Contract Drafting Fall 2020

By D. C. Toedt III
Attorney & arbitrator — tech contracts & IP
Adjunct professor, University of Houston Law Center

Updated Wednesday September 23, 2020 18:49 Houston time

1 Welcome & key links

Course book: The Tango Terms (revised Sept. 16) — a work in progress and likely to be revised again this semester, so I'd strongly suggest that you not print it out just yet.

First version for this course

Whiteboards for each section: virtual whiteboard ( 6:00 p.m. section | 7:30 p.m. section )

The breakout rooms have the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5

Reading assignments: Here (§ 3) (DCT to complete).

The Syllabus (which might be updated as the pandemic progresses)

2 Class plans

2.1 Class plan - Day 9 (Wed. Sept. 23)

2.1.1 Housekeeping

Reading for next week in the Tango Terms:

•  Chapter 3

•  Chapter 4

Calling on individual students

I'm going to try an experiment: Instead of having breakout groups choose a spokesperson, I'm going to call on people "randomly" — so each student should be ready to answer each breakout-room question.

2.1.2 Tales from the Practice: Contract "signed" by email

2.1.3 Tango Terms retitling?

QUESTION: How do you think business people would react to the Tango Terms being retitled as (something like) "A Contract Cookbook — Tested Recipes for Everyday Business Dealings"?

Use the Zoom voting:

  • Yes: Business people would think the book is likely to be accessible and easy to use
  • No: Business people would think it's an unserious book and not worth using

2.1.4 Exercise: Late payment

From a contract clause: "(4) Penalty for late payments: Late payments are subject to a penalty of 5%."

EXERCISE: Spot the issues.

(Be careful — as stated, the facts give rise to some hidden issues!)

2.1.5 Ambiguity exercises

Do all of these in one breakout-room session.

An obituary: Going to heaven surrounded by family

From an obituary: "Pamela went to heaven surrounded by family whom she loved …." QUESTION: What possibilities does this line evoke in your minds?

Ambiguity and a suspected pedophile

From this tweet by ABC Channel 13 (Houston): "Suspected Houston-area pedophile accused of assaulting 16-year-old arrested in Canada"

QUESTION: What are some possible interpretations of this tweet? How could it be clarified?

Ambiguity rewrite: Swearing to defend the Constitution 11 times

Here's a tweet I saw retweeted: "I’ve sworn to defend and uphold our Constitution 11 times."

QUESTION: What exactly does "11 times" refer to — defending and upholding the Constitution 11 times, or swearing to do so?

EXERCISE: Rewrite to clarify.

2.1.6 Exercise: Reps and warranties strategy (1)

FACTS: Your Aunt Jean is selling her used car to a stranger. She says she doesn't know of any mechanical problems.

QUESTION: If the stranger asks Aunt Jean to represent and warrant in writing that the car has no problems, how might she respond?

2.1.7 Exercise: Reps and warranties strategy (2)

MORE FACTS: You're now in an alternative universe where you don't know Aunt Jean, but you represent her prospective buyer, and her "used car" is a 1962 Ferrari 250 GTO, which she acquired for $48.4 million [note how this number is written] in a 2018 Sotheby's auction (link).

NOTE: DCT to provide here a brief overview of how major asset purchases generally proceed:

  1. A contract is signed, with —
    • reps and warranties by each party, establishing a written platonic ideal of what the purchased asset would be;
    • a disclosure schedule that lists the ways that the purchased asset differs from the platonic ideal;
    • a "due diligence" period in which the buyer gets to "kick the tires" more;
    • a go / no-go date by which the buyer has to decide: Am I going to close the deal, or not?;
    • a date, time, and place (often remote) for the "closing," at which the formal exchange is to take place; and
    • each party's obligations during between signature and closing — e.g., the seller mustn't do anything that would impair the value of the asset.
  2. The buyer does due diligence and decides whether to go forward.
  3. At the closing, money changes hands and ownership is conveyed.

EXERCISE: In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, make a simple list — don't worry about legalese — of the following:

  • the representations and/or warranties that you might want — think about things such as:
    • who actually owns the car;
    • whether anyone else has any claims to the car;
    • what condition the car is in;
    • what's the car's history;
  • what due diligence you might want to require Aunt Jean to allow your client to conduct after the contract is signed but before the closing;
  • what obligations your client would want Aunt Jean to honor between signing and closing;
  • how the closing will work mechanically —
    • how is money to change hands;
    • what must be done at the closing to satisfy your client that "we're done here" (the deal is complete, there's nothing left to do).

2.1.8 Exercise: Interest rate

FACTS: A partner in your firm sends you the following email: "Hey [your name], I'm heads-down on another matter — attached is a draft of a consulting-services agreement that I'm helping one of my clients negotiate; it has an interest clause in it, quoted below. Please make a recommendation about what I should say to the client about it." The interest clause is the following:

Past-due amounts will bear interest at 5% per month, compounded monthly, beginning on the day after the due date until paid.

QUESTION (for breakout rooms): What are you going to recommend to the partner as far as what the partner should say to the client?

2.1.9 Rewriting exercise: Earn-out computations

In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, simplify the following provision:

(c)     Within sixty (60) days after the end of an applicable Earn-Out Year, Purchaser shall (i) prepare or cause to be prepared a statement setting forth: (A) following Year One, the calculation of the Annual Earn-Out Payment applicable to Year One; (B) following Year Two, the calculation of the Annual Earn-Out Payment applicable to Year Two; (C) following Year Three, the calculation of the Annual Earn-Out Payment applicable to Year Three; (D) following Year Four, the calculation of the Annual Earn-Out Payment applicable to Year Four and (E) following Year Five, the calculation of the Annual Earn-Out Payment applicable to Year Five (with respect to each Earn-Out Year, an “Earn-Out Calculation”) and (ii) deliver the applicable Earn-Out Calculation to Seller, together with (A) reasonable supporting documents and (B) payment to Seller, by wire transfer of immediately available funds to an account designated in writing by Seller, of the Annual Earn-Out Payment, if any, calculated by Purchaser to be payable based on such Earn-Out Calculation. Seller shall have a period of thirty (30) days after receipt of the applicable Earn-Out Calculation with respect to the applicable Earn-Out Year to notify Purchaser in writing of Seller’s election to accept or reject such Earn-Out Calculation as prepared by Purchaser. In the event Seller rejects in writing such Earn-Out Calculation as prepared by Purchaser, such rejection notice (the “Rejection Notice”) shall contain the reasons for such rejection in reasonable detail and set forth the amount of the requested adjustment. In the event no Rejection Notice is received by Purchaser during such thirty (30)-day period, the Annual Earn-Out Payment for such Earn-Out Year (as set forth in Purchaser’s Earn-Out Calculation) shall be deemed to have been accepted and shall be final, conclusive and binding on the Parties hereto. In the event that Seller shall timely reject an Earn-Out Calculation, Purchaser and Seller shall promptly (and in any event within thirty (30) days following the date upon which Purchaser received the applicable Rejection Notice from Seller rejecting such Earn-Out Calculation) attempt in good faith to make a joint determination of the Annual Earn-Out Payment for the applicable Earn-Out Year, and such determination and any required adjustments resulting therefrom shall be final, conclusive and binding on the Parties hereto. In the event Seller and Purchaser are unable to agree upon the Annual Earn-Out Payment for the applicable Earn-Out Year within such thirty (30)-day period, then Purchaser and Seller shall jointly engage the Accounting Firm to resolve such dispute and promptly submit such dispute for resolution to the Accounting Firm. The Parties shall jointly instruct the Accounting Firm to make a determination within thirty (30) days after its engagement or as soon as practicable thereafter. The Accounting Firm’s determination shall be limited to resolving the disagreement set forth in the Rejection Notice. The determination of the Accounting Firm and any required adjustments resulting therefrom shall be final, conclusive and binding on all the Parties hereto. The fees and expenses of the Accounting Firm shall be allocated between and paid by Purchaser and/or Seller, respectively, based upon the percentage that the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Accounting Firm.

2.1.10 Exercise: Authority to expand warranties

TEXT: "No person except an officer of Client at the vice-president level or higher is authorized to agree to any other Implied Warranty on behalf of Client."

QUESTION: Does this make any sense? (Read it carefully!)

2.1.11 Payment terms: Early payment

From a contract clause: "10.1 Invoiced payments are due net 30 days from the date that the Buyer receives a correctly stated invoice. 10.2. Invoice payments are due 2% 10 days, net 30 days."

QUESTION: Any issues here?

2.2 Class plan - Day 8 (Mon. Sept. 21)

2.2.1 Correction: Representation definition

The Tango Terms definition of representation is inconsistent: In one place it says that a representation is a statement of past or present fact (which is correct), but then it says it's a statement of past, present, or future fact (which is incorrect).

2.2.2 Housekeeping: Reading for next week

Tango Terms:

•  Chapter 3

•  Chapter 4

2.2.3 Tales from law practice: A contract review

For a client, I reviewed and revised a non-disclosure agreement form ("NDA") provided by an agency of the State of West Virginia, substantially identical to this one.

Screen shot of markup:

QUESTION (for breakout rooms): What do you notice about this excerpt from the redline?

2.2.4 Ambiguity exercises

Discuss the following in breakout rooms.

Ambiguity exercise: Separate interviews

From an arbitration award I was writing (and caught myself): "Ms. Doe and her coworker Jane Roe were separately interviewed by Human Resources manager John Doe and Becky Bow."

QUESTION: How many people were interviewed, by how many people?

Ambiguity exercise: Masks and signs on cars

From a tweet encouraging attendance at an anti-lockdown protest in Maine: "[T]here will be a caravan around the Capitol … Monday. … Remain in your vehicles but masks, bandanas, flags and signs on cars are encouraged."

QUESTION: In your view, why are caravaners being encouraged to put masks and bandanas on cars?

QUESTION: How could this be rewritten to clarify?

2.2.5 Reading review

We'll do this in breakout rooms.

Appoint a spokesperson (rotate the job)

QUESTIONS TO DISCUSS:

  1. What surprised you?
  2. In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, make a list — in order — of the things in Chapter 2 that you think are the most likely to help your clients.

2.2.6 Discussion: Reps and warranties

We'll do this in breakout rooms.

Appoint a spokesperson (rotate the job)

  1. A warranty is much like a type of everyday business- and consumer "product" that's advertised on TV and is typically sold through agents — which one?
  2. In court, how is the Hill of Proof different for a representation as distinct from a warranty?
  3. In the U.S., can a drafter disclaim a warranty? If so, how?
  4. In the U.S., can a drafter disclaim a representation? If so, how? (Careful: The answer might be different in different states.)
  5. If you're a buyer, will you generally want your seller to make a representation, or a warranty? (Careful: This is a trick question.)
  6. Same question as #5, but now you're a seller.
  7. From a student-drafted contract: "Each Party may revoke this [warranty] disclaimer, in whole, or in part as provided below." QUESTION: Does this make sense from a business perspective?

2.3 Class plan - Day 7 (Wed. Sept. 16)

2.3.1 Housekeeping: Next week's reading

For next week: • Chapter 2 (representations and warranties) (from Tango Terms as revised 9/16/20)

2.3.2 Ambiguity exercises

In the breakout rooms, discuss BOTH of the following ambiguity exercises (Jewish grandmothers and "was clearly executed").

2.3.3 Ambiguity and Jewish grandmothers

In honor of Rosh Hashana Friday night, from Joshua Rothman in The New Yorker: "My grandmother is ninety-three and, to my knowledge, has never kept kosher."

QUESTION: Is there any way the bold-faced part could be misinterpreted (perhaps intentionally, by an adversary)?

QUESTION: How could this be rewritten to clarify?

2.3.4 Ambiguity: "… was clearly executed"

I received a series of four emails from the American Arbitration Association (AAA) about a form that the AAA asks each of its arbitrators to sign electronically every year. I've paraphrased the emails below. Email 4 is the one we'll be discussing.

EMAIL 1: "Please sign the Standards and Responsibilities form …." (So I did as requested.)

EMAIL 2: "Thank you for signing the Standards and Responsibilities form …."

EMAIL 3 (several days later): "According to our records, you haven't signed the Standards & Responsibilities form …." (So I forwarded Email 2 to them.)

EMAIL 4 (apologizing for Email 3, several days later): "We generated a list of who had and had not signed the Standards & Responsibilities form. For some reason, the list failed to include your entry, even though your form was clearly executed." (Emphasis added.)

QUESTION: What are the two possible meanings for the italicized part of Email 4?

QUESTION: How could the italicized part of Email 4 be clarified?

2.3.5 Exercise: Revisiting last week's termination clause

Recall what you did in the virtual whiteboard ( 6:00 p.m. section | 7:30 p.m. section ) to streamline a termination clause:
see Tango Terms 2020C § 9.7.4

This is the original language:

12. TERMINATION

If the royalties due hereunder have not been paid within the time allowed by this Licence Agreement or if either party shall breach of any of the representations, warranties, covenants, promises or undertakings herein contained and on its part to be performed or observed and shall not have remedied such breach within thirty (30) days after notice is given to the breaching party by the non-breaching party requiring such remedy or if either party shall have an Examiner appointed over the whole or any part of its assets or an order is made or a resolution passed for winding up of such party unless such order is part of a scheme for reconstruction or amalgamation of such party then the other party may forthwith terminate this Licence Agreement without being required to give any or any further notice in advance of such termination but such termination shall be without prejudice to the remedy of such party to sue for and recover any royalties then due and to pursue any remedy in respect of any previous breach of any of the covenants or agreements contained in this Licence Agreement.

Here's one possible rewrite — which still has problems:

12.    TERMINATION.

(a)       A party may terminate this Agreement:

            (1) if the royalties due hereunder have not been paid within the time allowed by this Licence Agreement; or

            (2) if either party shall breach of breaches any of the its representations, warranties, covenants, or promises or undertakings +herein contained and on its part to be performed or observed in this License Agreement and shall not have has not remedied such breach within thirty (30) 30 days after notice is given to the breaching party by the non-breaching party the other party gives notice of breach to the breaching party; or

            (3)  either party shall have has an Examiner appointed over the whole or any part of its assets or an order is made or a resolution passed for winding up of such party,             unless such order is part of a scheme for reconstruction or amalgamation of such party.

(b)       The other party need not give any further advance notice of termination.

(c)       Termination will not affect any right the terminating party has:

            (1)  to recover any royalties then due; and

            (2)  to pursue any remedy in respect of any previous breach of any of the covenants or agreements contained in this Licence Agreement.

EXERCISE: In your breakout rooms, analyze what changes were made — and why. If you wish, use the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5 to make notes. Pay particular attention to:

  • How is (a)(3) different from (a)(1) and (a)(2), and does it matter? (Hint: Try reading (a) as though (1) and (2) weren't even there: Does the language make sense?)
  • In (a)(3): If Party A breaches the agreement, does that allow Party A to terminate the agreement?
  • Is the terminology consistent?
  • In (b), does "the other party" fit?

2.3.6 Exercise: MathWhiz-Gigunda payment

FACTS:

1.  In the MathWhiz-Gigunda deal, Gigunda has informed MathWhiz that, for tax reasons, Gigunda wants the actual contract to be between MathWhiz and Gigunda's newly-formed Mongolian subsidiary, Gigunda Asia LLC, based out of Ulaanbaatar; the LLC's office is at Peace Avenue, Ulaanbaatar 21121 Mongolia.

2.  MathWhiz is a bit concerned that with this new arrangement it might not get paid, or might not get paid on time.

EXERCISE: In your breakout rooms:

(a) Brainstorm some ideas to give MathWhiz some additional comfort. Feel free to "think outside the box."

(b) In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, draft: (1) a preamble for the contract, and (2) "term sheet" summary terms for whatever payment-related arrangements you think would help the parties. CONSIDER: Could your proposals be quickly agreed to and implemented by the parties? Or would your proposals require time-consuming internal reviews and approvals, and/or involve getting third parties involved (at a cost)?

2.4 Class plan - Day 6 (Mon. Sept. 14)

2.4.1 Housekeeping: Quiz-style homework 1

Any thoughts?

2.4.2 Reading review

In groups (3- to 4 people per group)

Appoint a spokesperson (rotate the job)

QUESTIONS TO DISCUSS:

CHAPTER 11 (getting to signature sooner):

  1. What surprised you?
  2. What do you think about playing "hardball" in negotiation (or "The Art of the Deal")?
  3. Based on your own personal experience so far:
    • What part of chapter 11 do you think is the most likely to help your (eventual) clients?
    • What part of chapter 11 do you think is "meh …" ?

CHAPTER 13 (getting paid)

  1. What surprised you?
  2. Is there anything about Chapter 13 that you think would be particularly useful for clients to know?
  3. Clause 13.3 (expense reimbursement): What do you think clients would think about the Q&A format? (We'll do substantive questions in a litte bit.)
    • Vote "Yes": Clients would prefer Q&A format
    • Vote "No": Clients would prefer conventional subheadings
  4. What do you think clients would think if this and other Protocols were instead labeled "Rules," e.g., "Expense Reimbursement Rule," for incorporation by reference in short-form contracts? Analogy: Robert's Rules of Order (a manual of parliamentary procedure).
    • Vote "Yes": Clients would prefer "Protocol" (why?)
    • Vote "No": Clients would prefer "Rule" (why?)

2.4.3 Discussion exercise: Expense reimbursement

FACTS:

  1. You represent MathWhiz and are negotiating the services agreement with Gigunda.
  2. The "economics" of the deal involve Gigunda's reimbursing MathWhiz for various out-of-pocket expenses (e.g., travel and lodging to the Mongolian oil fields).
  3. Gigunda wants the services agreement to state that MathWhiz is to comply with Gigunda's standard travel-expense policies.

QUESTION: As MathWhiz's lawyer —

  • What do you recommend to MathWhiz?
  • If MathWhiz decides to agree to this Gigunda request, is there anything you'd want the contract to be sure to say, to help protect MathWhiz?

2.4.4 Quickie ambiguity exercises

Ambiguity exercise: A black hole … in Chile?

For any astronomy buffs in the class, see the following from Nsikan Akpan, Here is the first photo of a black hole (PBS.org):

Scientists at eight radio telescopes observatories … captured images of one black hole in our Milky Way — known as Sagittarius A* — and one in a nearby galaxy called M87, over the course of a week in April 2017. (The PBS NewsHour visited one in Chile when the project was still under discussion).

QUESTION: What are the two possibilities for the "one" that PBS visited?

EXERCISE: In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, rewrite to clarify.

Ambiguity exercise: Nestle and Starbucks

From this BBC.com article: "Nestle has announced that it will pay Starbucks $7.1bn (£5.2bn) to sell the company's coffee products."

QUESTION: Which company will sell which company's coffee —

  • Will Nestle sell Starbucks coffee? or
  • Will Starbucks sell Nestle coffee?

(Which do you think is more likely?)

EXERCISE: In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4       •  Group 5, rewrite twice — once for each possible interpretation.

2.4.5 Discussion: Interest clauses

QUESTIONS for small groups:

  1. What sort of things might not count as "interest"?
  2. Will a usury savings clause do any good?

2.5 Class plan - Day 5 (Wed. Sept. 09)

2.5.1 Housekeeping: Homework quiz #1

Homework quiz #1 is up on Canvas – available 9:00 p.m. tonight, due Sunday Sept. 13 at 12:00 noon.

There are 14 questions for a total of 20 points. The questions are mostly true-false and multiple-choice. When you finish, you should be able to see the correct answers and my explanation.

You get two attempts; the latest one will count.

It's untimed and open-everything, but NO working together. (There's a zero-point Honor Code question at the end, per a suggestion from the UHLC administration.)

2.5.2 Housekeeping: More reading assignments

See the reading list.

2.5.3 "Consumer survey" for Tango Terms "framing"

DCT to screen-share to show a possible new framing: "Operations plans" vice "contracts"

Please use the Yes and No buttons to vote on the following

QUESTION 1: Which of these do you think business people would prefer:
(Yes button:) "Contracts" with imperative language
(No button:) "Operating plans" with present-tense language

QUESTION 1: Which of these do you think business people would prefer:
(Yes button:) "Operating plans"
(No button:) "Operating protocols"

2.5.4 Ambiguity exercise: Successful men

2.5.5 Exercises: Chapters 7, 8, 9

See Tango Terms § 7.8

Breaking up a wall of words:
see Tango Terms § 9.7.3

Streamlining a termination clause:
see Tango Terms § 9.7.4

QUESTION: Is this "study-group revision" approach helpful? (Use the Yes / No buttons.)

2.6 Class plan - Day 4 (Wed. Sept. 02)

2.6.1 Housekeeping

No class Labor Day

2.6.2 Exercises: Chapter 4

See the questions in Tango Terms § 4.8 (in Zoom breakout rooms).

2.6.3 Exercises: Chapter 5

See the questions in Tango Terms § 5.10 (in Zoom breakout rooms).

2.6.4 Exercises: Chapter 6

See the questions in Tango Terms § 6.11 (in Zoom breakout rooms).

2.7 Class plan - Day 3 (Mon. Aug. 31)

2.7.1 Welcome newcomers?

Be sure to read the Syllabus, and catch up with the reading so far.

2.7.2 Housekeeping: Quiz-type homework due Sept. 13

See here (§ 3)

2.7.3 Housekeeping: New syllabus items

The Associate Dean's office has provided two inserts that are to be included in course syllabi; see the following:

• Recording of classes (not really applicable here)

• Syllabus changes possibility due to pandemic

2.7.4 Breakout groups: Surprises in reading?

In the Zoom breakout rooms:

1.  Compare notes about the reading:

  • What surprised you?
  • What are you not sure you agree with? (It's fine — I want to hear your opinions, especially based on any work experience you've had.)

You might want to use the virtual whiteboard ( 6:00 p.m. section | 7:30 p.m. section ) for notes, choosing one person as a "scribe" to take notes.

2.  Designate a spokesperson to "report out" when we reassemble in the main Zoom meeting room.

2.7.5 Ambiguity: Rodney Dangerfield

Here's the "Quotation of the day" from the NY Times morning-briefing email of August 2, 2017:

“His mother convinced him to open a savings account one summer so he could save up for a football uniform. Then she stole his money.”
Joan Dangerfield, the widow of the comedian Rodney Dangerfield, who was honored with a plaque in Kew Gardens, Queens, 13 years after his death. His childhood in the neighborhood prepared him for a lifetime of getting no respect.

QUESTION: Who was honored — Joan Dangerfield, or Rodney?

EXERCISE (in Zoom breakout rooms): Rewrite the first italicized sentence, which begins, "Joan Dangerfield" to clarify it. Pick a scribe to use Zoom chat to show your group's rewrite (when we return to the main Zoom meeting room).

2.7.6 Exercise: Stanford-Tesla lease intro

See the questions in Tango Terms § 2.6.4 (in Zoom breakout rooms).

2.7.7 Exercise: Gigunda-MathWhiz signature blocks

See Tango Terms § 3.6.1 (in Zoom breakout rooms, in the virtual whiteboard ( 6:00 p.m. section | 7:30 p.m. section ))

2.7.8 Discussion: Backdating

See the questions in Tango Terms § 3.6.2 (in Zoom breakout rooms).

2.8 Class plan - Day 2 (Wed. Aug. 26)

2.8.1 Newcomers?

Please email me (at dc@toedt.com) the email address you want me to use for the class Google Groups email list.

2.8.2 Ambiguity: Long hours in BigLaw

From Erin Johnston, Not All at Once, And Not All Alone, ABA Journal, Nov. 2018, at 14:

My success [as a Kirkland & Ellis litigation partner] has not been the result of a perfectly-executed master plan. But I can say that I have unapologetically asked for what I needed and was pleasantly surprised by the responses I received. No one above me assumed they knew what I wanted, or that what I wanted would always be the same.

At times I turned down opportunities to avoid travel or to focus on my family; other times I chose to take that trip or work long hours. …

(Emphasis and extra paragraphing added.)

QUESTIONS — DO IN CHAT BUT WAIT:

  1. What are two possible meanings of the italicized portion?
  2. How could the italicized portion be clarified?

2.8.3 Read-along lecture

Chapters 2 and 3

2.8.4 Exercises

The exercises from chapters 2 and 3.

2.9 Class plan - Day 1 (Mon. Aug. 24)

2.9.1 Course startup

1.  Student introductions — VIA ZOOM CHAT:

  • Name
  • 2L? 3L? LLM?
  • Career intentions
  • Undergraduate school & degree
  • Work experience
  • Previous contract experience

2.  First in-class exercise:* Where did I go to law school? Reason: It's a good idea to look up the people on the other side of a contract negotiation — or for that matter, anyone else you'll be dealing with. Google and LinkedIn are extremely useful for that purpose.

* Do this in Zoom chat, BUT wait till I say "go" to click "Send" so that everyone's answers will be launched simultaneously.

  1. For the Google Groups email list: If you'd like your email address on Google Groups to be something different than your UH.edu address, please email your preferred address to dc@toedt.com.
  2. Read-along lecture: Course info (in this document)
  3. My email address is dc@toedt.com — my UH.edu address doesn't always forward as it should.
  4. PSA requested by the University: Counseling is available ([BROKEN LINK: caps]).
  5. Set up Canvas and Perusall accounts

2.9.2 Thumbsucker questions: Goals, etc.

For discussion in small-group breakout rooms:

  1. In your practice, do you expect you'll be doing more drafting of contracts, or more review of drafts that others have prepared? Explain.
  2. What do you think are the main goals of a contract drafter or reviewer?
  3. In abstract terms, what do you think is the client's overarching goal in negotiating a contract?
  4. What do you think is likely to be the worst bottleneck in getting a contract to signature?
  5. What kind of contract language do you think business lawyers should aspire to write?

2.9.3 Skim-along preview lecture & exercises

Reading for this week in the Tango Terms:

2.9.4 Large group poll

  1. TRUE OR FALSE: A contract drafter should strive to anticipate and address all harms to the client that might occur in the course of the parties' relationship.

3 Reading & quiz-type homework schedule

3.1 Week 01 (Aug. 24)

Reading:

• This Syllabus

• Tango Terms chapters 1-3

3.2 Week 02 (Aug. 31)

Reading: Tango Terms chapters 4-6

3.3 Week 03 (Wed. Sept. 9)

No class on Labor Day

Reading: Tango Terms chapters 7-9

QUIZ-TYPE HOMEWORK 1: Due Sunday Sept. 13 at 12:00 noon.

3.4 Week 04 (Sept. 14)

Reading: Tango Terms (including associated commentary):

• Chapter 11 (getting to signature sooner) (for general info)

• Chapter 13 (payments)

3.5 Week 05 (Sept. 21)

Reading: Tango Terms (including associated commentary):

• Chapter 2 (representations and warranties) (from Tango Terms as revised 9/16/20)

3.6 Week 06 (Sept. 28)

Reading: Tango Terms (including associated commentary):

• Chapter 3 (Due diligence & oversight) (from Tango Terms as revised 9/16/20)

• Chapter 4 (Services) (from Tango Terms as revised 9/16/20)