Confessions of a Transactional Attorney: What Law School Didn’t Teach Me About Contracts

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The education students receive in the typical law school contracts class, though interesting and useful in understanding contract basics, is not complete for those lawyers who end up working as transactional attorneys. Rachelle Cohen, a practicing transactional attorney and Adjunct Professor of USC Gould’s Contract Drafting and Strategy course, describes what essential lessons were missing from her law school education and the importance of those lessons to any attorney who has a transactional practice.


Uni: Welcome to the Master of Laws and Business Law Certificate Confessions of a Transactional Attorney Webinar, presented by the USC Gould School of Law. My name is Uni Arceo, and I will be your host today.

First, I’d like to just thank you for taking the time out of your busy schedule to join us. If you have any questions, please type them into the Q&A box in the lower right hand corner of your screen and hit send. Feel free to enter your questions as you think of them. We’ll answer as many times as the time allows at the end of the presentation. Keep in mind, a PDF and a recording of today’s presentation will be available shortly after the event.

Here’s a quick look at what we will be covering today. Professor Rachelle Cohen, a practicing transactional attorney and USC law professor, will shed some light on what she has learned through her experience practicing about contract negotiating and drafting, client relationship and communication, disputes, and her role as a lawyer. Lastly, I’ll cover the admission requirements and the next steps to begin an application for entering into the USC Gould online law program, and we’ll wrap up with a Q&A session.

Rachelle: Thanks Uni.

Uni: You’re welcome. Now let’s get started. Hello, Rachelle.

Rachelle: Yes, hello. Thank you.

Uni: Thank you for joining us today.

Rachelle: As Uni mentioned, you can submit your questions online. One negative thing about having a webinar like this is that I can’t see any of you, so I can’t tell whether you’re bored and falling off your chair or engaged but have no idea what I’m talking about, so I can’t tailor the presentation, but I do hope that you’ll ask questions if there’s anything that’s confusing or if you want more information about the class that I’ll be teaching. In the class that I will be teaching, there will be opportunities for weekly live discussions where we’ll be able to engage each other and talk about the things that we’re learning that we’re not able to do today, and there’s also going to be web discussions, group discussions where we’ll be posting back and forth where the students can engage with each other and with me as well. That will be a a little more of a collaborative learning effort than today.

Let me tell you a little about myself. As Uni mentioned, I am in private practice. I’ve been practicing for about fourteen years now, and I represent all sorts of clients –entities, individuals– and in all sorts of industries and businesses –manufacturing services, real estate, and others. As you can imagine, I do a lot of contract work. I’m looking at contracts, reviewing contracts, commenting on contracts, drafting contracts, talking about them with clients. On a daily basis, I’m constantly dealing with contracts, so it makes sense that I’m teaching in the summer a contract drafting and strategy class.

When I thought about what I was going to teach this summer, it made me reflect. What did I learn in law school? What have a learned since then? My goal is to make the class a very practical experience. Right now, fourteen years out, or it’s been more since I attended my initial contracts course in law school, I can’t tell you anything specific from that class that I’m using today or something that stuck with me that I think “Oh yeah, I learned that in my contracts class.” My goal is in the class that I’m teaching this summer for students a few years out to be able to say “Oh yeah, I remember learning that in the contract drafting class,” or “That’s a useful tip that I learned then.” My focus is to make this practical, and that’s different than how I was taught in a contracts class. Next slide please.

I was trying to think back to my law school experience, and it’s been a while, so I can’t really remember too many details, but in a typical law school contracts class, you’re learning about what a contract is, how it’s formed, whether there’s sufficient consideration, and mostly you’re learning this by looking at case law. I recently read something written by a professor critiquing contracts classes, because you don’t actually look at contracts. That’s the peculiar thing about an initial contracts class; you’re looking at case law, cases that talk about contracts, but you’re really not looking at contracts.

The contracts course gives you a framework or an understanding about how contract law works in the United States, but for my day to day practice when I’m actually looking at contracts and drafting them, it doesn’t provide much practical guidance for me. Because the contract course is focused on litigation –you’re looking at case law– that’s a very different focus than you’ll have if you’re a transactional lawyer working on specific deals and contracts. Next slide please.

What contracts courses typically omit, contract negotiation and drafting. Of course, I’m teaching a drafting course, so obviously I think that’s something essential. Communications, communications really is not a focus in law school. There’s a focus on getting information, teaching students how to look at legal issues, but communication is so important when you are actually practicing law, and it’s something that I think should be focused on more. Dealing with clients, obviously if you’ve been in practice for any amount of time, you’ll have some story of dealing with clients and the challenges that that can bring up. Contract disputes, I am not a litigator, so I do not ever go to court except when I get called up for jury duty, but I do often get involved when there’s disputes in contracts before it gets to the litigation point. I think it’s important to think about how you handle disputes at that point. Then finally, I have here the role of the lawyer. I maybe could have put this up in the beginning, but this is something that again I don’t think often … First of all not in law school but even as we’re practicing law, in the day to day practicing lawyers are very busy getting out work to clients and don’t often have time to reflect on what their role is and how they can be helping their clients in their role as a lawyer. Next slide please.

Let’s start with the contract negotiation and drafting. Since the course I’m teaching is called Drafting Contracts, I’ll start with the drafting part. In law school, because of our system being an adversarial system, the way law is taught is from an adversarial point of view. We’re looking at case laws where there’s one party suing another party, and that’s how we learn contracts, by learning the case law that has developed to set out the law on contracts. Because of that, the way writing is taught in law school is adversarial. You’re usually –or at least when I was in law school– writing briefs for litigation. That style of writing is persuasive; you’re trying to convince a judge that your client is correct and that the law supports your client’s position. That is not the way that contracts are drafted, and I’m sure all of you have looked at many contracts over your lives. You’ve had to sign contracts, and maybe you work in contracts, so you’re looking at contracts and drafting them as well. You know that contract drafting is very different from the typical persuasive writing style that is involved in litigation here in the United States.

That writing style is something that needs to be learned, and in the class that I’m teaching this summer, we’ll be having regular assignments that are to practice writing skills, and the book I’ve chosen also has much guidance on writing skills, because that’s essential if you’re drafting contracts and reviewing them, to be able to draft in a concise manner and to use language that helps people to understand the contract.

Negotiation techniques, negotiation is not something that is focused on in law school, or at least it wasn’t with me, but it’s something that if you are working on contracts, you’re going to have to get involved in negotiations. Sometimes, your client is going to do a lot of the negotiation, but there will always be something that the lawyers have to negotiate, whether it’s actually getting involved in deal terms or negotiating some of the legal fine points of the contract. I think negotiation is something interesting, because it’s very personal. One of the sessions of the class I’m teaching, we’re going to focus on negotiation and the multicultural aspects of negotiation. I think this is something that people develop over time. Certainly, I have developed different negotiating techniques from being involved in negotiations, but I think that it is helpful to read about negotiations, to talk about it, and to think through it with examples. That’s one thing that in the class, I have plenty of examples for us to go through, because I think talking about all of this theoretically is interesting, but it’s much more helpful to talk about these things with respect to examples.

Finally, I have here reliance on forms. I recently saw an app that parties can use, and they can put in their information, and out spits out a contract. I think it’s used with simple agreements like a nondisclosure agreement. The parties can enter their names and whatever other information the app asks for, and then a contract gets spit out. You don’t even need a lawyer. We’re all done; we don’t need to be here. That’s not the case, because typically contracts are more complex, and parties have more issues than just being able to fill out some information in an app and having an agreement spit out.

I think because lawyers, we see ourselves as advisors, and we are advisors, the idea of using forms is sort of like “Oh, we can’t talk about that,” but using forms is essential in any transactional practice. I think the challenges, especially for younger lawyers, is if you don’t know how to use forms, you can get into trouble. One focus of the class that I’m doing this summer will be how to choose forms, and then once you choose a form how to use it properly, because you might need to change things and really review what you’re doing to make sure that you’re not relying on a form too much. Next page.

Communications, I have here a list of types of communications. I put this up here because I think it’s important to think about how you’re talking with people and what the most effective way to communicate is. When I’m working on a deal, and I just had an employment agreement that I was working on. I didn’t draft the agreement. I had lots of comments to the agreement, and specific comments: section one and two and three. I put those in the agreement, my comments, and e-mailed it to the other side, because that’s the most efficient way for me to get across all of those points, but in an earlier version of this agreement, I had a question about a specific provision. It wasn’t just “Oh, I don’t think this is written correctly.” It was “Is this really what you mean,” because the term was not something that I understood from my client. In that case, I called the other side, because speaking on the phone, we could talk through what the lawyer meant. Was that really something that his client is set on, or is this something that we can negotiate? You can learn more information than just by sending an e-mail, and sometimes you learn information more quickly. In e-mails, someone might misinterpret your question, so you might have more back and forth, whereas if you just called, you would get the information more quickly. I think this is a very person-focused approach, and this is something where I think I can tell you how I handle things, but then it’s also helpful to hear how other people handle things and get your own approach to how you communicate.

Communicating with your client, I just had a client a couple days ago tell me “I hate speaking to my accountant, because every time I do, she starts spouting off technical language that I don’t understand.” I think that’s a cautionary tale to us lawyers that sometimes we’re used to speaking about things in a certain way, but when you’re speaking with business people or your clients, they’re not starting from the same reference point that you are. Sometimes you might be dealing with extremely sophisticated clients that have done hundreds of these types of agreements, maybe more than you even, and you won’t have to explain a whole lot to a client like that. You might be dealing with a client who is not as sophisticated or hasn’t worked on the type of deal you’re working on with them, and you might want to explain more.

The other point is that sometimes what you communicate with your client, how you advise them, might depend on the sophistication of your client. I’ll get to that on another slide in a moment. How you communicate with the other side, like I said you might e-mail documents back and forth. You might speak on the phone, but I think this is something to consider, how you’re dealing with the other side so that you can be most effective in your dealings to get the results for your client. Next slide please.

Dealing with clients, we’ve talked a little bit about this already, but my first point here, in contracts class in law school you don’t really talk about your representation of clients. You might in a professional responsibility class talk about conflicts, but I know when I was in law school and taking an ethics class, a lot of the students tuned out because we thought “We’re all ethical. What do we need this class for,” but it turns out that legal ethics is not so intuitive and is extremely practical. Once you’re practicing, you are dealing with ethical issues. No doubt, every lawyer has faced an ethical issue that they’re uncertain how to handle.

In transactional practice, who you represent is very important for how you give advice. Sometimes, I might represent a corporation, but I might be talking with the chief operating officer at that corporation, and that’s my main contact. The interests of the chief operating officer and the corporation might not always be aligned, so I need to be in tune with that. I might represent a partnership, or I might represent one of the partners. Knowing who I represent helps me to decide what advice I’m giving and to whom and who I’m having my communications with. That’s extremely important, and I think through examples –and in my class I have lots of examples– we’ll sort of talk through these issues and consider them.

Providing advice and managing client expectations. When you’re looking at a contract, and I this week was looking at a lease agreement that’s, I don’t know, thirty pages long. I am not going to take my client step by step through that contract and tell them every risk of that contract: “Start with paragraph one, and we’re going to make it to paragraph fifty-six.” No client wants to go through that, so while I’m going to read through the whole contract and note what’s problematic and what’s okay and what seems fair, I’m going to only tell my client the things that are significant to my client. How do I know what’s significant? That’s getting to know my client, getting to know what their interests are, knowing their position in the deal. That’s all stuff that we’re going to go through in my class through examples, because I think that’s really the only way to talk about this. Next slide please.

Contract disputes. Like I said, I don’t litigate. If a client ever says “I want to sue,” I’m going to refer that client to another lawyer, but I do get involved in contract disputes. For the most part, in law school we are constantly reading case law, and the court houses are all full. If you look at when your case is going to be heard now in the LA courts, it’s forever basically. For the most part, none of my clients want a lawsuit. It just doesn’t make sense. First of all, the money might not be significant enough to sue, because it’s very expensive to litigate. It takes the manager’s eyes off of the business; they can’t focus as much on the business if they’re managing a lawsuit. Usually, there is a resolution that can be found without going to court. That’s not always the case. You might have situations where there’s a a [bet the 00:20:05] company type case where you actually do need to litigate. That’s rare, so most of the time people shouldn’t end up in litigation.

In order for your client to know what it should be trying to negotiate for or whether it should be litigating, you have to be able to evaluate the contract and get to know what’s going on and the facts to know how strong the client’s position is, where the weaknesses are so you can advise the client. In the class I’m teaching, we’re going to be looking at contracts and interpreting them and also critiquing them, because I think that’s where you can find the holes in contracts and where maybe your client has some risk and where they have strong positioning.

Then resolution alternatives, this is something that you build up with experience of trying to think through what else could the client … You might have a client that says “All I want is to get paid my money and be done with this other party,” but there might be some resolution that your client’s not thinking of because they’re personally invested in the problem or the issue and can’t think about alternatives, whereas you coming to it can bring some fresh ideas about how to resolve the dispute that might be beneficial to both sides. Next slide please.

Finally, we get to the role of the lawyer. Like I said earlier, I think this is something that really lawyers don’t spend a lot of time thinking about. In a transactional based practice, since you’re not litigating, it’s not as adversarial, even though you are representing one side or the other. I’m always representing one party to a deal. I’m representing the seller or the buyer. I’m representing the employer or the employee. It is adversarial in that sense, that both sides have lawyers usually and there’s a deal being worked out. I’m only fighting for my client’s position. I’m not considering the other side in how I give advice to the client, but because my client wants to get a deal done, I am also facilitating a transaction. Even though the process, how we do contracts, is adversarial, the process shouldn’t be adversarial.

I see my role as a facilitator of the transaction. Although there have been cases where a client of mine hasn’t entered into a transaction after going further in the deal, I wouldn’t say just because they worked with me, but because they realized that the terms of the deal weren’t exactly what they were hoping for or planning for, or there was just too much risk that they weren’t willing to take on. In the typical client situation that I work on, the deal gets done, so it’s a matter of finding the best deal for my client that will get them the best result.

That brings me to the end of my presentation. Like I said, I’m happy to take any questions, and I do hope that some of you will join me in the summer class, because I’m really excited to be teaching it and to have a more interactive process.

Uni: Great job, thank you professor Rachelle Cohen for joining us today. I just wanted to explain the admission requirements for the online LLM and the business law certificate programs. The LLM program is designed for international students, so what we’re looking for is someone with a first law degree from outside of the United States. All the applicants submit their applications through the Law School Admission Council or LSAC. That’s where you would send in your official transcripts from all the universities attended. There is a personal statement, which if you’re like you can contact me. I can review the personal statement before you would submit that. Two letters of recommendation. It could be professional or academic. If English is your second language, we do prefer a TOEFL or IL score and a resume. The LSAT or standardized tests are not required for the LLM course.

Then we do have a business law certificate, which is available to our US students. The requirement there is for someone to hold a JD degree. The applications are also submitted through the Law School Admission Council or LSAC. Again, you would send in your official transcripts from all the universities attended, a personal statement, two letters of recommendation, a resume, and again the LSAT is not required.

Now it’s time for the Q&A session. Please take some time now, if you haven’t already, to type in your questions in the Q&A box in the lower right-hand corner of your screen. Our first question is “How long does the program take to complete?” Most students can complete the program in three to four semesters, and there’s three semesters per academic year. You can finish the LLM course in as little as one year, and you do have the option of going part time. If you do part time, you have up to three years to complete the degree.

“Will I have to travel to California?” No, the program is one hundred percent online. It is flexible so that you can continue working and learning at your own pace. Let’s see here. “How much time do I need to commit per week? Are classes live?” We estimate a full-time schedule will require about fifteen hours of time per week. Most of the coursework can be completed in a flexible format as it fits into your schedule. There will likely be one or two live sessions per week. Keep in mind, these live chats are typically going to be scheduled around the cohort’s time, students being all over the world. The live chats are typically about an hour and are recorded, so if you miss them, you are able to watch it at a later date and time that’s convenient. Any other questions? “Are there scholarships available?” All students who apply will be considered for a merit scholarship through USC, but very few students will be awarded it. Financial aid is available through the FAFSA for US citizens and permanent residents.

I have a question for you, Rachelle. What do students find most challenging?

Rachelle: That’s a good question, being a student myself, I mean not being a student of this program myself. I think if you’re working and doing school, I think that’s always a challenge. Luckily, though, the way most professors have set this up –I think all of the professors in this program and the way I set it up– there’s a lot of flexibility in when you can get things done. There’s group discussions, but you can submit your responses late at night, if that’s when it works for you, or early in the morning. Assignments, you can usually view the assignments way ahead of time, so if you know you’re going to have a busy week at work, you can plan ahead. I think that’s always a challenge is scheduling when you’re working and doing school at the same time, but this program is designed for that.

Uni: What do you most look forward to teaching in the program?

Rachelle: What do I most look forward to teaching in the program? That’s a great one. I look forward to working with students in building a repertoire of contract language. I see lots of badly drafted contracts that you think “Did a lawyer write this?” I want to prevent that from happening to any of the students in my class, so I look forward to building their contract drafting skills sot hat they feel confident when they’re drafting and feel confident reviewing and being able to say “You know, this doesn’t really make sense.” That’s what I look forward to.

Uni: I had another one come in. “Which or what mistakes should we avoid when drafting a contract?”

Rachelle: Do we have another hour? That’s a good one. I think the most important thing –and I’m not going to be able to tell on this call how you would do this– the mistake that I mostly see is that the contract is not clear. If I’m looking at an agreement that I have no participation in it, I just get a contract on my desk that a client sends over. “We signed this a long time ago. What rights do we have?” I look at it, and I just don’t know from reading the contract. That’s the biggest mistake that somebody looks at it and says “What did we agree to? What does this mean?” That’s why a lot of the focus of the class will be on drafting clearly. You might think “Oh, that’s easy.” It seems easy, and it seems like they should be easy, but it’s not always easy. Partly, that’s because you might be dealing with complex terms that you have to sort of wrap your head around “What am I even trying to write?” Then also, the way we speak is sometimes different than how we should write, and a lot of times I think people end up writing how they speak, or they use forms that have language that we don’t really use anymore, and they don’t totally understand what it means, but they keep it in there. The contract becomes unclear.

Uni: All right, well thank you professor Cohen for taking some time out to be here today. This will conclude our webinar. Remember, if you have any questions or think of any, please e-mail me. Let me know. The information will be forwarded, and my contact information is on the screen now, so if you do want to touch base with me, you can contact me toll free or e-mail me. I’ll also be sending a PDF and a recording of this event, which should be available shortly, within the next week. Thank you again, and have a great day.

Rachelle: Thank you.