Beware the common misconceptions about learning contract drafting, such as...
I can learn contract drafting in law firm internships (by getting exposure and training from seniors)
Have you thought about how you will obtain the internship in the first place? What skills will you demonstrate to be able to secure the internship?
Securing the internship itself requires you to demonstrate superior skills through the internship application process. Law students face a lot of struggle with the application process and not receiving replies to their applications, primarily because their CV does not show any real skills.
Contract drafting skills can be very relevant here, as you will see later.
However, for the moment, let us assume that you have secured the internship anyway. Let us perform a quick reality check of the expectations at an internship.
When you intern in a law firm, there will be students interning from other colleges too. They will all want to make an impression.
They will all work as hard as you. They want a callback, or a PPO, an interview or an assessment internship.
If you are not prepared to perform advanced work, your performance will be left to chance.
You may expect to be trained by your senior at the internship. For a moment, imagine the life of a busy senior - he or she already has 12-16 hour workdays. On most days, they will not have the time to train you from scratch.
Now, on a particular day, imagine that he or she, by chance, manages to get his or her urgent work completed an hour earlier.
Scenario 1
He or she has three choices at this time - complete another assignment so that he/ she increases billings for the firm’s practice, leave early to be with his/ her family, or train an intern from scratch.
What would the senior prefer to do?
If you were in his or her place, what would you have chosen?
Scenario 2
Now, imagine that another intern, who already knows how to perform the task, has kept a draft ready for the additional assignment which the senior intends to work on.
Now, the senior could work on the additional assignment today or on another day, but owing to the intern’s efforts, and it will not take as much time for the senior to finalize the work.
Will the senior’s approach be different in this scenario? Will he/ she be willing to guide the intern when he/ she finalizes the contract?
What is the difference between the two scenarios?
Which intern would you like to be? The intern in Scenario 1 or Scenario 2?
The chances are that the senior would like to train the intern in Scenario 2.
Every internship does not offer or guarantee you contract drafting work. You might get a completely different set of assignments, which do not connect with contract drafting, say, research work and legal note preparation work.
Would you, in that case, want to wait for your next vacation and your next internship to get this work? How many months would you lose in that case? What could you have learned in that time?
Some of you will actually get contract-related work in internships. But it looks quite different from what you have imagined. Let me explain.
A lot of internship assignments require you to proof-read contracts, make tables out of a set of agreements for a due diligence exercise, or map individual items in a ‘term sheet’ to a contract.
It feels mechanical, mundane and does not appear to require any application of mind.
I received such assignments as an intern in some of India’s best law firms. Sometimes, I didn’t see how I could add value and quickly resorted to doing the work mechanically.
While I could see and read the contracts, I had no idea why they were drafted that way. Neither could I learn how to self-draft those clauses.
When I submitted my work, my seniors often asked me questions about specific clauses in the contracts, which I had not made a note of and could not answer.
Do you know why? Because I did not know the purpose of the review exercise, even though my seniors had briefed me.
I did not know what to look for.
Similarly, students who do not know why they are performing this exercise lose motivation very quickly.
We also are not in a position to persuade seniors to give us more work.
I will revise the contract law syllabus and learn the case laws to be prepared for contract-related work in internships and jobs.
Imagine that an entrepreneur approaches you to draft an investment contract so that he or she can receive investment into the company.
Or imagine that another entrepreneur approaches you to draft the terms of service and privacy policy of his or her website.
Imagine that a freelancer approaches you to review a commission agreement or a digital media promotion agreement.
Imagine that an artist asks you to review a license agreement.
How will you start? Which questions will you ask? Which clauses will you draft?
Will you give him or her a narrative of the requirements of a valid contract or a one-hour long lecture on free consent?
Do you believe that this knowledge will persuade a senior in an internship to give you high-quality work, or please a law firm partner in a job interview?
This is where our textbooks on the Indian Contract Act, case laws and classroom learning in the initial years of law school fall short.
We are made to read elaborate Indian and English case laws, but we are not taught how to draft even a simple non-disclosure agreement (NDA), or a license agreement, a lease or an employment agreement.
Revision of concepts under the Indian Contract Act and reading case laws does not help in cracking interviews or performing well in internships.
A lawyer cannot passively wait for the client to give commercial details about a transaction but has to know the commercial intent beforehand and guide the client in identifying risks and nuances and then drafting them in the contract.
I will learn how to draft contracts from ‘contract drafting’ textbooks
Can you learn swimming from a book? Can you learn martial arts from a book?
Can you learn ‘balance’ while riding a bicycle or a two-wheeler, or how to float, from a book?
Why not?
It is not possible to acquire skill merely by reading a few books. We have seen numerous examples of students who know about all the clauses of a contract but cannot draft a single contract.
Learning how to draft and review contracts is a skill.
You cannot learn it in the armchair - you need to try it out and practice it in a real or simulated environment, under guidance and training.
I will learn to study contract drafting in the ‘clinic’ or ‘drafting’ subject in my 4th or 5th year.
This is a plausible option, but will you have enough time after that to demonstrate your skills in an internship?
Students who have a focussed approach in their career and get jobs before graduation usually start finding internships in firms or organizations of their interest anytime during their 2nd, 3rd or 4th year.
Moreover, the clinic syllabus for contract drafting in the 4th year is vastly different across law schools. Students may draft a couple of contracts, but that is not sufficient for success. Coaching and feedback processes are usually missing.
If you start out in your 4th year, then when will you acquire additional skills? When will you demonstrate this knowledge? How will you outperform others who started preparing earlier?
I can easily draft high-quality contracts on my own by finding templates online.
If templates were the key, law firms would not have charged lakhs for a single contract. In fact, clients would not have felt the need to approach lawyers for a contract, as they would have been able to use an online template!
There is a lot more to effective contract drafting.
Some contracts are extremely technical - take a shareholders agreement, a banking and finance contract, a joint venture agreement, an integration agreement or a construction contract.
Lawyers working for clients in these industries need to understand these technicalities to be able to capture the deal.
Second, every company usually has an innovative business model or a unique type of deal, which often requires lawyers to customize template-styled clauses, introduce new clauses, combine features of different types of contracts and foresee new kinds of risks.
For example, a force majeure clause in contracts with a Russian entity usually has “epidemics and quarantine”, “radioactive contamination”, and “uprisings and revolutions” included. (Russia has seen a lot of internal uprisings and nuclear accidents).
You will not be a highly sought after lawyer if your drafting skills are limited by the scope of the template! Instead, you want the contracts drafted by you to become the market standard.
I will display a lot of ‘contract drafting’ certificates in my CV and participate in a lot of seminars to demonstrate contract drafting skills.
Your participation in webinars or pursuit of additional courses does not by itself give the assurance to a recruiter that you can comprehend, review or draft contracts.
Why? Just like in any athletics competition or a race, it is important to reach the finish line.
What is the finish line here? The point where you complete drafting the contract.
Completing a contract drafting course might feel like a valuable experience, and you may also learn a few new concepts.
However, a recruiter wants to know about your ability to draft or review a real contract. Merely obtaining a certificate does not demonstrate that.
This gap (of a lack of actual drafting experiences and skills) becomes evident very quickly in interviews, as most candidates are unable to answer questions that are asked.
Even in internships, such candidates experience nervousness and struggle with completing assignments, despite having understood some new concepts.
We openly state that even writing that you are pursuing a course with Lawsikho is of no value unless you have performed the weekly contract-drafting assignments which are given to you and have a portfolio ready to back up your claims.
How can developing contract drafting skills early help in your career?
You can train yourself for corporate-sector jobs.
Contracts are the heart of corporate work. All major business transactions - whether they pertain to investment, creation of companies, banking and finance transactions, capital markets work, projects and infrastructure work are based on contracts.
Therefore, assistance on contracts is almost universal for law-firms or in-house roles in companies.
A law student skilled in contract drafting and review can immediately be an asset as an intern or a fresher in such organizations.
It is also easier to persuade a senior to give you more high-value work (instead of routine or clerical tasks) if you know how to draft and review contracts. If you perform well in such assignments, it immediately increases the chances of converting your internship and securing a call-back, an interview or a PPO.
Further, those who have drafted contracts for entrepreneurs can narrate these experiences to persuade seniors to get more high-quality work in internships, impress partners in a job interview and even perform better than others in your first year at work!
A young lawyer can build an independent practice or earn supplementary income by performing contract drafting work.
If you learn how to properly draft certain important contacts, you can reach out and help entrepreneurs and others in your network with real contract drafting assignments.
Many entrepreneurs cannot afford an expensive law firm but are happy to obtain help from young lawyers and pay for it.
Over time, you can build an independent practice and earn well by performing such work.
Even law students in our courses (some of them are not from NLUs) have helped startups with various kinds of agreements, from terms of service, privacy policies, MOU, vendor agreement, partnership agreement, business transfer agreements, employment agreements, employment policies, leave and license agreements, website-development agreements, etc.
As a law student, even though you are not qualified to charge for legal services, you can perform some assignments to help entrepreneurs and later request an internship stipend for your efforts.
You have the freedom and confidence to change jobs; losing your job in a recession doesn’t threaten you.
Most people are powerless in the face of a recession - there is a risk of a pay cut or losing their jobs.
What if you have a network of clients willing to give you work?
You will feel secure even in a recession. You can get back to independent practice even if firms or companies are not hiring.
If you are dissatisfied with your job, you will also have the freedom to look out for jobs with better prospects. Your confidence will be higher.
You can have an abundance of options to choose from while your peers cling to their jobs.
Moreover, your real-life experiences of assisting real people with drafting work will make you more highly sought-after. Law firms prefer to hire lawyers who possess client-development skills. After all, client-development skills are what distinguish a law firm partner from an associate!
Contract drafting skills are useful for disputes lawyers as well
What about lawyers who want to work in the disputes team of a law firm or with litigators? Do contract drafting skills help them?
Many litigation firms have a commercial practice as well, which focus on contracts and commercial advisory work.
If you can perform contract drafting work, you can assist your senior with both litigation and contract-related assignments as a young lawyer.
Also, commercial disputes practice in a law firm is primarily centred around contractual disputes. Whether it is a real estate dispute, an intellectual property dispute, a licensing dispute, a construction arbitration, a shareholder dispute, insurance litigation, a recovery matter, loan default or a government contracts-related dispute - all require knowledge of specific commercial contracts and their terms.
All arbitration work (including international ‘commercial’ arbitration) is centred around contracts. Arbitration statutes are rules that are procedural - the actual claims of parties emanate from the contract terms.
Even restructuring and IBC (Insolvency and Bankruptcy Code) work requires knowledge of commercial contracts and contractual rights of creditors and suppliers.
Therefore, a lawyer who understands how to review and draft contracts will, therefore, be a more effective disputes lawyer. He or she will be able to create more innovative arguments and be more persuasive in court.
Helping clients with contracts increases the likelihood that they will approach you for disputes-related work.
Guess who is the first person that a client approaches when there is a dispute? The lawyer who drafted his or her contract.
Therefore, if you want to be a litigator, by performing some contract drafting assignments on the side, the likelihood of obtaining disputes-mandates from independent clients is higher.
Also, when there is a dispute, the client will first approach you for guidance on which disputes lawyer to appoint because you drafted the contract and the client already knows you.
Further, if you perform disputes work as well, the client is likely to prefer you to work on the matter as you will already have knowledge of the background facts and the client’s trust.
Performing contract-drafting work on the side stabilizes workflow and income for disputes lawyers.
Disputes-related work is linked to court proceedings. Unfortunately, hearing dates are not in your hands.
Hence, if the next date of your hearing, for a matter, is 3 months afterwards, there won’t be much work to do for the client.
On the other hand, when you are drafting contracts, timeframes are entirely in the control of the parties. Once you complete the work, you can raise the invoice and move on to other assignments.
This enables lawyers who work on contract-related assignments to have more control over timelines and ensure that earnings are predictable.
If you are junior to a senior litigator, performing contract drafting work on the side offers a useful source of supplementary income and makes your journey as a litigator more sustainable.
In fact, during the initial two months of lockdown, lawyers who were exclusively focussed on a litigation practice found it hard to sustain themselves, as most courts took some time to go virtual. Virtual proceedings were also relatively restricted.
On the other hand, work for corporate and transactional lawyers increased even beyond pre-lockdown days.
Apart from new contracts, they also received work related to renegotiation and amendment of existing contracts and pre-litigation work related to the drafting of notices.
