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Researching and Drafting Realistic Clauses in Commercial Law


Rachel Avery is an Associate Professor (Teaching) in the Law School.  


A second-year module in commercial law that had been assessed solely by exam. 


The assessment was first changed in 2015. 


One key driver was the need to better align assessments with the skills and understanding that are associated with the module content in practice. There hadn’t previously been any opportunities for students to give presentations, engage in group work, or conduct independent research—all skills that commercial lawyers would use on a regular basis. The module conveners also wanted students to be able to learn from each other by working together and providing insightful feedback on their peers’ work, increasing both the authenticity of the assessment within the module (i.e. students’ work would directly benefit their peers) and in terms of application to future careers. 


The module convenors first chose an aspect of the module content to ring-fence, under which they identified distinct areas that students could research independently. 

For the formative element of the assessment, an additional tutorial was introduced to the module in which students were split into small groups and presented with a different topic each. Groups were given a few resources to get started, but the lecturers emphasised the importance of conducting further research themselves. The final group output was a presentation for the rest of the students in the seminar, who were encouraged to take a leading role in asking questions after each presentation. While the lecturers did correct anything that was patently incorrect, they hung back in order to allow the student discussion to drive the session. While this element was not marked, there was a clear link between the work the students did for the group presentation and the work that they needed to do for the individual summative. 

The summative assessment was essentially a legal problem set. In the first half, the students were required to draft a commercial clause dealing with the particular area of law that they had investigated in the formative. This meant that they were practicing practical drafting skills, but also making critical judgements about a very contentious area of law. Thus, as students did not have a generally accepted set of rules to follow to arrive at any ‘right’ answers, their drafts displayed a variety of approaches that were in keeping with what might actually happen in a legal setting.  

The second half of the summative required students to explain why they had made the decisions they did in drafting the commercial clause, as if they were explaining it to a client. This meant that they had to go back to the sources that they had researched and justify the choices that they had made in a way that would be comprehendible to a non-expert. They were expected to acknowledge aspects like the weaknesses in their drafts as well as the strengths, or where the clause might be vulnerable to a challenge in court.  

How did it go?

Some students were initially wary of the different form of summative assessment, and worried that it would negatively affect their marks. Some felt that they shouldn’t be asked to do authentic tasks at this stage (even though most were going into law careers eventually). The students seemed to feel confident in writing essays and exams, but were anxious about other forms of assessment. After the first run, however, the lecturers demonstrated to the students that this more authentic form of assessment did not have a detrimental impact on their marks, and students who had taken the module previously could also reassure their peers. 

Where the group presentation was concerned, student unease about a novel form of assessment partly influenced the decision to make it a purely formative exercise. As it unfolded, however, the lack of a summative mark did not seem to negatively affect students’ engagement. They evidenced a sense of responsibility within their groups (e.g. students who could not be there for the presentation made sure that they had done their bit, with some even making videos for the group to play instead), and responsibility to their other peers as well in presenting genuinely new content. Some healthy competitiveness among groups might also have encouraged full engagement, but this did not extend to the questions after each presentation, which were supportive and encouraging. 

This assessment seemed to encourage students to think a lot more about their topic than previous cohorts. It was easier to identify the students who had put a great deal of effort in and grasped the concepts well and those who had not, and the assessment seemed to make it clear to the students that they had to use their analytical skills and not try to simply regurgitate information. 

In terms of skills for future careers, these assessments have come up several times in the School employability board. Recruiters have commented on the advantages of these exercises in providing students with practical examples of previous experience that they can take into interviews and the workplace, indicating that they can help Durham students to stand out. The lecturers also noted that this kind of experience was especially advantageous for first-generation scholars who may not have the resources outside of the University to develop practical skills that would be important in applying for jobs. 

What’s next?

The formative group presentation had to be suspended during the Covid-19 lockdown, as the independent research required in-person library access, but now that teaching has fully returned to campus the lecturers are planning to reinstate this element. Before doing so they are intending to ask students for their views on how best to incorporate the presentation aspect into this work to see whether students would prefer some aspect of the presentation to be assessed, or whether they continue to prefer it not to be assessed.