Saturday, December 16, 2017
There's a new article by Professor Carol Goforth (Arkansas) called Transactional Skills Training Across The Curriculum that's just been published in the Journal of Legal Education at 66 J. Legal Educ. 904 (2017). After reading the except below from the introduction, please go forth and check out the full article here.
Legal education adapts slowly. In no area is this gradual change more apparent than in professional-skills instruction. While increasing academic resources have been devoted to practical skills, and particularly communication-based skills such as legal writing, the changes to date have not fully addressed the needs of modern lawyers. With the exception of legal writing, most skills instruction at the majority of law schools takes place in the upper-level curriculum. And while legal writing may be commonly taught in the first year, most first-year writing instruction is either predictive or persuasive in nature, rather than focusing on transactional drafting. This means that at most law schools, transactional skills are introduced after the required first year has immersed law students in the world of litigation. Even in the upper-level curriculum, transactional practice is underemphasized. For example, upper-level writing courses tend to focus on persuasive writing either in the form of briefs or scholarly articles, rather than on transactional drafting.
Although this article addresses transactional skills more broadly, legal writing provides an appropriate lens through which to view the differences between a dispute-resolution focus and one based on deals or other transactions. When a lawyer assists in a transaction, the kind of writing required is fundamentally different from the predictive or persuasive writing associated with litigation and other dispute-resolution contexts. Transactional drafting is prescriptive; it sets out how persons affected by the writing are to behave in the future rather than evaluating the consequences of prior acts. It neither involves a narrative about how the law is likely to apply to particular facts nor makes arguments about how the law should apply. It does not focus on explaining the law at all. Instead, this kind of writing uses the law to construct a legally enforceable template by which the involved parties will govern themselves prospectively, based on possibilities and contingencies that have not yet happened. It requires input from both sides of the deal and something other than adversarial persuasion, and it must be clear not only to the current parties, but also to those who might be called to understand the terms of the arrangement in the future.