setting. I have been approached in the past by a friendship group of 8 law students, who each offered to pay a certain amount per week for an hour of my time teaching them and assigning them lessons.
I jumped at this chance to help them, and their offer made it easier for me to say yes – one student on their own may not have been able to afford my hourly rate, but a group of students could.
One of the benefits of this approach is that you can work with your teacher to design your own lessons. People from different countries may learn different skills at University, so this gives you a chance to “plug any gaps” or catch up on skills you are missing with your lessons.
Once students have taken my scheduled Fundamentals courses, I am open to teaching by this method – feel free to email enquiry@
Option 7 – Pay a contract drafter teacher for private lessons and to shadow them in their professional work
If you’re looking for a way to get practical contract drafting experience, consider paying a contract drafter for private lessons and shadowing them in their work. This is a great way to learn the ropes and get hands-on experience drafting contracts. You could reach out to people in your network or use professional directories to find contract drafters who are willing to take on an apprentice or two.
By shadowing them and seeing what they do, you can learn how contracts are drafted and start gaining confidence in your skills. This is especially useful if you are just starting in the field of contract drafting. You can also carry out tasks assigned to you by the contract drafter, for example, preparing the exercises for the next contract drafting course
I am also open to this method of teaching. In theory, it involves a similar approach to an Internship, but it is also completely different. With an Internship, there is no guarantee that the law student will learn any skills at all. Whereas this method of teaching is structured to maximise the skills taught to the student.
if you are trying to change careers to become a contract drafter, this would be my recommended Option, as you could then (depending on your teacher) potentially place the experience on your CV in a way that appeals to the interviewers at your next role.
I am open to teaching by this method, and one of my specialities is helping lawyers change careers and become contract drafters – email me on enquiry@
Conclusion
More and more law students and Contract Lawyers these days are struggling to gain the necessary practical skills and techniques to properly carry out their roles as Contract Drafters.
While there are some Options, listed above, which Law students and Contract Lawyers can overtake to overcome any lack of practical training, these all rely on the student taking the initiative and incurring the expense themselves.
Some law firms do institute formal training programs to train their Junior Lawyers, but these programs are often as hoc and decrease as the lawyers gain seniority or as economic times worse. Often, there is no account taken of whether a particular Partner at the firm has or has not been upskilling their lawyers, which may mean lawyers attending those training sessions don’t follow along if the training is more advanced.
With the advent of AI, I foresee this problem of insufficient training getting worse rather than better.
In my view, a global fix is needed to ensure that law students and Contract Lawyers have the chance to receive the necessary training. Otherwise, in less than 10 years time, we will find ourselves with a generation of lawyers who have not been properly trained in the art and techniques of contract drafting, and are relying on AI to do the drafting for them (often without knowing whether the AI’s document outputs are correct or not).
As a recommendation, law firms and organisations with in-house counsel should make available a stipend each year to allow their staff to pay for contracting courses.
For my part, I plan to put out as many courses on practical contract drafting skills as I can in the next couple of years – a small part of the effort that will be needed to keep the skills of contract drafting alive.
