Campbell University School of Law

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2005

The Contract Drafting Process: Integrating Contract Drafting in a

Simulated Law Practice
Charles C. Lewis
Campbell University School of Law, [email protected]

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Part of the Contracts Commons

Recommended Citation
Charles C. Lewis, The Contract Drafting Process: Integrating Contract Drafting in a Simulated Law
Practice, 11 Clinical L. Rev. 241 (2005).
Available at: https://scholarship.law.campbell.edu/fac_sw/8

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 THE CONTRACT DRAFTING PROCESS:
INTEGRATING CONTRACT DRAFTING IN
A SIMULATED LAW PRACTICE
CHARLES C. LEWIS*

Teaching contract drafting in the classroom has been trouble-

some ever since it became a part of the law school curriculum. Draw-
ing on the author's experience in teaching the course, as well as his
experience as a former practicing lawyer, this essay proposes that
contract drafting can be more effectively taught in the classroom by
using a simulation model that allows the students to learn contract
drafting as lawyers experience it in actual practice. In the simulation,
the students experience not only traditionalcontract drafting, but also
the interviewing, planning, and negotiating that are essential to suc-
cessfully drafting a contract. In addition, the students must deal with
the client and opposing counsel, as well as co-counsel and a senior
partnerassigned to the same project. While the students are handling
legal issues in their office files, they must also face ethical and mal-
practice issues, and even law office management issues.

INTRODUCTION

A law school course in contract drafting is a valuable part of the

curriculum. Judging from the contract drafting texts available today
for classroom use, the course covers a wide range of drafting topics'

* Professor of Law, Norman Adrian Wiggins School of Law, Campbell University. I

wish to thank Professor (formerly Dean) F. Leary Davis for introducing planning courses
into the law school's curriculum and Professor Richard A. Lord who first taught contract
planning and handed over to me the foundation of the course that I subsequently devel-
oped and now describe in this essay. I also wish to thank Dr. J. Stanley McQuade for
reading and commenting on an earlier version of the essay and Professor Dale A. Whit-
man, a former president of the Association of American Law Schools, who unknowingly
spurred me on to write this article when I read his article, "Clinics for the Rest of Us,"
published in the November 2002 AALS newsletter, in which he pleads for the development
of clinical and simulated clinical experiences in transactional lawyering to complement
presently existing litigation-oriented clinics. Finally, I wish to thank Wallace N. Tiffany and
W.N. Tiffany, Jr., whose influence over me as a young practicing lawyer is reflected in this
essay and continues with me today.
1 A drafting course might include topics such as the overall drafting process, the or-
ganization of a contract, drafting style and usage, rules of contract interpretation, concerns
about boilerplate and other standard provisions in contracts, a review of contract law,
drafting ethics, document review, drafting by computer, as well as how to write definitions,
how to avoid ambiguity, when to use vagueness, and how to use contract forms. See, e.g.,
SCOTT J. BURNHAM, DRAFTING AND ANALYZING CONTRACTS (3d ed. 2003); THOMAS R.
HAGGARD, LEGAL DRAFTING: PROCESS, TECHNIQUES, AND EXERCISES (2003); GEORGE

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 CLINICAL LAW REVIEW [Vol. 11:241

and provides law students with practical information they can use in
drafting legal documents, as well as a chance to practice what they
learn by reviewing or drafting documents in class exercises.
When taught by the traditional classroom method, 2 the course
provides a good foundation for a law student's education in contract
drafting. Although some courses in contract drafting may be limited
to teaching students how to put their client's agreement effectively on
paper, other courses may include some instruction on the planning
that needs to precede the actual drafting of the contract. But some-
thing is nevertheless missing. Teaching contract drafting, even with a
planning component, is teaching only a part of the broader process
involved in producing a written contract between parties. Teaching
only a part of the process does not provide the foundation students
need for understanding the entire process.
Teaching contract drafting in the traditional manner, by assigned
readings, classroom lectures and discussions, and even drafting exer-
cises, is not the most effective method to use. Instead, contract draft-
ing can be taught more effectively by integrating it into the context of
a simulated law practice. In an actual practice, the contract drafting
process begins with a client contacting the lawyer about drafting a
contract and ends sometime later when the parties come to an agree-
ment on the terms and sign the contract. 3 Between the client's initial
contact and the subsequent signing of the contract, far more goes on
than the mere drafting and planning of a contract, and much of what
goes on will profoundly influence the drafting of that contract. The
core of the drafting course that I teach is the interviewing for and the
planning, negotiating, and drafting of a relatively complex contract in
the context of a simulated law practice. By integrating contract draft-
ing into the context of a law practice, students learn contract drafting
as lawyers experience it, and they have an opportunity to understand
how it fits within the broader contract drafting process.
I took an elective course in contract drafting as a student in law
school. Some thirty years later, I only remember looking at various
types of contracts that were passed around in class as examples.
Surely there must have been more to it than that, but that is all that I
remember about the course. I do not remember using any part of the
course in my law practice after I graduated. I learned what I know

W. KUNEY, THE ELEMENTS OF DRAFTING (2003).

2 For an example of a traditional method of teaching legal drafting, see REED DICKER-
SON, THE FUNDAMENTALS OF LEGAL DRAFTING 359 (2d ed. 1986).
3 It could begin earlier if the parties begin negotiating the terms of the contract before
contacting the lawyers, and it could extend beyond the signing of the contract if the parties
subsequently modify the contract.

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 243

about contract drafting in the same manner that I suppose most law-
yers have learned it - in practice.
After practicing for a number of years, I became a law professor
and was eventually assigned to teach an elective contract drafting
course in the late 1980's. It was ironic that I was assigned to teach a
course that did little for me in law school or practice, and I began
teaching it with considerable misgiving.
I soon discovered that contract drafting had come a long way
since the late sixties and early seventies when I was in law school. The
drafting course as conceived by our then dean, F. Leary Davis, was
broader than a mere drafting course. It was labeled "Contract Plan-
ning," and it was designed to contain a planning component to accom-
pany the traditional drafting component of the course. The idea, of
course, was to get at the planning behind the drafting of the contract,
as well as at the actual drafting itself. The casebook used in the course
was a first year contracts casebook, but it included a section of cases
and materials that allowed the students to examine what drafters had
done wrong in drafting a contract. 4 This section was designed to make
the students think about what the drafters could have done to avoid
litigation or to bring about a more favorable result in litigation.
In addition to assignments in the casebook, the students were
given, as a practical exercise, a short summary of a proposed commer-
cial transaction with directions to plan and draft a contract satisfactory
to both sides of the contract. Two students were assigned to represent
each side of the contract. The students were directed to make up rea-
sonable terms for their clients and then negotiate those terms with the
other side. The goal of this simulated project was to draft a contract
that both sides could recommend to their clients for signing.
I taught the class by this method for several semesters before I
decided to make the course more relevant to practice. My solution
came partly from my experiences as a professor when I taught law
school courses or judged competitions that used simulation to teach
lawyering skills. In particular, I had observed how client counseling
competitions included the simulation of interviewing and counseling,
often with a view towards drafting a document for the client, and I
began to realize how simulation of an interview might help in teaching
the contract planning process.
My solution also came from my experience in teaching a law of-
fice management course that reminded me of the experiences I had as
a new lawyer. At that stage of my career, I tried to work successfully
with many different people, some of whom naturally represented in-

4 IAN R. McNEIL, CONTRACTS: EXCHANGE TRANSACTIONS AND RELATIONS (2d ed.

1978).

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 CLINICAL LAW REVIEW [Vol. 11:241

terests adverse to the interests of my clients. I struggled to get my

work done competently and on time and to keep my files documented
and up-to-date. I worried about doing something legally or ethically
wrong and, as a consequence, cutting short my legal career. These
memories reminded me that the contract drafting process does not
take place in the serene isolation of a private office but instead in the
hurly-burly of law practice.
As a result, I decided to teach contract drafting by integrating it
within the setting of an ongoing law practice, where the lawyer has a
client to be interviewed, consulted, advised, and kept up to date, as
well as a senior partner who supervises the work, an associate with
whom to work, and opposing lawyers with whom the contract must be
negotiated successfully. I wanted the students to confront and learn
to handle the legal, ethical, and other issues that confront practicing
lawyers. In short, I wanted to teach contract drafting the same way I
learned it - not by reviewing drafts or drafting them in class, but by
drafting a contract in the same fashion as a lawyer in practice.
Instead of having students make up the facts for the project as in
the previous course, I would require that they wrestle the facts out of
a simulated client interview, just as practicing lawyers must do. In-
stead of having students draft in class a contract conforming perfectly
to a client's interests, I decided to put the students through a simu-
lated negotiation process that involved opposing lawyers (students)
representing the other client's interests, a process that would result
not in the perfect contract but in the best contract under the
circumstances.
I also wanted the students to experience those working relation-
ships that shape their work in the law practice. In the existing course
design, they experienced working with another person in the project
because I assigned two students to represent each client, but I also
wanted them to experience a working relationship with a senior part-
ner who assigns and supervises their work, discusses issues and possi-
ble solutions, and reviews and critiques contract drafts. I also wanted
them to have a continuing relationship with the client and also with
the lawyers (students) representing the client on the other side of the
contract.
Finally, I wanted the students to use an office file to document
the work that a practicing lawyer does in planning, drafting, and nego-
tiating a contract. I wanted the file to reflect their working relation-
ship with their senior partner, their student partner, the client, and the
opposing lawyers, to show how the students handled the ethical and
legal issues that inevitably arise in the drafting of a contract, and to
reflect how they protected themselves from the threat of legal mal-

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 245

practice or ethical malfeasance. By all of these means, I hoped to in-

tegrate contract drafting into the broader context of the practice of
law.
In this essay, I describe what I do in class to prepare my students
for the simulated drafting project that forms the core of the course. I
then describe the simulated project in each of its phases and explain
how each phase of the project integrates contract drafting into the
context of a law practice. Finally, I point out the educational benefits
that are derived from each phase and describe a number of other edu-
cational benefits that appear to flow from the simulated project as a
whole rather than from any individual phase of the project.

I. PREPARING FOR THE SIMULATED DRAFTING PROJECT

The course is a two hour course. Instead of teaching it two hours

a week, however, I teach it three hours a week for two-thirds of the
semester, leaving the last third of the semester with no classes. By
concentrating the class hours during the first part of the semester, I
am able to teach the students what I want them to do in the simulated
project. Class hours at the end of the semester have less value since
by that time the students need to know how to do the work necessary
to complete the simulated project. I do, however, spend considerable
time during the last third of the semester reviewing their files and ad-
vising them as they complete the project. The students' work in the
project determines their course grade; no exam is given.
I begin the course by teaching an interviewing component since
no drafting can take place until the lawyer interviews the client and
elicits the facts needed to plan, negotiate and draft the contract. In
teaching this component, I assign materials on interviewing for the
students to read outside of class, and I then talk about interviewing in
class. 5 I next have the class apply what they have learned by inter-
viewing me as I play the role of a client who is about to make a busi-
ness loan to a relative. 6 The students use the three-stage interviewing
process 7 that we have discussed in class and which they will use again
in the simulated project. During the course of the interview, I occa-
sionally step out of the client role to connect what they have learned
in class with what is taking place at that moment in the interview.

5 I emphasize to the students that this course is not a course in interviewing, and I
encourage them to take a course in interviewing and counseling, either in the law school or
in a continuing legal education program.
6 1 play the part of a blue-collar worker who has agreed to make a substantial loan to a
nephew who will use the money to start a business that is unlikely to succeed.
7 DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING 53-
54 (1977).

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When the interview is over, the students must use their interview
notes to prepare a detailed summary of the facts they have learned in
the interview.
The students must then analyze those facts in the planning com-
ponent of the course. To prepare the students for this component, I
introduce in class the classic planning questions that ask where the
client wants to be, where the client is now, and what must be done to
get the client where he wants to be. 8 In determining the answers to
the first and second questions, the students must identify the goals of
the client and then assess the client's strengths and weaknesses in at-
taining those goals. In determining the answer to the third question,
they must identify the performance terms that describe what the par-
ties must do in carrying out their obligations under the contract. In
addition, the students must predict any obstacles to carrying out those
performances 9 and suggest how drafting might eliminate those obsta-
cles. They must foresee any terms needed in the agreement to protect
the client in the event of a breach of a term of the contract, or to
protect the client against some external risk that may threaten the
contractual arrangement. 10 I also ask the students to list any ethical
issues that arise from the interview, any legal concerns that need to be
resolved by legal research, and the advice they should give to the cli-
ent based upon their planning.
After learning about the planning component in class, the stu-
dents must use what they have learned by analyzing the facts they
have elicited from me in the interview. They individually review the
facts outside of class and identify the client's goals, the client's
strengths and weaknesses, and the performance terms needed in the
contract. They review the performance terms to suggest any necessary
adjustments to avoid any obstacles to the parties' future perform-
ances, and they set out the terms that will protect the client in the
event of breach. Finally, they list their ethical and legal concerns and
their advice for their client. We discuss their planning work in class,
and the students eventually recommend that the client should use a
negotiable promissory note to document the proposed loan to the rel-
ative. Although we have not yet talked about drafting in class, I have
each student draft a promissory note that reflects the planning we pre-
viously discussed in class.
After the students have drafted their notes, I hand out in class a
note that I have drafted so that the students can compare their notes

8 F. Leary Davis, Strategic Planning Using a Computerized FinancialModel, Part 1, 8

LEGAL MGMT. 24 (1989).
9 McNeil would likely label this "performance planning." McNEIL, supra note 4, at 24.
10 McNeil would likely label this "risk planning." See id. at 25.

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Spring 2005] Integrating ContractDrafting in a Simulated Law Practice 247

to mine, and we discuss each provision of my note from a planning

rather than a drafting perspective. For example, the client had sug-
gested in the interview that the note should be payable at the end of
the year in one lump sum. Based on the planning by the class, how-
ever, we typically decide to draft our note as an installment note with
equal monthly payments spread out over a one year term. The class
suggests this change in order to make it easier for the relative to repay
the money, and, at the same time, to allow the client to get most of the
money back before the end of the year. Also, since we have drafted
the note as an installment note, we include an acceleration clause in
the note to protect the client if the relative defaults on an early install-
ment and the client wishes to sue immediately for the full amount of
the note rather than waiting for each payment to become due. By first
planning the note and then drafting its terms based on that planning,
the students are able to understand how terms are drafted or added to
a contract for particular reasons and not just because a form contract
uses the term or the term appears important to the drafter.
While planning the terms of the promissory note, the students
realize how much law is involved in drafting a simple promissory note.
They must face the concept of negotiability, along with acceleration
clauses, attorney fee clauses, waiver clauses, and prepayment clauses,
and also consider the effect of usury on the promissory note. They see
how the planning component and the knowledge of law affect the
drafting of a contract, and they realize that they cannot draft a con-
tract without a good working knowledge of the law involved.
The next component for the class is the negotiation component. I
assign the students some materials to read on negotiation before class,
and then we talk about negotiation in class." I then have the students
apply what they have learned in class by requiring them to negotiate
the terms of a simple commercial transaction outside of class in a one-
on-one negotiation. For this practice negotiation, I give each student
a fact sheet setting out the information needed for a negotiation with
another student who represents the other side. Before the negotiation
begins, I require the students to analyze their facts in the light of the
planning component and to give the opposing student a letter setting
out the performance terms for the contract. With their planning fresh
in their minds, they then negotiate those terms outside of class and
prepare a summary of the negotiation. Since the students have nego-
tiated the same commercial transaction, we discuss the results of their
negotiation in class. In that discussion, I connect what they have

11As I do in the interviewing component, I emphasize to the students that this course is
not a course in negotiation, and I encourage them to consider taking a course in negotia-
tion, either in law school or in a continuing legal education program.

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learned in class to what took place during their negotiations. I also

point out how the use of planning prior to the negotiation, as in identi-
fying the client's goals, strengths and weaknesses, and performance
terms, should have helped the students in preparing for negotiation
and in the negotiation itself.
We next move to the drafting component. The students are as-
signed readings from the drafting text used in the course, and they do
a drafting exercise on their own to practice what they have learned. 12
The focus of discussion in class, however, is on a contract that incorpo-
rates many of the drafting issues raised in the assigned readings. The
students first review the contract on their own, identifying issues and
correcting problems raised by those issues, and then we go over the
contract in class. Each issue raised in the contract provides a way for
me to talk about good drafting in the light of the assigned readings.
After completing the drafting component in class, the students
are then ready for the entire simulated project. In my course, how-
ever, I allow the students to begin a phase of the simulated project
immediately after we have covered the applicable component for that
phase in class. For example, when we finish the interviewing and
planning components in class, the students then start the interviewing
and planning phase of the simulated project, while I go on to the ne-
gotiation component in class. When the negotiation component is
completed in class, the students begin the negotiation phase of the
project, while I go on to the drafting component in class. As a result,
the students engage in each phase of the project when the classroom
instruction on that phase is still fresh in their minds. The simulated
project has four phases, and they are described below.

II. THE SIMULATED DRAFTING PROJECT

To begin the simulated project, I divide the class into teams of

two. Each team is paired with another team so that each team can
represent a client on opposite sides of the transaction. I limit the class
to a maximum of 24 students, so I have no more than 12 teams of two
students negotiating six contracts at a time. I use no more than three
factual situations, so that in managing six contract negotiations, I am
working with only three sets of facts. Since I use more than one simu-
lation, students can play the role of the client in a simulation in which
they are not assigned a lawyer role.

12 1 use the CALI© lesson entitled, "Drafting a Contract - the Sale of Goods" for the
exercise. This interactive lesson works well as an outside assignment since it provides its
own feedback.

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 249

A. Phase One: Interviewing and Planning

Prior to beginning the interview, the students receive a memo set-
ting out general guidelines to follow in conducting the interview. For
example, the interviewed students must, within reason, answer only
the questions asked and not immediately reveal all the information on
the fact sheet as a result of an overly broad question. If they are
asked a question that is not answered on the fact sheet, they are in-
structed to say, "I don't know." The interviewing students should not
ask, "What terms do you want in the contract?" or "Do you want a
liquidated damage clause?" Instead, they should determine what
clauses should be included based on the facts they get from the inter-
view. Both interviewing and interviewed students must use the three
stage interviewing process practiced earlier in class, but the interview-
ing students may also use any appropriate checklist of questions or
even a form contract to ask other questions.
To begin the interview, each team is given an assignment sheet
that provides a brief outline of a proposed contract. As an example,
one team gets an assignment sheet explaining that their client manu-
factures dump trucks and is interested in obtaining a steady supply of
diesel engines for their trucks from an engine company they have con-
tacted but never dealt with before. The team on the other side gets
the assignment sheet explaining that their client manufactures and
sells diesel engines and has been contacted by the dump truck com-
pany about buying diesel engines to install in its trucks. Each team
must then interview its client to learn the additional facts relating to
the proposed contract.
I give the students playing client roles a fact sheet that contains
the information necessary to fill in most of the gaps in the facts con-
tained in the assignment sheet. The fact sheet for the dump truck
manufacturer provides specific information about the client, its manu-
facturing facilities, its problems with its present supplier of engines,
what it expects to gain in a contract with a new supplier, and some
general information about the potential new supplier. The fact sheet
for the manufacturer of diesel engines provides similar information
for the seller. The fact sheets reflect the information that might be
gained in a typical first interview and provide ample facts for the in-
terviewing students to use in the subsequent planning component of
the simulated project.
The interviewing time is limited to one hour. If the interviewing
students finish the interview in forty minutes, they may schedule a
follow-up interview for the remaining time to ask questions occurring
to them after an initial interview. At the end of an hour, or earlier if
there are no more questions, the interviewing students may ask the

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interviewed student what facts they missed. 13 If the students are still
not convinced that they have all the facts they need, they then come to
see me, and I take up the role of the client to answer their questions.
I make the interview as realistic as possible, and thus I do not
include in the fact sheet all the facts needed for drafting the contract.
As a result, the interviewing students must experience the "I don't
know" answer that occurs so frequently in actual interviews. For ex-
ample, each student interviewed is an agent of a business entity re-
ferred to in the fact sheet as a "company." No information is given on
the fact sheet as to what kind of business entity the company is, nor is
there sufficient information for the interviewing students to conclude
that the agent has authority to act for the principal. The interviewing
students must then decide whether the missing facts are important
enough to pursue. If they decide they need the additional facts, they
must come to me for that information since I have become their client
at that point. By the end of the interviewing process, they should un-
derstand that what they learn in an initial interview does not typically
complete the interviewing process and that they alone have the re-
sponsibility to pursue any loose ends from an interview.
As in real life, some facts obtained in the interview appear irrele-
vant to the students and are frequently omitted from any documenta-
tion in the file. As the students continue in the project, they may
affirm that conclusion, but, again as in real life, some facts that appear
irrelevant may later turn out to be important. In one fact situation, I
provide facts indicating that no bulk transfer will occur in the transac-
tion. Since most students have never heard of a bulk transfer, or the
problems it can create, the facts appears irrelevant to them. Once the
issue of a bulk transfer is raised and the students do some legal re-
search, however, those facts become relevant in determining whether
the buyer should be protected in the contract by terms addressing the
bulk transfer. In emphasizing the need to play it safe in these situa-
tions, I have instructed the students to be inclusive rather than exclu-
sive in taking notes during the interview because they cannot always
tell what facts may be important in the future as the transaction
14
develops.

13 I allow this release of information because it is important that the students get all the
information to plan the contract effectively; it also gives the interviewing students some
feedback about how effectively they conducted the interview. In addition, the students
representing the other side do not suffer because of poor fact gathering by the opposing
side. Finally, I learn what the interviewing students missed in the interview because the
interviewed student returns to me the fact sheet with the missed information highlighted.
14 I find that students are inclined to exclude any information that appears irrelevant
for their present purposes. That inclination may come from classroom professors seeking
only the key facts in a case, and from the emphasis on factual brevity in everything from

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 251

All of my fact sheets refer to a letter or memorandum indicating

that the parties to the proposed contract have communicated with
each other prior to any legal representation. I expect the students to
see the need to have a copy of that letter or memorandum so that they
will not later be blindsided by some understanding or agreement the
parties made prior to representation. In class, I talk about a lawyer's
need to know what the parties have said to each other prior to legal
representation, and I tell the students that including the letter or
memorandum in their file indicates to me that they understand this
point. Some students believe they have accomplished this objective
by merely. receiving and filing the letter in the file; actually reading the
letter may not seem important to them. As a result, I emphasize in
class the necessity of reading carefully everything relating to the rep-
resentation, and I include some facts only in the letter or memoran-
dum to drive home this point.
I even purposefully allow misinformation to get into the fact
sheets, since that is an unfortunate reality of the practice of law. As a
result, an interviewed student unknowingly gives some incorrect infor-
mation that I have included on the fact sheet, and the interviewing
students must discover and correct this information as the project pro-
ceeds. For example, the fact sheet for the buyers may indicate that the
sellers have excess inventory in the amount of 1.5 million units for
immediate sale, but in reality the seller, as reflected by the seller's fact
sheet, has 7.5 million units for sale. The interviewed student, playing
the role of the buyer, unknowingly gives the incorrect lower figure,
but the interviewed student also mentions in the interview that the
sellers have communicated their offer to the buyer by letter. If the
students playing the lawyer role ask for a copy of the letter, the inter-
viewed student does not have it. After the initial interview is over and
I have assumed the role of the interviewed student, I will give a copy
of the letter to the students playing the lawyer role if they ask me for
it when they come to me seeking information omitted from the inter-
view. If they read the letter, they will discover the higher figure and
realize they need to go further in ascertaining the correct figure and
what amount the buyer really wants to buy.
At the point in class when this misinformation should have been
discovered, I talk about the problem of miscommunication and the
deleterious effect that the resulting misinformation can have on a
transaction. I warn the students that miscommunication will creep
into the planning and negotiation of any contract. As in real life,

class briefs to moot court briefs. Although brevity is important in those contexts, it is
certainly less so in a contract drafting situation that unfolds slowly in the present and ex-
tends to performance in the future.

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some students do not discover the misinformation until after the plan-
ning is done and the negotiations have started. Although I do not
allow a failure to discover misinformation to jeopardize the success of
the students' project, they nevertheless learn quickly the importance
of working not only with complete facts, but also with accurate facts.
After the students have completed the interview, they prepare a
summary of the facts and place it in their office file, along with the
notes taken during the interview. They then analyze the facts in light
of the planning component and document that planning in a memo-
randum placed in the file. Finally, they draft and place in the file a
letter setting out for the other side their proposed performance terms
for the contract.
At this point, the students turn in their office files, and I, in the
role of senior partner, critique them and return them to the students.
The students must then review my comments in the file and respond
to my critique by taking any corrective action. My critique might chal-
lenge the accuracy or completeness of the facts or address the shallow-
ness or lack of detail in the planning process. I might ask the students
to provide missing documentation or to revise inadequate documenta-
tion. I invite the students to meet with me if they have any questions
or concerns about my comments.

B. Phase Two: Negotiation

The negotiation phase of the project begins as each side sends the
other side the letter setting out the performance terms they want in
the contract. After both sides have reviewed the proposed terms, they
should have a good idea of what the other party wants and how far
apart they are on the terms of the contract. The two sides must then
come together for the first of two negotiations of the contract terms.
The facts from the interview provide the two sides plenty of terms
to negotiate. The students representing the buyers will know the type
and quantity of goods required by the buyer and a price range that the
buyer will be willing to pay for the goods. The students representing
the seller will know the price range acceptable to the seller for the sale
of goods and the type of goods available, as well as the production
capacity of the seller's manufacturing facility. The students must ne-
gotiate not only those terms, but also other terms relating to the per-
formance of the parties, such as when the goods must be delivered and
in what quantities, how and where the goods will be transported to the
buyer and who will pay for the transportation, and how and when the
buyer will pay for the goods. The duration of the contract will be
negotiated and, depending on the facts from the interview, perhaps an
option to renew or an early termination clause also may be

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 253

negotiated.
I allow the students only an hour and a half to negotiate the
terms, even if they cannot completely finish negotiating the terms dur-
ing that time. Each side then orally summarizes for the other the pro-
gress they believe they have made. In order to document their work
for this phase, the students must include in their office files their nego-
tiation notes and a summary of the negotiation. The summary must
record the agreements and disagreements of the parties on the per-
formance terms, and it must also include an evaluation of the negotia-
tion itself. In the evaluation, the students assess whether the goals
identified in the planning component were achieved, and if not,
whether the failure to achieve the goals was a result of a weakness
identified in the planning component or perhaps a strength that was
not properly utilized.

C. Phase Three: Drafting

After completing the first negotiation, the students are ready to

begin drafting the first of four drafts of the contract. Since the goal of
the first negotiation was to agree on the performance terms of the
contract, the students' goal in the first draft is to put those terms down
on paper. The two sides, working independently of each other, must
draft a contract from scratch or use a form contract that helps them
put the negotiated terms in the first draft of the contract.
I allow the students to use contract forms in the drafting phase.
The use of forms is a reality of law practice, and we have previously
discussed in class the benefits and dangers of using forms. When stu-
dents use forms in this phase, it allows me an opportunity to empha-
size again the dangers of forms when, for example, they incorporate
provisions obviously detrimental to their client's interest or include
two merger clauses using different words to say the same thing. In
addition, many forms do not follow the drafting rules I teach in class,
so the students learn to modify the forms using the rules they have
learned in class. I also include in the facts of each project the need for
some unusual provisions that make it difficult for the students to rely
entirely on any contract form. As a result, the students' drafts are
usually a combination of some drafting from scratch and some draft-
ing from a form.
After the first draft is completed, the students prepare a letter to
their client setting out their progress in the negotiation. In the letter,
the students must list the client's original goals from the planning
component, indicate to what extent they have reached those goals in
the first draft, and, if they did not meet their goals, assess why they did

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not. 15 The letter also encloses a copy of the first draft of the contract
for the client's review and comment. Finally, the students prepare a
proposed transmittal letter that will accompany the draft of the con-
tract when it is subsequently sent to the students on the other side.
All of these documents are place in the office file and reviewed
by the senior partner. I have forewarned the students that I will read
their contract as a hostile reader, much as a lawyer for the other side
might do in search of a basis for litigation. I also review the letters to
the client and to the opposing students, marking them up as necessary.
I then send the office file back to the students with specific instruc-
tions to review each of my comments and make appropriate correc-
16
tions or changes.

D. Phase Four: More Draftingand Negotiating Leading

to Final Agreement
After receiving their office files from me, the students begin
working on a second draft of the contract in response to my com-
ments. Since the first draft incorporates only the performance terms,
the students must now concentrate on adding to the second draft addi-
tional terms to protect the client in the event of breach or from some
other external risk.
As part of the planning component of the course, we have talked
previously in class about specific clauses that might be added to any
contract to protect a client from these risks, and I ask the students to
consider adding these clauses, if they are applicable, to the contract
they are drafting in the simulated project. The facts elicited in the
interview provide opportunities for the students to put many of these
clauses in the contract. For example, the goods sold under the con-
tract may be transported hundreds of miles to the buyer, and that fact
raises the issue of risk of loss to both parties if the goods should be
destroyed in transit. The students on both sides should realize that a
risk of loss clause ought to be included in the contract and draft an
appropriate clause to protect their client.
In addition, I send the students letters or memoranda from their
clients that raise issues of risk and ask how it should be handled in the

15 I hope that a comparison of the goals from the planning component with the goals
achieved in the first draft will force the students to see the connection between setting
goals in the planning component and actually achieving those goals in the drafting of the
contract.
16 1 do, however, allow the students to challenge any of my comments if they believe
that what they have done is correct or appropriate under the circumstances. For example,
they may use a vague term in the contract when I think that they should have used a more
specific term. However, if they realized that the term was vague but they had a good
reason for using a vague rather than a specific term, then I will not require the change.

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contract. The seller may write its lawyers about its warranty liability
to the buyer for the goods and inquire if there is some way to limit
that liability in the contract. The buyer may write its lawyers about its
commitment to supply the goods to third parties and ask what hap-
pens if the seller does not deliver sufficient goods to satisfy those com-
mitments. The students must then face the issues of warranty
disclaimers and limitations of damages, and draft appropriate clauses
to protect their clients.
When the students finish the second draft of the contract, they
place it in the file and send a copy of the draft to the other side, along
with a letter of transmittal that specifically mentions the addition of
any terms that the parties have not yet negotiated. After each side
has compared their second draft of the contract with the second draft
from the other side, the students are ready for the second and final
negotiation.
In this negotiation, the students must agree on the terms that
both sides can recommend to their clients. That agreement entails
ironing out any differences in the performance terms appearing in the
drafts and in the performance terms they orally agreed to in the first
negotiation. Even if the substance of those terms is essentially the
same in each version of the proposed contract, the wording in each
contract will likely be different, and the students will not only have to
agree on the terms but also on the exact words to be used. In addi-
tion, the students must negotiate the additional terms added in the
second drafts and agree on which terms should be included and the
exact wording to be used for each.
In playing the various roles of client or senior partner, I can help
broker an agreement when both sides refuse to budge on either the
terms or the exact wording of the contract. As the senior partner, I
may advise one side that the legal risks they fear are minimal and that
they should accept the demands of the other side, and I advise the
other side to stand firm on their demand. As a client, I may tell one
side to accept the demands of the other side because the client is will-
ing to concede that issue in order to have a contract, and I tell the
other side that the issue is a deal breaker for the client and ask the
students not to budge.
After both sides reach agreement, they must then jointly prepare
a third draft of the contract. In jointly preparing a third draft, the
students may adopt one side's draft as the beginning point for a third
draft or they may use parts of both second drafts to construct the third
draft. In either case, the students must agree on all the terms, prepare
a third draft to reflect their agreement, and place the third draft in
their files. The students must also place in their files their negotiation

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 CLINICAL LAW REVIEW [Vol. 11:241

notes from the final negotiation and a summary of that negotiation,

along with a letter to the client that explains the progress made in the
negotiation and includes a copy of the third draft. This letter to the
client must also explain the benefits and disadvantages of the contract
and invite the client to go over the terms with his lawyers.
Each side turns in their office files at this point, and I, as senior
partner, review the files for the third time. I check the second draft to
be sure that the students have revised the contract consistent with my
comments and that they have appropriately added the additional
terms to provide for remedies and protect against other risks to their
client. I read the third draft of the contract more critically than I do
the second draft since the third draft is the joint work of both sides
and represents the agreement of the parties.
After I return the files to the students, they must respond to each
comment on the third draft by revising the contract in a final draft. I
do not make them negotiate this fourth draft with the other side be-
cause time is usually running out as the semester nears its end, but I
review it to see that the students have made the changes to reflect my
comments on the third draft. They may, however, refuse to make a
particular revision as a result of my comments if they put in the file a
memorandum justifying why no change should be made. This fourth
phase completes the simulated drafting course as I presently teach it.
If there is a negative to teaching the course by simulation, it is the
time and effort involved for the professor. Except for the assigned
drafting textbook and other assigned readings, the professor must de-
velop the materials for the class and continually revise them over
time. The students' files must be promptly reviewed, critiqued and
returned to the students so that they can complete their work in the
project before the semester ends. At the same time, the professor's
classroom responsibility in the course continues for much of the se-
mester while the professor and students are working on the project,
and there are countless conferences with the students to answer ques-
tions or counsel them about the project.
The time and effort devoted to teaching the simulated course,
however, is lessened somewhat by basing the students' grades for the
course only on their work in the project and not on an exam given at
the end of the course. The time and effort are also lessened by limit-
ing class size, using technology to communicate with the students
outside of class, constantly reviewing and revising the course goals in
light of the course requirements, and thinking about ways to increase
the efficiency and effectiveness of both managing and teaching the
course. To the extent a simulated course still requires much time and
effort from the professor, the course nevertheless provides the stu-

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Spring 20051 Integrating Contract Drafting in a Simulated Law Practice 257

dents with many benefits that they would not otherwise receive in a
traditional drafting course.

III. BENEFITS OF AN INTEGRATED APPROACH To

CONTRACT DRAFTING

An integrated approach to contract drafting has many benefits. It

would be easier for me to give a fact sheet directly to the students,
rather than putting them through the extra step of the interview, but
that would not reflect the reality of law practice. The experience
gained from conducting a simulated interview to gather the facts with
which to draft the contract is far more instructive than merely handing
the students a fact sheet. If nothing else, the students realize that the
facts in the real world come from the client and not from a law profes-
sor in the form of a fact sheet. 17 They also realize that it is their re-
sponsibility in the interview to elicit the correct facts and the complete
facts, and if they do not pursue those facts, no one else will do it for
them. At the same time, they realize that if they do not have the
interviewing skills they need to elicit the facts effectively from the cli-
ent or a sufficient knowledge of applicable law, they will not be suc-
cessful in gathering the necessary facts. If they do not get the facts
they need, their goal of helping the client in the planning component
is likely to be unattainable.
The students learn that the interview can be a complex process
that takes time and effort to master. They experience for themselves
how hard it can be to get the facts from a person who does not know
what to tell the lawyer, does not have all the information the lawyer
needs, and may be misinformed. They also experience the real-world
feeling of discomfort that arises from wondering if they really have all
the facts from the client, particularly when they know that I purpose-
fully leave out some important information.
Finally, when the students get to the planning component of the
project and begin to analyze the facts they have gathered from the
interview, they realize that the gathering of facts in the interview is the
foundation upon which rests the success of the entire task. Without
the facts, they cannot do the planning necessary for negotiating and
drafting the contract, and they cannot get the facts unless they have a
good understanding of the interviewing component.
As valuable as it is for a student to experience interviewing an-
other person, it is also a valuable experience for a student to be the
person interviewed, and the simulated project provides the opportu-

17 These facts can come from sources other than the client, as in the situation where
one lawyer in the firm conducts the interview and another lawyer drafts the contract.

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nity for some students to be interviewed as the client. I encourage the

students who are interviewed to reflect on how effective the inter-
viewing process has been in getting information from them and to use
any insight they gain to make themselves better interviewers. For ex-
ample, if the students interviewing them are rude, impatient or arro-
gant, they will quickly learn how not to act in an interview. I instruct
the students who are interviewed to provide the interviewing students
who request feedback with their insights about the effectiveness of the
interview.
Contract drafting by itself could be taught by having the class re-
view and revise poorly drafted contracts or by drafting from scratch
various types of clauses or entire contracts. Contract planning, how-
ever, cannot be taught unless the students are provided with enough
facts to analyze so that they can come up with a plan for their client.
When the students know about their client's wants and needs, as well
as strengths and weaknesses, in contracting with another party, they
will have the facts to use in planning a contractual arrangement. In
doing so, they will be able to practice using those facts, together with
their knowledge of the applicable law, to negotiate and draft a con-
tract to achieve favorable results for their client. The interviewing
component of the project provides the students with an array of facts
to analyze in the planning component of the project, and the project's
four phases guarantee that the planning component precedes, as it
should, the actual negotiation and drafting of the contract.
Of course, the planning component could be taught and practiced
with a fact sheet handed directly to the students, and the interview
component skipped entirely, perhaps saving more time for additional
planning and drafting exercises. Nevertheless, the students benefit
from understanding the connection between the interviewing and the
planning components. After practicing the planning component in
class, the students better understand the type of information they
need from a client in order to plan a contract. When students are
familiar with the information they will need in the planning compo-
nent, they can ask the questions in an interview that will produce the
information they need for planning the contract. In short, the better
the planner, the better the interviewer, and the better the interviewer,
the better the planning can be. Interviewing skills and planning skills
go hand in hand; they should be taught together and experienced by
the students before they begin to negotiate or draft the contract.
Perhaps the most important point the students learn from the
simulated negotiation is that what they as lawyers want in the contract
will not necessarily be what they get. Although they may plan care-
fully and draft perfectly to obtain certain provisions for their client,

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 259

they soon realize that they may not in the end be able to keep every-
thing they want in the final version of the contract because of the give-
and-take of the negotiations.
Without having to conduct a negotiation, the students in a draft-
ing class could easily conclude that the contract that they draft in class
will be the end result and will achieve a complete victory for the cli-
ent's interest. The negotiation process and the conflicting interests of
the opposing client quickly teach them otherwise. In the project, they
prepare the second draft exactly as they and their client want it, but
after the final negotiation, they must prepare a third draft that accom-
modates the concerns and interests of both sides.
The simulated project also shows the students the importance of
their negotiation skills in getting the terms they want in the contract.
Telling students in class about the importance of their negotiation
skills in drafting a contract will do them little good; they will merely
nod their heads in agreement and smile pleasantly. The experience of
actually negotiating the terms of the contract, however, with the re-
sulting feelings of exhilaration or disappointment, depending on the
outcome of the negotiation, drives the point home. The process helps
them understand the importance of negotiating skills in achieving the
terms desired by the client.
The negotiation process also rids the students of the common
misconception that one contract fits all situations. Since the fact
sheets used in the interviews provide for conflicting interests between
the parties and since each side advocates in the negotiation for the
interests of its client, the students are able to see how contracts can be
drafted to favor one side or the other. For example, students repre-
senting a buyer may want a clause keeping risk of loss on the seller
until a late point in the transaction, while the students representing
the seller may push a provision to shift risk of loss to the buyer at an
early point in the transaction. One side may try to obtain a force
majeure clause to protect its client in the event of a particular occur-
rence, 18 while the other side may reject that clause and insist instead
on a provision requiring absolute performance in the event of that
occurrence. Since the negotiation, rather than the boilerplate terms of
some "standard contract," will determine what clauses are included in
the contract, the students begin to realize that they have considerable
latitude in proposing and negotiating the provisions of a contract to
suit their client, and they should not limit their efforts to the terms
included in a formbook.
The students are also able to understand the subtle difference be-
18 A force majeure clause lists the circumstances that excuse a party's nonperformance.
BURNHAM, supra note 1, at 129.

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tween negotiating the terms of a contract and negotiating the wording

of the terms of a contract. In the project's first negotiation, the parties
merely agree orally on the proposed performance terms but not on
the precise wording of those terms. In the final negotiation, however,
the parties must not only agree on the terms in the third draft but also
negotiate the precise wording of those terms.
At the stage when students exchange different versions of the
same contract, 19 students are able to see for themselves that they have
more control over the language of the contract if their draft is used as
the basis for the joint draft. If the students instead compromise and
take provisions from both drafts, not only do they find themselves less
in control of the language, but they also experience the problem of
keeping the language of the final draft internally consistent.
In preparing four drafts of the same contract, the students get
used to drafting and redrafting the language of a contract, a key ele-
ment in good drafting that is frequently avoided by impatient students
and lawyers alike. In reviewing and perhaps even disagreeing with the
senior partner's criticism, as well as receiving criticism from their
working partner and the team on the other side of the contract, the
students get used to criticism of their work and hopefully learn to take
it in stride and to profit from it.
The negotiation and drafting phases of the simulated project also
allow the students to make practical use of the work they have done in
the planning component. It is, of course, the planning component that
gives direction and purpose to both negotiation and drafting. While
many students may intellectually accept the need for some type of
planning before negotiation and drafting, in the simulated project they
can experience the advantage of having a plan to guide them through
the give-and-take involved in both negotiating and drafting the terms
of the contract.
In addition to allowing the students to practice the skills involved
in the contract drafting process, the integrated approach to contract
drafting also places the students in a simulated law practice where
they must complete their project under the same conditions that prac-
ticing lawyers must work in serving their clients. This approach then
exposes the students not only to interviewing, planning, negotiation,
and drafting but also to professional ethics, file keeping (both as a
means of protecting the lawyer from malpractice claims and as an or-
ganizational tool), law office management, and the importance of dif-
ferent professional relationships.

19 This is the draft that each side prepares independently of the other side, and the
teams must consider both versions of the second draft to prepare the third draft that both
sides must later approve.

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 261

Any contract drafting course should include an ethical compo-

nent, and the simulated project allows many opportunities for the stu-
dents to apply ethical rules to facts arising out of the representation of
the client. Although the students may know the ethical rules, they
sometimes have a hard time seeing an ethical issue when it actually
confronts them. The simulated project gives them the experience of
confronting ethical issues in context and handling them as a practicing
lawyer might.
In class, we talk about ethics and work through a number of the
rules as they apply to contract drafting. I later provide the class an
ethical checklist setting out briefly the rules that might possibly come
into play in a contract drafting situation. The students must place this
checklist in the file for the simulated project and note on the checklist
whenever an ethical rule might be implicated. Throughout the pro-
ject, I then introduce the facts, either in the fact sheet or through
memoranda or letters to the students, that bring into play many of the
ethical rules and force the students to handle ethical issues.
As an example, before a lawyer starts any work, the lawyer must
consider whether a conflict of interest could prevent representation of
the client. In class, we talk about what a lawyer does in a conflict of
interest check to comply with the rules of professional responsibility.
A client information sheet, filled in partially by the interviewed stu-
dent, requires that a conflict of interest check must be made, and the
students must record on that sheet exactly what they did in the con-
flicts check, what they found, and what they concluded, and they must
promise to evaluate any situations that develop that may involve a
potential conflict. After the project begins, the students receive a
memorandum from the senior partner that his son is working in the
law firm representing the other side and that the representation of the
client must stop immediately. The students must then resolve this eth-
ical issue before continuing their representation, stating the correct
rule and their resolution of the issue in a memorandum placed in the
file.
In another situation, the senior partner asks his associates to in-
clude a certain clause in the client engagement letter that attempts to
limit prospectively the firm's malpractice liability. 20 When the stu-
dents spot the issue and refuse to include the clause, the senior part-
ner tells them that they will be fired if they do not include the clause.
He suggests that they can protect themselves by putting a note in the
file that they disagreed with the senior partner and included the clause
only because the senior partner demanded it. Now the students must

20 MODEL RULES OF PROFESSIONAL CONDUCr R. 1.8 (2003).

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worry about their responsibilities as subordinate lawyers and whether

they must report their senior partner's conduct. 21 The students must
then resolve these ethical issues and document their decision in a
memorandum placed in the file.
In a traditional drafting course, many ethical rules would proba-
bly never be considered since the facts are simply not present to raise
the issues. When contract drafting is taught by integrating it into the
law practice, the interview produces abundant facts that raise ethical
issues that relate directly to drafting a contract, as well as issues that
relate to client representation more broadly. For example, the stu-
dents must provide in the client engagement letter for an hourly fee, a
retainer, and a provision that if monthly payments are not paid when
billed, then the lawyer may withdraw from the representation. The
ABA Model Rules of Professional Conduct deal with each of these
provisions, 22 and the students are expected to see the potential issues
and comment on them under the appropriate rules on the ethical
checklist, even when the facts show no actual violation of the rule, and
even if the ethical rules do not relate directly to drafting a contract.
In actual practice, lawyers who draft contracts must be careful not
only to protect the interests of the client, but also to protect them-
selves against the threat of malpractice. The drafting lawyer's respon-
sibility extends throughout the contract drafting process and even
beyond the signing of the contract. If the performance of the parties
under the contract ends successfully, the lawyer's responsibility then
ends, but if some breach stops the performance prematurely, and liti-
gation is threatened or initiated, the drafting lawyer may later be
called to task for a glitch in the drafting and possibly face a malprac-
tice suit that lingers long after the contract was signed and the fee for
the work received. If drafting lawyers do not protect themselves dur-
ing the drafting process, their work may return to haunt them long
after the drafting process is over. The students, therefore, need to
confront the reality that in drafting a contract they may incur liability
for malpractice, and they should have some idea about how to protect
23
themselves.
Using the file to document the legal work performed is one im-
portant way for a lawyer to protect against malpractice claims, and the
integration of contract drafting in the context of an actual law practice

21 Id. R. 5.2, 8.3.

22 Id. R. 1.5, 1.15, 1.16(b)(5).
23 Although liability for malpractice claims may be mentioned in some doctrinal
courses, I suspect most law students have only a vague idea about malpractice and little
knowledge about how to avoid it. A law office management course may include risk man-
agement as a topic, but that course is probably not taught in all law schools.

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24
provides an excellent way to teach students good file keeping habits.
In addition to introducing the students to the obvious need to docu-
ment the interview and the negotiation, I try to get the students in the
habit of using the file to document every aspect of the contract draft-
ing process. If the students talk with the senior partner, I require the
students to prepare a memorandum that documents that conversation.
If they have further conversations with the client, perhaps to ask more
questions after a negotiation session, they write a memorandum about
that conversation. If they have a conversation with the lawyers on the
other side that is not included in a negotiation summary, they must
also document that conversation. I want the students to realize that
the documentation will help explain what the lawyers did and why
they did it, and what the client wanted or did not want and why, all of
which may help the drafting lawyer in a subsequent malpractice claim.
I emphasize the connection between file documentation and mal-
practice in a drafting exercise in class. In that exercise, the students
advise the client to put a certain clause in the contract. The client
refuses the advice on some semi-rational basis, and the clause is ac-
cordingly not included in the contract. As the performance of the
contract unfolds, it later becomes clear that the clause should have
been added, and the client accuses the students of omitting the clause
and leaving the client's interests unprotected. When the students re-
mind the client that he had rejected their advice to include the clause
in the contract, the client denies receiving this advice, thus placing
them squarely in that common and frustrating situation of a "yes, I
did... ; no, you didn't.. ." debate.
This exercise teaches the lesson that documenting the process of
client decision making in writing provides some proof that the discus-
sion transpired as the lawyer remembers it and also serves as a re-
minder to the lawyer of what transpired. When students tell me they
can easily remember what they said and did, and perhaps even why, I
explain that the client's claim of malpractice may, subject to the stat-
ute of limitations, come up some years later, long after the drafting
lawyer has forgotten these events. While they as students can proba-
bly remember what happened in one case spread over a period of two
or three months, the practicing lawyer with many cases spread over a
far longer time does not have that same advantage.
Students learn from this exercise that lawyers may find more pro-
tection from malpractice claims in the documentation contained in
their files than they will find in the terms of the drafted contract. Only

24 Documentation is an important tool for lawyers, but I suspect that it is one rarely, if
ever, mentioned in law school. I was taught in the law office, not the law school, to docu-
ment all phases of any representation of a client.

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then do they understand the importance of including in the file a

memorandum setting out their advice to include the clause and ex-
plaining the client's decision to delete the clause. I ask the students to
apply this lesson to each phase of the simulated project, and I back up
that request by carefully checking the documentation in the file when-
ever I review it.25

Although it would be easier simply to warn the students in class

about the dangers of malpractice in contract drafting and the need to
document the file for their own protection, they would not understand
the importance of the message without the experience of the simu-
lated project. Even with the lessons of the simulated project, it is very
difficult to get the students in the habit of carefully and fully docu-
menting their files. When students do document their files, they fre-
quently tell only half the story. If they state they advised the client to
do something in a certain situation, they frequently fail to state why
they gave the advice and whether the client accepted or rejected the
advice, and if the client rejected the advice, why the client did so. By
the end of the project, their documentation of the file has improved,
but only with much prodding by me.
I also require the students to evaluate in writing the documents
they receive during the project. For example, those students who dis-
cover that they represent a corporation eventually determine, after
prodding by the senior partner, that they need to obtain a corporate
resolution authorizing an appropriate officer to sign the contract. Af-
ter obtaining a copy of the resolution from the client, most students
will put the resolution in the file, without considering whether the lan-
guage of the corporate resolution is appropriate to authorize the sign-
ing of the contract. When they are finally required to read the
resolution and apply it to the facts of their project, they realize that
the resolution is not drawn broadly enough to cover the contract, and
they redraft the resolution and send it back to the corporate directors
for approval. At the conclusion of this exercise, the file should in-
clude a copy of the original corporate resolution, a memorandum ex-
plaining why the resolution was inadequate and what they did about
it, and a copy of the redrafted resolution.
During the course of the project, I bring up several legal issues
that require some simple legal research. For example, the students
may have to decide if they can liquidate damages or limit consequent-
ial damages. As they undertake the research to answer these ques-

25 Documenting the file also provides proof that the lawyer has complied with Rule
1.4(b) of the ABA Model Rules of Professional Conduct which requires a lawyer to ex-
plain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.

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tions, I warn them that many lawyers in a busy practice make the
mistake of researching a legal issue and finding the answer but never
documenting the research in the file. If the issue becomes important
later in the representation, the lawyer has nothing in the file to show
that the issue was considered or how it was resolved. In the simulated
project, I require the students to document their research in a memo-
randum that provides a statement of the facts, the rule and its citation,
the application of the rule to the facts, and the conclusion.
In the traditional drafting course, little consideration is given to
the reality that a contract must be negotiated and drafted within the
context of a working law firm, even though it is through that business
entity that the lawyer delivers legal services to the client. 26 The simu-
lated project, however, provides an opportunity to introduce the stu-
dents to some elements of law office management that affect the
broader drafting process. As a result, the students gain some sense of
the need to practice effectively and efficiently to better serve the pub-
lic, and to benefit themselves as well as the legal profession.
As an example, I require my students to use a "to-do" list
throughout the simulated project. On this list, the students are sup-
posed to describe each task to be completed, state which partner is to
do the job (or client, if client needs to do something), the deadline for
completing it, and the date it is actually completed. This list serves as
a simple but functional tickler system for the file, and I use it not only
to make sure that tasks get done on time, but also to convey to the
students the idea that their complex professional lives will require an
27
effective tickler system in their law practice.
When students fail to complete the work that the senior partner
has specifically assigned, it is often because the "to-do" list is either
incomplete or has been ignored. As a result, one of my more frequent
questions in class or in office consultations after assigning a specific
task is, "How are you going to make sure you do it?" When I first ask
the question, I usually get blank stares. As the semester winds down,
''
the students answer, "Put it on the 'to-do' list. 28
The students keep time sheets indicating the work done, the date
it was done, the person who did the work, and the time it took to do it.
Keeping time sheets gives the students a sense of the relationship be-
tween tasks to be performed and the time it takes to do them, and it

26 1 graduated from law school in the early 1970's without the slightest inkling of what
was involved in the delivery of legal services to the public.
27 Students are surprised to learn that malpractice insurers ordinarily require that law
offices maintain an effective tickler system.
28 1 point out to the students that the "to-do" list is one device that should help them
comply with the diligence requirement of Rule 1.3 of the ABA Model Rules of Profes-
sional Conduct.

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 CLINICAL LAW REVIEW [Vol. 11:241

introduces them to the reality of keeping track of time in the practice

of law.
To give the students a sense of how time relates to money, I re-
quire the students to prepare a fee statement after they finish the third
draft. If they have kept a detailed time sheet, they will have an easy
time preparing the fee statement by transferring the information on
the time sheet to the fee statement, without having to go through the
file to reconstruct what was done and when. In preparing the fee
statement, the students also have to confront the issue of whether they
can fairly charge the client for all the work they have done. The fees
reflected in these statements typically add up to several thousand dol-
lars, a fact that excites some students but shocks others who consider
the effect on the client.
I emphasize the need for file organization by requiring that all
files be organized in a particular way so that the students can locate
their documents quickly and efficiently when they meet with me in my
office. In the beginning, they often neglect to bring the file to the
meeting at all or, if they do bring it, they fail to organize it, resulting in
some very unproductive meetings. As in the case of learning to docu-
ment the file, the students eventually realize the value of an organized
file, and occasionally former students who are now practicing law have
asked me to refresh their memory about file organization.
The simulated project also teaches students about the importance
of professional relationships - with clients, associate lawyers, supervis-
ing lawyers, and opposing lawyers. Although a traditional drafting
course may suggest otherwise, lawyers do not work in isolation from
one another. Instead, a lawyer must work well with all types of peo-
ple. A lawyer's representation of a client may fail miserably if the
lawyer cannot work with people or adjust to those who may differ in
personality, race, gender, religion, political belief, or legal interests.
Good working relationships probably cannot be taught in class,
but they can be experienced in a simulation. In the simulated project,
the students cannot finish the project without having to work closely
with the senior partner and the client, as well as a student partner and
students acting as the lawyers for the other side. When students enjoy
good personal working relationships with those involved in the pro-
ject, they can usually complete the project fairly successfully. On the
other hand, if they have poor personal working relationships, serious
problems quickly arise and sometimes require my intervention.
Although the professor and students with whom a student must
work in the simulated project will not reflect the range of people a
lawyer will have to work with in practice, the simulation gives the stu-
dents at least a flavor of what they might experience in an actual prac-

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 267

tice. In the simulated project, both the student's working partner and
the students working as lawyers for the other side are selected by a
random method rather than by student choice. The students therefore
cannot team up with an already known, compatible partner or oppos-
ing team, and must experience these relationships as they develop.
The most important working relationship for any lawyer is that
between lawyer and client, and even in the artificial context of the
simulation the students develop a sense of responsibility toward their
clients. Because the simulation is ongoing, the students experience
what it is like to represent a client in a continuing relationship over a
period of time. That relationship begins with the interview and the
planning of the contract, extends through the negotiation and drafting
phases, and ends with the preparation of the final draft. During that
time, the students must stay in contact with the client, advise the cli-
ent, keep the client informed, and follow the client's instructions. The
lawyer's relationship with the client is an integral part of the contract
drafting process, and counseling the client about the contract and its
effect on the interests of the client is essential to any representation of
the client. In a non-simulated context, a student might believe that a
contract is drafted without any need to communicate with the client.
In the simulated context, the students in the planning component
must set out the advice that the client should be given at the beginning
of the representation. That advice can be as simple and practical as
advising the client to investigate the reputation of the other side as a
contractual partner, or as complex as advising the client about the
benefits and risks of a requirements contract or the need for some
type of security. As the project continues into the negotiation and
drafting phases, the students should be able to offer additional advice
on specific terms of the contract, including advising the client on cer-
tain terms offered or demanded by the other side during the negotia-
tion. Finally, as the project closes and the students send the client the
final draft of the contract, they must in the letter accompanying the
draft assess the contract in light of the client's goals and resources and
invite the client to go over the contract "line-by-line." If any terms in
the draft are still unsatisfactory in the opinion of the students, they
must warn the client in the letter about the possible adverse effect of
the objectionable terms.
The simulated project also introduces the students to the contrac-
tual relationship between the client and lawyer. Students are some-
what surprised to find that drafting a contract for a client involves not
one contract, but two contracts: the contract between the client and
the other party and the contract between the client and the drafting
lawyer. To help the students understand the contractual relationship,

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I require that they draft a client engagement letter in the first phase of
the project. In that letter, the students describe the scope of their
work and cover other matters such as an hourly fee for their work, an
estimated fee for their work, a retainer, reimbursements for costs ad-
vanced, and monthly billings, as well as contingencies for non-pay-
ment of a monthly fee statement or a breakdown in the negotiation
before the contract is signed. At the end of the project, the students
must follow through on the client engagement letter by drafting a fee
statement setting out the services performed and the costs advanced
and giving credit for the retainer.
Another working relationship that is important for success in con-
tract drafting is the relationship with opposing counsel. Although
both sides have a common interest in the successful drafting of the
contract, the two sides must work with the differing interests of their
respective clients. If the two sides cannot work well with each other in
negotiating and drafting the contract, the success of the representation
for either side is doubtful. Since both sides must agree on all of the
terms of the contract to complete the project successfully, they experi-
ence the need to work together for the benefit of both clients, an ex-
perience that is completely missing in a non-simulated context.
Finally, the simulated project introduces the students to the rela-
tionship between a new lawyer and a mentor, who may be a senior
lawyer or a supervising partner. The most important teacher after law
school is the mentor who guides the new lawyer toward effective law-
yering. In the simulated project, I play the role of the senior partner
who advises, critiques, prods, reassures, and sometimes compliments
the students as they represent their client in the drafting of the con-
tract. I am constantly available to the students and encourage them to
see me when questions or problems arise. I am surprised that students
will often do some questionable things without asking for my advice in
my role as senior partner or classroom professor. Their behavior sug-
gests to me that they are perhaps unfamiliar with the benefits of a
mentoring relationship. By using simulation, I hope to give students
some idea of how valuable a good mentoring relationship can be in
their professional lives, and I believe that some of the most effective
teaching I have ever done in law school has been in my office with
students who seek additional information or advice about their
projects.

CONCLUSION

Contract drafting involves more than just putting words on paper.

It is a long and involved process that begins with interviewing the cli-
ent and planning the transaction, and it does not typically end until

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Spring 2005] Integrating Contract Drafting in a Simulated Law Practice 269

both parties have successfully negotiated the terms, as well as put

them on paper. To teach contract drafting effectively in law school,
students should be exposed to the entire process and not just to the
actual drafting of words on paper.
A simulation of the drafting process that takes the student
through interviewing, planning, negotiation, and drafting allows the
students to practice the skills required in each component of the draft-
ing process. Instead of having parts of the process taught in separate
law school courses on interviewing and counseling, negotiation, and
drafting, the students in the simulation are able to see the entire pic-
ture at one time. The simulation helps the students understand how
the components fit into the entire process and how each is an essential
part of that process.
Putting the simulation in the context of a law practice adds a
measure of reality that stimulates student interest, but it also demon-
strates that the drafting process does not take place in a vacuum.
When the students are involved in the drafting process, they must deal
with a client, a senior partner, a law office partner, and lawyers repre-
senting the client on the other side. And, at the same time, the stu-
dents must grapple not only with the legal issues underlying the
contract, but also with ethical and law office management issues, and
they must plan to avoid malpractice.
Integrating contract drafting into a simulated law practice pro-
vides an effective method of teaching the entire drafting process and
also provides students with experience in areas that many law students
often are not exposed to in law school. Students will not be trans-
formed into instant drafting experts by the simulation, but it will give
them a solid and realistic framework on which they can continue to
build when they begin practice.

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