Learning Contract Drafting: Parallels with Translation

When it comes to contract drafting and negotiation, many attorneys deplore a disconnect between legal education and the needs of their profession. Without calling into question the necessity of theoretical knowledge, they feel that students aren’t sufficiently prepared for real-world practice. Some even share that they never had to read or draft any contracts before entering the professional world.

“It’s kind of crazy that in 5 years of law school, I had never read an entire contract. So when I was asked to do a contract review for the first time at work — of course I had no idea how to approach it.” — Jason Feng

Surprised by such accounts, I decided to take a closer look at this topic. This gave me the opportunity to draw some parallels with the way translators learn their trade.

Table of Contents

Real-World Practice

In the U.S., just like in France, initial legal education traditionally favors theory over practice. Among other skills, students must acquire legal knowledge, understand legal reasoning, and learn to apply these in any field.

Some institutions offer ways for future attorneys to build more practical skills, such as legal clinics. But emphasis is rarely on contract drafting and the clinics pertain more to contract disputes.

Regardless of experience, new and future legal professionals learn real contract drafting when they join a law firm or an in-house legal department:

• by reviewing contracts drafted internally, externally, or sent by other parties, which introduces them to varied drafting practices — for better or worse,

• by drafting contracts that are subsequently reviewed by more experienced lawyers — who ideally discuss any errors or problems to help them improve, and

• by starting from contract templates or reusing (and adapting) provisions from previous contracts (“precedents”) to avoid reinventing the wheel.

On-the-job training could be considered a logical follow-up to more theoretical education that skipped neither contract law nor legal drafting — practiced with other documents.

In addition, legal professionals must follow the practices of the law firms or legal departments they join. They also need to get to know their clients or company to draft contracts that reflect their situation and meet all their needs.

Similarities with Translation

Unlike legal professionals, translators come from diverse backgrounds. In France, the traditional path comprises a bachelor’s degree in one or more foreign languages followed by a master’s degree in translation, but many other paths exist.

Depending on their background, newcomers to the profession may lack proficiency in the languages they translate, knowledge of translation techniques, or familiarity with computer-assisted translation (CAT) tools — all gaps they can fill with motivation and organization.

While translation courses involve a lot of practice, a parallel can be drawn at the training stage between legal professionals and translators, whose education doesn’t stop after they graduate:

• Translators often start by reviewing translations and having their translations reviewed by more experienced colleagues. They may also keep working in pairs way beyond the training phase, as this leads to quality translations and contributes to the translator’s and the reviewer’s continuing education.

• Templates can be leveraged in specific cases — for instance, when translating official or due diligence documents. But each translator must create their own templates, and formats vary extensively by country or state, and can change over time.

• A translator working with a CAT tool can store sentences in pairs in translation memories (TMs). As they work on a sentence, their CAT tool automatically identifies the most similar sentences in their “old” TMs. They can then reuse translations as needed with a few changes.

Translators must also adapt to their employers or clients — each with their own processes and stylistic preferences. Depending on the nature of the projects they take on, they may need to familiarize themselves with new concepts, fields, or document types.

Continuing Professional Development

For translators and legal professionals alike, learning never stops. We must keep up with changes in language or law and in the areas we specialize in, and learn new skills we can bring to our work.

Continuing professional development (CPD) takes many shapes so that each person can learn at our their pace. Here are a few examples:

• books, e-books, and websites;
• massive open online courses (MOOCs);
• online, in-person, and hybrid workshops, conferences, and trade shows;
• week-long or month-long company coaching programs;
• longer courses, such as a one-year certification course or a two-year master’s degree; etc.

CPD Opportunities in Contract Drafting

In contract drafting, professionals and organizations have created resources to make up for the lack of practical, operational training:

• In English, Alex Hamilton, Contract Nerds, How To Contract, Jeanette Nyden, Ken Adams, Tiffany Kemp, Weagree, and Write.law with Ross Guberman offer books, courses, or blogs worth mentioning.

  And let’s not forget all the speakers of HTC Contract Con and ContractsCon!

• Harvard University also offers an interesting MOOC by Charles Fried on edX called “Contract Law: From Trust to Promise to Contract”.

For more examples of CPD opportunities in legal translation — including contract translation — you can take a look at the courses I have found helpful over the years.

CPD to Improve The Impact of Your Contracts

If you already have strong contract drafting skills, would you like to spruce up your contracts? Here are three tools you could use to adapt legal documents to your readers.

• Plain language “introduces drafting principles to make a document easier to read, understand, and remember.”¹ It can be found in contracts, administrative forms, legislation, and judicial decisions. It “reduces [the] mental effort and reading time”¹ of your audience, from ordinary citizens to judges.

• Legal design “is a collaborative process carried out with users” of a legal document, service, or product. It involves carefully selecting, organizing, and presenting information. “When it comes to legal materials, legal design improves the user experience to […] make users want to read and understand what they read.”¹

• Gender-inclusive language offers a range of writing techniques to “adapt our communications to our audience from a gender perspective.”² It helps readers “recognize themselves in texts that are targeted at them.”² For this reason, “some legal professionals see it as a tool for equality, equity, and justice.”³

If you would like to get training in these subjects, you can read my thoughts on Legal Writing Hacks for Lawyers, an introduction to plain language and legal design in English, or Écrire Sans Exclure, a training in gender-inclusive French.

Lack of Preparation or Logical Separation?

Legal and translation education can only teach foundational knowledge and skills. As young professionals from each field advance in their career, they need to expand on this foundation through specialized or complementary courses.

Learning by doing helps build and absorb skills, especially when one already has the theoretical knowledge needed to successfully put such skills into practice. And it’s even better if one can benefit from the feedback of more experienced colleagues!

With translation and contract drafting alike, practicing and having one’s work reviewed is the most effective way to improve — provided the right conditions are met. In future articles, we will see how law and translation students can prepare for the professional world and look at a few ideas for win-win reviews.

Would you like to share how you learned contract drafting or translation — and maybe ofer some tips or resources? Please do so on LinkedIn!