Today, we’ve got a guest post from David Lourie at the University of Detroit Mercy School of Law. He will present the teaching exercise below at the Transactional Law and Skills Pedagogy Panel at AALS this year. Some of the other presenters may also post write ups of their teaching exercises as well. I’ll aim to link them all to each other as this goes on so readers can find interesting teaching exercises. — BPE
On the first day of my Transactional Skills course, I have students engage in an active, experiential exercise where they apply diverse aspects of transactional skills to a relatable problem. Later in the semester, when students have greatly enhanced their technical expertise, I assign students a related, out-of-class, multi-part exercise where they are graded. In both exercises, students have three main tasks: thinking strategically, negotiating, and drafting.
In the first exercise, I use a problem from Sepinuck’s Transactional Skills textbook as a starting point, but I greatly expand what the students must do so that I can preview the entire course and showcase the broad skills the students will utilize as transactional lawyers. First, I divide the students into groups of four. I then provide them with a scenario where they are moving into an apartment together for the law school academic year and provide background on each student, including their budget and social preferences such as quiet hours, cleanliness, and preferences on guest policies. I also present information about the “real” apartment, that I choose from listings of apartments in downtown Detroit where our school is located, such as the total rent, different room options, garage space, and campus location.
The students are first tasked to strategically discuss the issues that should be addressed in a “Roommate Agreement” among the four roommates (e.g., rent, social issues) and to prioritize those issues. I then ask each group to share the issues they believe should be in the Roommate Agreement with the entire class. Next, I facilitate an all-class discussion where we analyze the similarities and differences between the issues each group identified. As a class, we decide on the issues to address in the Roommate Agreement. This prepares students for what’s to come in the course: although students do not yet know the technical details of clauses such as a merger or indemnity clause, they begin to think strategically about the type of clauses that should be included and what those clauses should accomplish – so, for example, without using the word “merger clause,” a student may understand that they want to protect the integrity of the writing.
Next, I pick a particular clause the class has agreed should be in the Roommate Agreement – such as how the security deposit will be apportioned and who will be responsible if any issues limit the return of the deposit from the landlord, and have each group conduct an internal four-person negotiation of that clause, with each student representing their interests. Once the groups have negotiated the parameters of the clause, I have them work as a team of four to draft it for the Roommate Agreement. This previews for students the technical drafting skills they will learn during the semester: students often realize it is easier to “talk out” a contract clause than to draft it. Once each group has drafted its clause, I return to an all-class discussion. I put each group’s clause on a slide, and the class discusses the strengths and weaknesses of the clause. This allows me to introduce concepts such as covenants, conditions, and declarations and how they should be utilized when drafting.
This exercise effectively engages students by taking a holistic approach to transactional skills. Students have three main tasks: thinking strategically, negotiating, and drafting. It simulates what students will be doing as transactional lawyers and the skills they will learn throughout the semester through an experiential exercise that is relatable and accessible. This is not just a theoretical exercise but a practical simulation of the future work students will be doing, reinforcing the relevance of the course to their future careers.
As the semester progresses and the students’ technical knowledge of contract drafting and strategy grows, we perform an enhanced multi-part exercise where the expectations are higher (students draft the entire contract), most of the work takes place outside of class, and the assignment is graded. Here, I divide students into groups of four, with one group representing the law school’s Student Bar Association (“SBA”) and the other representing a downtown Detroit venue where the SBA is hosting a Halloween party. I provide the two sides with different instructions – describing what their side is seeking to obtain in a written contract to have a successful event.
There are three parts to this assignment. First, the groups of four meet internally to discuss their strategy and the clauses they believe should be in a final written agreement and turn in a written “strategy memo” that documents this. Next, I give the groups one week to negotiate the full agreement terms with their counterparts (i.e., price, cancellation, venue logistics, etc.). Once complete, each group turns in a “negotiation memo” that discusses the results of their negotiations and assesses how it went – what went well and what they would look to improve on. Lastly, I give each group one week to draft the final written agreement between the SBA and the venue. At this point in the course, the students are experienced in the technical aspects of contract drafting and can draft a contract as they will as associate attorneys at their future jobs.