Legal Drafting Should Be Compulsory

1/8/2017

Vol 12, Issue 2

PAUL GODDARD

Legal Drafting – A Necessary Skill for Lawyers, but Not for Law Students?

We all know that there are 11 compulsory subjects we need to do known as the Priestley 11. These compulsory subjects are meant to establish the basic concepts that we need to know before we become trained to be lawyers. Yet there is something missing in this list of compulsory subjects: Legal Drafting. Right now it’s an elective in our JD program, but the competition to get into this subject is ridiculous to say the least. There are only 30 placements in the elective and there are approximately 300 of us who want to do it, perhaps more, but Melbourne Law School still does not increase the number of placements or classes. More importantly, they do not even make it a compulsory subject. There really needs to be a campaign by the LSS to make this a compulsory subject!

According to the Handbook, Legal Drafting involves preparation of legal technical documents, honing communication skills to clients through written advice, independently assessing one’s own drafting and synthesizing complex legal issues into a legal document. Students are encouraged to be creative, critical and concise about how they draft. Now, does that not sound like something we law students all need to learn, not just the lucky 30 students who are accepted into this subject?

The subject covers theories of legal writing, how to write an advice to a client, discussion on plain language, persuasive writing and writing contracts. The subject also involves guest speakers who are in-house commercial lawyers and government lawyers, so students will gain valuable experience from these speakers, especially if they consider applying for paralegal or grad positions in government or in-house.

I took Start-up Law as an intensive and we covered a fair bit of legal drafting and reading contracts among other things. It was the most practical subject I had ever taken. For the lucky Legal Drafting students, they will be doing just that for the next 12 weeks. I reckon they will have the best chance of getting a job simply because they got into the Legal Drafting subject (and presumably did well in it).

These are skills that lawyers execute every day and they need to be at the top of their game while doing it, otherwise they may be sued for professional negligence. Imagine every law student in Australia being required to learn legal drafting. When they work in the field, they will be a lot more proactive and intuitive in reading and drafting documents. The PLT and early work as a junior lawyer will not then involve having to learn extensively how to be a lawyer because law students will have a sturdy grasp on legal drafting and communication skills. I hear from other students who did clerkships that reading legal documents and writing letters is a common exercise of clerking, so the subject will prepare every law student for this inevitable task, if not as a clerk then at least as a grad or junior lawyer. Legal Drafting students will have a significant head-start in all this.

The system is letting us down here. For those in their final year of university, like me, we’ll miss out on this, but I hope every law student who still has a year or more to go, including future law students, will have the chance to do Legal Drafting.

Paul Goddard is a third-year JD student

More articles like this

Is there a Conspiracy Against Elective Enrolment

The rest of this issue

Jacob Debets

1/8/2017 04:09:29 pm

There are 17 core subjects all JD students have to take. This will be reduced to 16 in following years due to Ethics and DR being merged into "Lawyers and the Legal Profession". Unless that number is further reduced (i.e. by getting rid of other doctrinal subjects, such as Corporations Law) we should be very hesitant to add another core subject. Eight electives isn't much to find your niche in law, and Legal Drafting is (at least compared to traditional courses) is fairly resource intensive - meaning less money to other worthwhile initiatives, like the PILI and international subjects.

You rightly point out that the law school hasn't responded to overwhelming student demand for more places in the drafting subject, but the appropriate solution is simply to open more spots as resources allow, not make the subject compulsory. I would also be curious to know where you got the number 300 for those on the waiting list (not questioning your honesty, just your sources).

(1) Not all students intend to become lawyers and thus don't need to take a legal drafting course to be more proficient in their jobs

(2) Legal drafting is a vocational skill - traditionally outside the law school's responsibility - and rightly the obligation of employers. That's what PLT/equivalent programs teach. Making legal drafting compulsory would blur that distinction and mean students spend less of their in law school figuring out which area of law they're actually interested in/engaging in critical analysis of substantive law

(3) The law school has experiential subjects with a much wider range of pedagogical objectives beyond "hard" skills like drafting. the Public Interest Clinics for example require students to write memos and interact with clients, but also have substantive critical/reflective components that are integral to students forming a professional identity and critical consciousness. If anything should be compulsory, a subject of that nature has my vote.

PLTsux

1/8/2017 10:50:43 pm

Not going to make any comments on the merits of this article's proposal but would like express on behalf of the vast majority of people with experience with PLT that not a single dam thing is learnt from PLT, let alone any legal drafting skills.

Not that Interested in This Subject

1/8/2017 04:19:05 pm

For some of the reasons Jacob mentions, I'm not convinced this subject should be compulsory. I personally feel skills in legal drafting can be honed in work experiences outside law school, and within individual subjects with practical assessment exercises - I personally enjoy, and do better, on weekend take home exams and written assignments that take the form of client briefs rather than on traditional three hour handwritten exams. Such exams are more realistic to what you will be doing in a law firm. I understand other students do not enjoy or do as well on this type of assessment and prefer a traditional quick exam, but this is more of an issue of assessors/lecturers needing to offer more choice from students to play to their strengths or what they would like to develop in their assessment.

As for the substantive issue of lack of places, I think this is the more salient point of what you raise rather than a good argument for Legal Drafting specifically being compulsory. The law school should teach electives to demand rather than having an arbitrary number of places and randomly assigning students to classes. The lack of transparency around getting into electives is the real problem - just because an elective is popular isn't a good argument for it being compulsory.

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Legal Drafting Should Be Compulsory

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