Intro to Tina Stark’s Exercises for Contract Drafting Skills
Over the years, contract drafting exercises developed by one person have become more and more popular. I know this has certainly been the case for me. I have often appreciated those exercises to help my students temporarily shed misconceptions about how real drafting is done and bring them back to the reality of putting pen to paper.
Perhaps the person who has most effectively and consistently created cutting edge contract drafting exercises over the last several years is Tina Stark. Tina’s exercises are invariably fresh, innovative, and sometimes provocative. Tina has been on top of and ahead of the curve relative to teaching how contract drafting should be taught and learned. In addition, Tina is a past president of the American College of Contract Counsel and the author of the acclaimed text for legal educators that includes numerous contract drafting exercises.
In 2000, Keith B. Carlton and I wrote an article on Pedagogical Approaches to Legal Drafting Instruction that included a variety of legal drafting exercises (see The National Contract Managers Association Contract Management Magazine – Vol. 1 No. 5 December 2000). The exercises in the article were divided into three main parts: (1) Lesson Planning Examples; (2) Skills Assessment Examples; and (3) Real World Applications Examples . Many of the "real world applications" what we termed "The Stark Drill," which is based on a variety of past non-disclosure agreement contract negotiations that Tina Stark ran with her students.
Tina’s exercise-related activities are many and include assembling groups around particular non-disclosure agreements to negotiate and study, coordinating with other law teachers to develop exercises that involved teaching how to use a process called "strip heading," Teaching Practicum (jointly with Dan Barnhizer) for CLEAPD – American Association of Law Schools Section on Legal Writing, Reasoning, and Persuasion; and Creating Excellence in Drafting Exercises and Lessons to Foster Critical Thinking in the Undergraduate Program – a study to create a Team Teaching Assessment Project (TTAP).
In fact, if you want to know just about as much as there is to know on contract drafting exercises, you will quickly discover Tina’s name is everywhere when you research the topic.
Whether you are a law teacher or a practicing attorney seeking to learn more about developing innovative exercises, you need to read Tina’s trademark article Contract Drafting: Improve Your Drafting Process from her book A Practical Guide to Legal Drafting.
Why Do Contract Drafting Exercises?
As discussed in our last post, we have a guest writer on this blog who is posting her explanation of the rule in In re Stambovsky. You may recall that this is the rule that says "time is of the essence" is not good enough to be a default provision. Last week, she explained why it’s not a good idea to put "AS IS" in a contract. But perhaps there is an exception to that "no good idea to put AS IS in a contract" rule — when the parties want to allocate risk and if they fail to agree in a contract, that’s a problem for future lawyers to sort out. So maybe it’s kind of good to leave it open, especially if the parties are willing to take that risk. If you do decide to put "AS IS" in a contract, as you probably know by now, the parties’ intention is really, I mean really important. Just check out this section of the opinion: If as here, the house was sold "as is," the seller’s intent must be assessed against this language from the purchase agreement: Practical exercises are a critical component of mastering perhaps the most valuable skill to have as a transactional lawyer: contract drafting. Having practical exercises in this new edition of Tina Stark’s seminal text on contract drafting provides me with the ability to go beyond the theory of contract drafting and provides me with short exercises that I can apply to real-world situations. Practicing with these exercises, rather than just reading about them, will help me master contract drafting. Tina Stark, the author of the text and the exercises, has also spoken about the importance of exercises in helping people become good at contract drafting. She said it this way: [T]he use of exercises enhances the learning experience because it makes what can be, frankly, inane material, come alive. It turns students into architects and makes them focus on the words, on the architectural design, on the importance of careful consideration of what they want to say in a contract. Practical exercises have been an important part of contract drafting instruction for more than three decades. They are included in R. Melvin Asher’s Cases and Materials on Contract Drafting and Tina Stark’s earlier Business and Legal Analysis of Contracts. I taught both of those texts in the 1990s along with my Contracts casebook and found that the combination gave my students the ability to spot and analyze issues at a very young age. In an increasingly competitive legal environment, the ability to draft a clear and precise contract is something that all of us should strive to achieve.
Contract Drafting Exercise Patterns
A recurrent theme in Tina Stark’s exercises is the interplay between rights and obligations, and how they are priced into the contract. She often emphasizes that in drafting contracts, you are transfering rights from one party to another, and that each side needs to weigh the balance of what they are giving up against what they are receiving. She flags concerns to look out for, such as the unintended assignment of rights or how obligations are worded to protect against "surprise" triggers at a later time.
Another common scenario concerns the allocation of liabilities among different parties. Tina uses these exercises to explain the importance of limiting liability, timing of liabilities, and indemnity clauses. Repetition of these concepts helps reinforce them to the reader.
She also references real world examples of how certain provisions could have been better drafted to avoid unwanted consequences, or where the parties did not allocate risk properly, or worse yet, thought they were allocating it when in fact they were not.
Five Tips for Working on Contract Drafting Exercises
As we discussed in the overview portion of this series, contract drafting exercises are characteristics by a text (the given set of facts) and a task (the drafting assignment). But breaking down a drafting exercise further, there are a few strategies and tips that can be helpful in producing a stronger drafting response.
First, be sure to read the question carefully. The exam question will provide you with the facts and tell you what you are expected to complete or provide, as well as tell you how long the response should be. Be sure next to each question to note the length requirement, as well as whether the question asks you to draft a document, explain a set of facts, present alternative drafting options or critiques, etc. Then, be sure to map out your response. I cannot tell you how many times I would write out my outline of responses based on various risks or mistakes identified and end up forgetting an entire section of the provided facts and/or the drafting response!
Next, as you draft, be sure to refer back to the question and the facts outlined in the scenario. If a fact is included in the question, it is there for a reason. Sometimes those facts are to throw you off, but many times they are there because they are good and bad facts for the client position and are there to be considered in the drafting or recommendation process. In addition, be on the lookout for facts that are not included in the question. These are sometimes also included in the facts to throw you off, but can be important gaps in the facts to note as well. So if you find yourself stuck, take a step back and be sure to consider the facts presented in the question versus the gaps. Are those gaps for a reason?
Finally, before submitting the draft, be sure to proofread and edit your response. Read your response out loud to yourself. I cannot tell you how many missing words come out when proofreading by reading out loud. If you don’t catch anything, ask a friend, family member or mentor to read it out loud back to you. Is it correct? Does it make sense? Are their typos?
With practice, these strategies and tips can become second nature in your contract drafting toolkit. And while exam drafting may never be perfect, hopefully you’ll have the resources and tools to get a little bit closer!
Examples and Sample Answers of Contract Drafting Exercises
While this course has its set of exercises (from the Six-Minute Solutions book), often it is beneficial to compare the learners’ answers to reference answers. Here the latter are provided alongside the exercises, so that anyone learning contract drafting can see what answers and solutions are expected from lawyers skilled at drafting contracts . These solutions can be helpful for a number of reasons: With these frameworks and reference answers, as well as with the videoclips, suggested solutions, and the CMI links, readers gain familiarity not just with the language commonly used in contracts, but also with the style favored by experienced professionals in the field. Again, frequent review of these reference materials is vital for getting the most out of this course.
Additional Resources for Mastering Contract Drafting Skills
Additionally, for those who have access to it, I highly recommend the Practitioners’ Guide to Drafting a Commercial Contract" by Ann A. Sinsheimer. This is a good resource with examples of particular clauses. Another option is a web tutorial on Business Law Center, that provides a video with a transcript and transcript-only options at a modest fee for each section (i.e., cash management). The material provides the lessons and examples found in the books or the seminar series. I highly recommend this. The cost is very modest and the result well worth the effort. For some resources and an opportunity to continue your learning, you can contact the American Law Institute (ALI) or the Practicing Law Institute (PLI). ALI has a group of individuals called the ALI-ABA who have been publishing CLE materials for more than 40 years. Recently they began to coordinate with PLI producing seminars and other resources. Currently they produce a two-day conference (or an online four course series) called Hot Topics in Contract Drafting which, not surprisingly, focuses on contract drafting, particularly the practical issues that arise in a broader set of contracts and the use of technology in contract drafting. They also produce a primer on contract drafting by Robert L. Kanter called Legal Drafting in Plain English that explains many other contracting terms. Additionally, and a topic that is relevant now, PLI is developing online contract drafting courses responsive to the FASB/IASB exposure drafts, the currently required International Financial Reporting Standards and their affect on U.S. accounting standards. PLI’s offering is primarily focused on public companies and includes how to draft and model impact contracts. A draft of the course outline is here and is evolving over the next few months as the deadline for comments draws near. The course will be presented in a full-day seminar format as soon as the FASB process concludes.
Conclusion to Deepening Your Contract Drafting Skills
Just like any skill set, you can’t expect to get it right every time the first time. You have to expect to have some growing pains and, if drafting contracts is important for your practice, you have to keep working on your skills. Even with all of the time and practice Tina Stark provided my students, I’m sure she would agree that in five years her skills will have continued to evolve.
The basic terms in a contract remain the same and most lawyers will use the same terminology, but thinking in terms of solving problems and evaluating those solutions takes practice . Writing clearly also takes practice. You should practice writing contracts to become familiar with the process and to develop your voice, which will develop over time. The more you practice, the easier it becomes to do all of these things and additional courses, high level internships, or mentoring will help you refine these skills.
I encourage you to review the exercise or do an entirely new one every month to keep refining your skills. Draft a new contract every month for different types of deals and make sure to get feedback from your colleagues.