Wednesday, January 27, 2016

Mindfulness and Legal Drafting for Business Lawyers (A Yoga Analogy)

As many of you know, I teach both traditional doctrinal and experiential learning courses in business law.  I bring experiential learning to the doctrinal courses, and I bring doctrine to the experiential learning courses.  I see the difference between doctrinal and experiential learning courses as a matter of emphasis.  Among other things, this post explores the intersection between traditional classroom-based law teaching and experiential law teaching by analogizing business law drafting to yoga practice principles.  This turned out to be harder than it "felt" when I first started to write it.  So, the post may be wholly or partially unsuccessful.  But I persevere . . . .

I begin by noting that we are, to some extent, in the midst of a critical juncture with respect to experiential learning in legal education.  Some observers, including both legal practitioners and faculty, criticize the lack of experiential learning, noting that legal education is too theoretical and policy-oriented, resulting in the graduation of students who are ill-prepared for legal practice.  Yet, other commentators note that too great an emphasis on experiential learning leaves students without the skills in theory and policy that they need to make useful interpretive judgments and novel arguments for their clients and to participate meaningfully in law reform efforts.  Of course, different law schools have different programs of legal education (something not noted well enough, or at all, in many treatments of legal education).  But even without taking that into account, many in and outside legal education (including, for example, in articles here and here) advise a law school curriculum that merges the two.  I think about and struggle with constructively effectuating this all merger the time.

Now, about the yoga . . . .  Most of you likely do not know that, in addition to teaching law, being a wife and mom, and other stuff, I enjoy an active yoga practice.  As I finished a yoga class on Sunday afternoon, I realized that yoga has something to say about integrating doctrinal and experiential learning, especially when it comes to instruction on legal drafting in the business law area.  Set forth below are the parallels that I observe between yoga and business law drafting.  They are not perfect analogs, but they are, in my view, instructive in a number of ways important to the teaching mission in business law.  The first two bullet points are, as I see it, especially important as expressions of the idea that law teaching is more complete and valuable when it holistically integrates doctrine, policy, theory, and skills.  The rest of the bullets principally offer other insights.

  • Many who approach yoga consider it just another way to exercise using specific poses and sequences of poses.  But at its core, if practiced seriously (with intention), it involves substantially more than that.  It involves introspection that links poses (called asanas) geared toward improving strength, flexibility, and balance (the exercise part) to ones breath.  The breath is the anchor for the poses.  Only when the poses and breath work well together do you have the full benefit of the yoga practice.  Similarly, contrary to some commentary, contract drafting, disclosure drafting, and other drafting in business law (and probably in other areas of law, too) involve more than merely identifying and marking up drafting models (precedent transaction documents) using drafting conventions (a/k/a norms).  Quality drafting in business law involves connecting those models and conventions back to legal doctrine and the theory and policy that drives that doctrine in a manner that reflects the client's individualized facts and and responds to the client's expectations.

  • Each yoga pose (except as noted below) involves both effort and yield.  One set of muscles and tendons contract while another expands.  There is a similar kind of balance in much business law drafting.  In contract drafting, for example, the negotiation process results in give and take reflected in the included terms and provisions in order to achieve a document that can be signed by both or all parties.  Drafting judgments that involve gauging reasonableness (e.g., in drafting non-compete clauses), materiality (e.g., in disclosure drafting), and other conceptual matters inherently involve balancing.  Doctrine, policy, and theory--as well as, of course, the client's preferences and needs--guide the drafter in this balancing process.

  • In yoga, we often are instructed that it is more important to do a pose correctly (to achieve the intended benefit of the pose) than it is to be able to do the full expression of the pose.  Appropriate modifications are suggested to allow practitioners to work within their limitations.  Legal drafting involves many areas of compromise based on the circumstances (which may include time limitations, for example) if the deal is to be consummated or the matter is otherwise to be concluded successfully.  It's important not to let the perfect be the enemy of the good in both endeavors.  Making that judgment call can be tough in some situations--in both yoga and business law drafting.  The more comprehensive the practitioner's knowledge is, the more easily she can make the necessary judgments.  A good instructor/mentor can help ensure that  those who are less experienced make good judgments.

  • Yoga practice involves recurrent, consistent, focused effort directed at constant quality improvement using, among other things, the principles articulated in the preceding bullets.  Praiseworthy business law drafting also involves attention to continuous quality improvement--repeated editing--using principles set forth in the preceding bullets (and elsewhere).

  • Finally, yoga class generally ends with a rest pose that is 100% yield.  Known as shavasana (sometimes savasana), or corpse pose (which looks like it sounds!), this part of the practice typically begins with a reflective state.  At its core, however, shavasana involves relaxation connected to breath and ultimately (optimally) a meditative state--a part of yoga practice on which I still need a lot of work.  (I confess that the idea for this post first came into my mind during shavasana, and I tried unsuccessfully to put it out of my mind.)  While it is, to many, the most important part of a yoga practice, a lot of folks just stand up and walk out instead of completing this final pose.  And most classes give short shrift to it.  The best legal drafting session, like a yoga practice, involves reflection and detachment at the end.  This process can have many benefits in both contexts.  In yoga, it gives the body and mind a chance to regroup after some tough work.  This resetting makes space for a new and improved practice the next time around.  And in business law drafting, well, let's just say that I cannot count the number of times that, after moving away from a document and resting my brain by doing something else, I think of something that I can do to make the document better when I turn back to it.

This analogy may or may not work for you.  You may not find it persuasive or helpful, including because my description of a complete yoga practice or a thoughtful legal drafting practice may not offer enough information to adequately explain the connection and its value.  But I determined it was worth sharing for its potential to generate thought on the value of a program of legal education that integrates traditional theoretical, policy-based, and doctrinal classroom pedagogies with experiential pedagogies to form a more complete, beneficial whole.  At the very least, the analogy allows me to expose you to some principles of successful legal drafting that I use in my teaching.

Namaste.  (This is the way yoga practice ends.  It is a shared greeting that indicates mutual acknowledgment and respect.)  Leave comments as desired . . . .

https://lawprofessors.typepad.com/business_law/2016/01/mindfulness-and-legal-drafting-for-business-lawyers-a-yoga-analogy.html

Compliance, Corporate Finance, Joan Heminway, Law School, Securities Regulation, Teaching | Permalink

Comments

Post a comment