Syllabus: Contract Drafting Spring 2021

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

Updated Thursday February 25, 2021 06:16 Houston time

Course materials: Notes on Contract Drafting (a work-in-progress of mine). (PDF) Update 2021-01-22: I've uploaded the first part only (due to size limitations) to Amazon for print-on-demand; it's in review by Amazon; I'll keep you posted.

Reading assignments       |       Homework assignments      
and the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4

1 Class plans

1.1 Class 09: Wed. Feb. 24

In the news:

1.1.2 Yes/no voting exercises

Discuss the following in your groups; when we return, use Zoom's Yes and No voting buttons for the following:

  1. FACTS: Gigunda wants its contract with MathWhiz to include a representation that MathWhiz isn't being sued by any of MathWhiz's other clients. QUESTION: From MathWhiz's perspective, which would be the better phrasing?
    • Yes: "To MathWhiz's knowledge, there are no lawsuits or other claims pending or threatened by any MathWhiz client against MathWhiz."
    • No: "So far as MathWhiz's officers at the vice-president level or higher are aware, there are no lawsuits or other claims pending or threatened by any MathWhiz client against MathWhiz."
  2. FACTS:
    • (A) MathWhiz and Gigunda sign their contract for MathWhiz to perform services.
    • (B) The contract includes a MathWhiz warranty that MathWhiz will render the services in a "professional" manner.
    • (C) Later, Gigunda demands that MathWhiz reimburse Gigunda for damages allegedly arising out of MathWhiz's professional malpractice.
    • QUESTION: If Gigunda were to sue MathWhiz for breach of warranty, would Gigunda be required to prove that Gigunda reasonably relied on MathWhiz's warranty? (Yes or No)
  3. QUESTION: Under English law, is it enough for a supplier to disclaim implied warranties? (Yes or No)

1.1.3 Homework prep: Employment agreement

DCT note: Based on the class discussion last night, I've updated the fact scenario and homework instructions.

FACTS (updated):

• Mary Marvel (MathWhiz's CEO) has told you that MathWhiz has agreed to hire a new director of business development, "Dave Doright," who splits his time between his home in Houston and his second home in Boise, Idaho.

• Dave is someone whom Mary really wants to "get"; he has several other companies interested in him.

• Mary has known Dave for a few years; she believes he is smart, ambitious, and driven, but also an honorable guy who — out of concern for his professional reputation, if nothing else — would not try to take undue advantage of MathWhiz.

• Mary would like for you to put together a simple, letter-style employment agreement that covers just the absolute bare minimum of issues, to increase the chances that Dave will sign the letter without getting a lawyer involved, because that could delay things and possibly jeopardize her "closing the deal" to get Dave on board at MathWhiz.

• BUT: Mary still wants the letter to be enough that she could take Dave to court if necessary. (See also my Tom Arnold story from earlier in the semester).


1. In a Word document, draft such a letter agreement — feel free to look for issue ideas in the model employment agreement provisions and in Sheryl Sandberg's employment agreement, BUT: Remember Mary's concerns about having the letter agreement cover just the absolute bare minimum of issues.

(The letter agreement should refer to "you" for Dave and to "MathWhiz" as the company.)

2. At the end of the Word document, draft the text of an email to Mary: In the email, provide a list of no more than three omitted issues that:

(i) you think are sufficiently important that you would normally want such a letter agreement to address — and why that's the case, i.e., what could go wrong if the issues aren't addressed in the letter agreement, BUT:

(ii) given the circumstances and Mary's expressed concerns, you think that in Dave's case it's likely an acceptable risk to omit those issues from the letter agreement.

Your draft email text should explain the above to Mary in matter-of-fact, nonjudgmental terms — DON'T write it in an accusatory tone implying that you don't support Mary's decision to proceed in this way.

(Remember: Our job as lawyers is to point out (i) possible what-if events; (ii) potential consequences if those events occur; and (iii) opportunities for avoiding or at least mitigating those risks. As long as we don't veer into unethical- or illegal territory, it's always the client's decision what risks to take or not take.)

THEN: At the end of the email, invite Mary to contact you if there's anything she'd like to discuss further.

[From last night's in-class exercise:]

TASK 1: In your groups, using the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4, brainstorm the "duties" and "compensation" sections and come up with at least rough language, which we'll look at when we come back to the main room. Feel free to look for ideas in the model employment agreement provisions and in Sheryl Sandberg's employment agreement.

TASK 2: In your groups (again using the virtual whiteboards), brainstorm a list of bare-minimum issues to cover in the homework due next week.

1.1.4 Reading review

  1. FACTS: Same facts as on Monday — you suggest that the 1L add a notices clause. The 1L's draft reads as follows: "Notices are effective three (3) days after being deposited in the U.S. Mail in a sealed envelope having first-class postage affixed and addressed as follows:" followed by specific addresses for notice. QUESTION: Any thoughts?
  2. QUESTION: From a litigator's perspective, what's an advantage of litigating (or arbitrating) a contract that includes illustrative examples, charts, diagrams, etc.?
  3. QUESTION: What's (likely to be) the difference between best efforts and reasonable efforts?
  4. FACTS: MathWhiz's CFO asks you to include, in the contract between MathWhiz and Gigunda, the following statement: "Gigunda acknowledges that it will pay MathWhiz's invoices net 10 days from date of invoice.
    • Yes | No: This is an acceptable way to phrase this MathWhiz obligation.
    • Yes | No: If phrased this way, Gigunda would have to have its contract signature notarized.
    • Yes | No: Gigunda is likely to go along with "date of invoice" terms.
  5. FACTS: MathWhiz's marketing director asks you to include, in the Background section of the Gigunda contract, the following: "Gigunda acknowledges that Gigunda desires to engage MathWhiz because Gigunda's in-house personnel do not have the skills needed for the services that MathWhiz will perform."
    • Yes | No: This is an appropriate thing to include in the Background section to help future readers understand the business context.

1.1.5 Exercise

  1. EXERCISE: We'll discuss Exercise 13.11.1 (selling Uncle Ed's car) from the reading materials.

1.2 Class 08: Mon. Feb. 22

1.2.1 Post-storm housekeeping

I've updated the schedule for the mid-term quizzes, reading assignments, and homework assignments.

[Note the use of the serial comma, a.k.a. Oxford comma, in the sentence above.]

Quoting the emails I sent to the class:

Friday Feb. 19, 5:44 p.m.:

All: I hope you've survived the freeze and its consequences without major personal inconvenience (we have). I've not received any guidance from the Law Center administration about what happens to the semester in view of missing a week of class. For the time being, let's assume that the remaining quizzes and homework-assignment due dates will be pushed back by one week. I don't know what that will mean as far as the end-date of the semester but will endeavor to keep you updated. I'll change the online class plan accordingly.

Monday Feb. 22, 5:44 a.m.:

I'm hearing from some students that they're still dealing with pipe-bursting damage and other consequences of the Great Texas Freeze and Blackout. Under the circumstances:

  1. I'm not going to count off points for late homework submission (by anyone) of the following assignments:
  2. Addams Family signature block (originally due Feb. 15, now due today [Feb. 22])
  3. Short employment agreement (originally due today, now due March 1)

For clarity, you still have to submit these assignments to get the associated points, but you won't be -docked- points for -late- submission.

  1. If you need to miss class tonight or this Wednesday because of other things you have on your plate due to these circumstances, please let me know and I'll not count it as a point-deducting absence. (Please -do- come to class if you can; as you've probably seen, your participation the in-class small-group discussion is an important part of the course and benefits your classmates as well as yourself.)
  2. Starting next week the usual points clawback for missing class and for late homework submission will resume per the syllabus.

See you tonight (as many of you as can make it).

1.2.2 Dilbert: A "Combat Barbie" distractor illustration

Apropos of "Combat Barbie" distractors — i.e., giving The Other Side's contract reviewer something to object to in an otherwise-balanced draft — see the Dilbert strip for Monday, Feb. 15, 2021.

1.2.3 Incentives & business planning: The Texas electrical grid

Last week's Great Texas Blackout serves as a large-scale example of the importance of incentives. Recall the observation of Warren Buffett's business partner Charlie Munger (section 11.7.3 in the readings): "Never a year passes but I get some surprise that pushes a little further my appreciation of incentive superpower. * * * Never, ever, think about something else when you should be thinking about the power of incentives." (Emphasis added.)

The incentives available to Texas power generators appear to have played a major role in the blackout:

When it gets really cold, it can be hard to produce electricity, as customers in Texas and neighboring states are finding out. But it’s not impossible. Operators in Alaska, Canada, Maine, Norway and Siberia do it all the time.

What has sent Texas reeling is not an engineering problem, nor is it the frozen wind turbines blamed by prominent Republicans. It is a financial structure for power generation that offers no incentives to power plant operators to prepare for winter.

Will Englund, The Texas grid got crushed because its operators didn’t see the need to prepare for cold weather ( Feb. 16, 2021) (extra paragraphing added).

And from the NY Times:

One example of how Texas has gone it alone is its refusal to enforce a “reserve margin” of extra power available above expected demand, unlike all other power systems around North America. With no mandate, there is little incentive to invest in precautions for events, such as a Southern snowstorm, that are rare. Any company that took such precautions would put itself at a competitive disadvantage.

Clifford Krauss, Manny Fernandez, Ivan Penn and Rick Rojas, How Texas’ Drive for Energy Independence Set It Up for Disaster ( Feb. 21, 2021) (emphasis added).

1.2.4 Addams Family homework assignment review

DCT to talk about the following from the homework assignment:

  1. Why might the Widgets sales rep be so eager to get the contract signed on March 31? (Hint: It has to do with the fact that Widgets, Inc. is a newly-public company.) A: To make his quarterly quota? To help Widgets "make the number" for what analysts are expecting?
  2. What about just signing it on April 1 when the family gets back to Houston? A: That wouldn't fly with Widgets' accountants, which want "ink on the signature line" by March 31 or they won't let Widgets book the revenue in Q1. (AND: An oral contract by March 31 won't work either.) (AND: Don't backdate the date-signed date on the contract; that could amount to securities fraud.)
  3. Is it physically possible for you to "make it happen" for the contract to be signed and delivered to Widgets, Inc. today, March 31? If so, how might you go about it? A: Try an electronic signature by email or text message — the Honolulu hotel probably has a business center with computers that could be used.
  4. If Wednesday Addams asks you to sign it as the company's lawyer, how should you respond? A: If it's a good and longstanding client relationship, I might do it, but otherwise I'd be reluctant. If I did sign it, my handwritten signature would be something like the following: "D.C. Toedt III, attorney for Addams Investments LP, by permission"

1.2.5 Reading review (1)

We'll discuss these in small groups.

  1. QUESTION: Can you think of some examples of a safe harbor clause?
  2. FACTS:
    • MathWhiz asks you to develop a form of services agreement for where MathWhiz is the service provider. The agreement form will be posted on MathWhiz's Web site so that MathWhiz's customers can easily review the agreement form.
    • MathWhiz's business-development VP wants you to make the form as tough as you can, to give MathWhiz maximum legal advantage over its customers.
    • You happen to know that MathWhiz also needs to engage another company to provide certain specialized services — that is, MathWhiz will itself be the customer.
    • QUESTION: Any thoughts?
  3. FACTS:
    • You're a new associate in a law firm.
    • A partner in the firm assigns a 1L law clerk to draft a guaranty agreement, under which the firm's client ABC Corporation ("ABC") will guarantee the payment obligations of one of ABC's subsidiary companies to another company, XYZ. The partner asks you to look it over.
    • The 1L law clerk's draft states (among other things, of course,) the following: "ABC represents and warrants that the ABC financial statements attached as Schedule 1 are true and correct."
    • QUESTION: Any thoughts?
  4. FACTS: Same as above, plus the following:
    • The 1L's draft says the following: "ABC may withdraw its guaranty if XYZ does not object within five business days after ABC gives XYZ notice of ABC's intent to do so."
    • The draft does not include a notices clause.
    • QUESTION: Any thoughts?

1.2.6 Reading preview: Methodical business planning

[DCT to talk through chapter 19 in the readings, which is newly-salient in view of the Great Texas Blackout of 2021.]

1.3 Class 07: Wed. Feb. 10

1.3.1 Quiz 1 review

Any questions? Comments? Could I have written any of the questions more clearly?

1.3.2 DCT rewrite of Monday's redrafting exercise



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 BLUF, "no Wall of Words" rewrite — which still has problems:


12.1 Licensor may terminate this Agreement if the royalties due hereunder have not been paid within the time allowed by this Licence Agreement. [DCT QUESTION: is there a notice-and-cure provision for this failure?]

12.2 Either party may terminate this Agreement by notice IF:

(1) (i) the other party breaches any of its promises, and/or (ii) any representation by the other party in this Agreement proves materially untrue; AND

(2) the other party does not remedy the breach or material untruth within 30 days after notice of breach from the terminating party.

12.3 Either party may terminate this Agreement if any of the following occurs:

(1) the other party has an examiner appointed over the whole or any part of its assets in accordance with law;

(2) a court of competent jurisdiction issues an order — or the other party's board of directors adopts a resolution — for the winding up of the other party's business, unless the order or resolution is part of an arrangement [NOT: scheme] for reconstruction or amalgamation of the other party.

12.4 Termination will be effective immediately upon notice of termination by the terminating party.

12.5 The terminating party need not give any other advance notice of termination except as set forth above.

12.5 Termination will be without prejudice to any other remedy available to the terminating party, at law or in equity.

1.3.3 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 — each student should "text" them TO ME ONLY in the Zoom chat feature.

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

1.3.4 Small-group session

  1. FACTS: You have graduated and are working as an associate for the law firm representing MathWhiz; you've just taken the bar exam. You've been asked to review a MathWhiz contract draft that has been prepared by a rising-2L summer associate. The draft says: "Gigunda represents that it shall arrange to pay MathWhiz a deposit in the sum-total amount of $10 thousand dollars ($10,000.00) no later than 10 days after this Agreement has been executed." QUESTION: Could the wording of this provision be improved?

1.3.5 Guaranties: A wall-of-words example

See this guaranty:

1. Guaranty. The Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all existing and future indebtedness and liabilities of every kind, nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary and whether for principal, interest, premiums, fees indemnities, damages, costs, expenses or otherwise, of the Borrower to the Lender, which arise from or are in connection with that certain Credit Agreement dated as of March 24, 2009, among the Borrower, Heald Capital, LLC and the Lender (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not defined herein shall have the meanings ascribed such terms in the Credit Agreement) and/or the other Loans Documents (including, without limitation, any Secured Hedge Agreement), whether associated with any credit or other financial accommodation made to or for the benefit of the Borrower by the Lender or otherwise and whenever created, arising, evidenced or acquired (including all renewals, extensions, amendments, refinancings and other modifications thereof and all out-of-pocket costs, reasonable attorneys’ fees and expenses incurred by the Lender in connection with the collection or enforcement thereof), and whether recovery upon such indebtedness and liabilities under the Credit Agreement and the other Loan Documents may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against the Guarantor or the Borrower under the Bankruptcy Code (Title 11, United States Code), any successor statute or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and including interest that accrues after the commencement by or against the Borrower of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed Obligations”). The Lender’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Guarantor and conclusive, absent manifest error, for the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing (other than the defense of final payment in full in cash and performance in full of the Guaranteed Obligations, except for contingent indemnification obligations for which no claim has been asserted). Anything contained herein to the contrary notwithstanding, the obligations of the Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar federal or state law

1.3.6 Ambiguity: Bingo

Spotted in a Facebook group: "My eight year old just asked me if Bingo is the name of the farmer or the dog. And now I am questioning everything I thought I knew about life." (Credit: @whitneyhemsath.)

1.3.7 Rewriting exercise: "Gross up"

TEXT: From this guaranty:

2. No Setoff or Deductions; Taxes; Payments. The Guarantor represents and warrants that it is organized in the United States of America. The Guarantor shall make all payments hereunder without setoff, counterclaim, restrictions or condition, and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions or withholdings of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Guarantor is compelled by law to make such deduction or withholding. If any such obligation (other than one arising (i) with respect to taxes based on or measured by the net income or profits of the Lender, or (ii) with respect to any withholding tax to the extent that such withholding tax would have been imposed on the relevant payment to the Lender under the laws and treaties in effect at the time such Lender first became a party to this Agreement or otherwise became entitled to any rights hereunder) is imposed upon the Guarantor with respect to any amount payable by it hereunder, the Guarantor will pay to the Lender, on the date on which such amount is due and payable hereunder, such additional amount in U.S. dollars as shall be necessary to enable the Lender to receive the same net amount which the Lender would have received on such due date had no such obligation been imposed upon the Guarantor. The Guarantor will deliver promptly to the Lender certificates or other valid vouchers (to the extent available) for all taxes or other charges deducted from or paid with respect to payments made by the Guarantor hereunder. The obligations of the Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.

EXERCISE: In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4, rewrite the italicized portion to be much more reader-friendly — as though you were talking to a lay jury.

QUESTION: Does the first sentence really belong in this provision?

When finished, come back to the main Zoom meeting (no need to wait for me to close the breakout rooms.)

[ADDED:] DCT Rewrite:

(a) It might be the case that taxes must be withheld from what you pay us. If so, then — except as stated in subdivision (b) — you will pay us enough extra so that, after taxes, we receive the same net amount as if the taxes had not been required to be withheld.

(b) You need not pay us extra under subdivision (a) for amounts withheld for:

        (1) withholding taxes on our net income or profits, or

        (2)  withholding taxes that would have been imposed on the relevant payment to us under the laws and treaties in effect at the time we first became a party to this Agreement or otherwise became entitled to any rights hereunder.

1.3.8 Ambiguity in an obituary: Going to heaven

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

1.3.9 Preview: Reps and warranties reading

1.4 Class 06: Mon. Feb. 08

1.4.1 Ambiguity exercise: Nestlé and Starbucks

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

QUESTION: Which company will sell the other company's coffee —

  • Will Nestlé sell Starbucks coffee? or
  • Will Starbucks sell Nestlé coffee?

(Which do you think is more likely?)

(Is it possible that Nestlé might pay Starbucks $7.1bn for the privilege of Nestlé selling Nestlé's own coffee?)

EXERCISE: In the Zoom chat window (TO ME ONLY), rewrite the above-quoted sentence twice — once for each possible interpretation.

1.4.2 Quickie writing exercise

TEXT 1: "The team held a meeting to give consideration to the issue." (Shortened) TEXT 2: "The team considered the issue." QUESTION: In the Zoom chat window TO ME ONLY: Is this "streamlining" safe? If not, why not?

1.4.3 Small-group session 1

INSTRUCTIONS: For each of the questions below, each group is to draft a written response that one group member — the "scrivener," an assignment to be rotated for different questions — can copy and paste into the Zoom chat window (TO EVERYONE) when we return to the main Zoom room. Feel free to use the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4 and/or to pull up Microsoft Word (or whatever) and share screens in Zoom.

  1. FACTS: Continuing the usury discussion with Mary from last week: Mary wants to know whether California law allows usury savings clauses for interest charges (given that California is where Gigunda is located). QUESTION: What do you tell her? (Hint: Do a quick online search about California law.)
  2. FACTS: "Alice" claims that a contract term means one thing, "Bob" claims that the term means something else. TRUE OR FALSE: The fact that the parties are arguing for different interpretations means that a jury will have to decide the winner of their "he said, she said" dispute. EXPLAIN.
  3. QUESTION: In the context of contract drafting, what does BLUF stand for — and why might it be significant to a client?
  4. QUESTION: Of the rules for note-taking during contract negotiations — and during other meetings as well — what does your group think are the TWO most-important rules — and why?

1.4.4 Ambiguity exercise: A black hole … in Chile?

See the following from Nsikan Akpan, Here is the first photo of a black hole (

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: Using the Zoom chat window TO ME ONLY, rewrite just the italicized sentence to clarify the likely intended meaning.

1.4.5 (Re)writing exercise: A termination clause

Consider the following provision (from a real contract):


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.

In the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4, take a stab at rewriting this provision to make it more readable and conform to the drafting style rules we've been reading about and discussing.

(Don't try to "retrade the deal" by altering the substantive terms.)

(I'll show my rewrite on Wednesday night.)

1.4.6 Small-group session 2

  1. FACTS: An apartment lease states (in part): "The apartment shall be regularly serviced by a professional pest-control service." QUESTION: This is an example of what? (Two words — and the words are not "passive voice.") QUESTION: Is this an example of acceptable drafting? Why or why not?
  2. FACTS: Same as the previous question. Are there any circumstances in which the above-quoted apartment lease provision might be sort-of acceptable, in the sense of "hold your nose and go along with it"? (Hint: Consider the role that context plays in interpreting contract language.)
  3. FACTS: [SAVED TILL WEDNESDAY] You have graduated and are working as an associate for the law firm representing MathWhiz; you've just taken the bar exam. You've been asked to review a MathWhiz contract draft that has been prepared by a rising-2L summer associate. The draft says: "Gigunda represents that it shall arrange to pay MathWhiz a deposit in the sum-total amount of $10 thousand dollars ($10,000.00) no later than 10 days after this Agreement has been executed." QUESTION: Could the wording of this provision be improved?
  4. FACTS: Mary Marvel asks you to add, in the background of the MathWhiz agreement with Gigunda, the following sentence: "Gigunda acknowledges that MathWhiz's data-processing algorithms are unique and MathWhiz's extremely-valuable trade secret." QUESTION: What's your response to Mary, and why?

1.5 Class 05: Wed. Feb. 03

1.5.1 From the practice

DCT to tell about a client call this morning:

  • Somewhat unfamiliar area
  • Research: Google,
  • Zoom call
  • Risk discussion, business-risk assessment
  • Follow-up email

1.5.2 Ambiguity: Cutting homeless people in half

Sent to me by a student (Megan Sheena):

Homeless people cut in half

1.5.3 Reading discussion (A)

  1. FACTS: Gigunda's services agreement template says that MathWhiz must comply with Gigunda's expense reimbursement policy. Mary Marvel, the MathWhiz CEO, asks what you think. QUESTION: What advice do you have for her?
  2. FACTS: Gigunda's services agreement template also says that MathWhiz must submit its invoices no later than 15 days after the end of a calendar quarter. QUESTION: What do you think Gigunda's motivation is? QUESTION: Will MathWhiz even care? QUESTION: What do you advise Mary Marvel?
  3. FACTS: MathWhiz wants to include, in its services agreement template, a provision for charging interest. • Mary says that she's heard of something called a "usury-savings clause," and asks whether such a clause should be included in the MathWhiz template. QUESTION: What do we not know that we should find out before trying to advise Mary?
  4. FACTS: For particular MathWhiz obligations, Mary wants the MathWhiz services agreement template to require only that MathWhiz use its "best efforts" to perform its obligations. QUESTION: Is this a "safe" clause to include? Why or why not?

1.5.4 Quiz #1 - up at 9:00 p.m.

This is a reminder about Quiz 1 on Canvas — one student hasn't yet accepted the course invitation (I don't know which student).

1.5.5 Reading discussion (B)

  1. QUESTION: What are some possible dangers of including "good faith" requirements in a contract?
  2. QUESTION: Why include a redlining representation? How do you think the lawyers you know would react to being asked to approve it in their clients' contracts?
  3. QUESTION: Why include a status-conferences requirement?
  4. QUESTION: How useful is it to state in a contract that the parties are "independent contractors"? EXPLAIN.

1.5.6 Ambiguity: 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?

1.5.7 Homework review, part 2

  1. STUDENT TEXT: "(e) Tenant must hold all information obtained during any inspection in confidence, except: (1) Tenant may disclose such information to its attorneys and advisors, provided; (A) Tenant informs such parties of the confidential nature of the information; and (B) uses good faith and diligence to cause such parties to maintain such information confidential."
    • QUESTION: What could be improved here?
  2. "(f) Any shortfall or excess revealed and verified by Tenant’s audit must be paid to the applicable party within: (1) 30 days after that party is notified of the shortfall or excess to the extent such overage or shortfall has not previously been adjusted pursuant to this lease."
    • QUESTION: What could be improved here?
  3. "Landlord shall keep reasonably detailed records of all Operating Expenses (“Expenses”) and Real Estate Taxes (“Taxes”) for at least two (2) years. Tenant and/or its representative shall be permitted to audit the above records by giving Landlord written notice not less than twenty (20) days’ prior to the audit date. Tenant shall exercise the audit right no more than once a year."
    • QUESTION: What D.R.Y. failures do we see here?
    • QUESTION: Would the reader be served any better by breaking this up any further? How far would you go in doing so?
  4. "Tenant, with any representative of tenant, shall be permitted to audit the records of the Operating Expenses and Real Estate Taxes if such audit is: • Not more than once every 12-month period; and • Prior written notice, of at least 20 days, is given to Landlord."
    • QUESTION: How could the bullet-point structure be improved?

1.6 Class 04: Mon. Feb. 01

1.6.1 Housekeeping: Quiz 1

Quiz 1, on Canvas, is coming up.

1.6.2 Ambiguity preview: Traffic signs

Ambiguous: See this sign.

More clear: This sign

1.6.3 Paperback of course materials

(DCT to show his copy.)

1.6.4 Homework comments, part 1

  1. STUDENT TEXT: "Tenant and Tenant’s representatives may audit OPEX and RE Taxes records: i. Once every 12 months and,  ii) After at least 20 days’ prior written notice to Landlord." (Revised.)
    • QUESTION: Does that mean an audit is OK, say, every three months as long as there's at least 20 days' prior written notice? And no notice requirement at all if every 12 months?
    • BETTER (from another student): "Tenant – or representatives of the Tenant – may audit the records once in a 12-month period. A written notice at least 20 days prior to the audit must be given to the Landlord."
  2. STUDENT TEXT: "Any inspection by Tenant shall be for the sole purpose of verifying the OPEX and/or RE Taxes."
    • COMMENT: I'd make this active voice, e.g., "Tenant may not conduct any inspection, nor use information obtained in an inspection, except for the sole purpose of verifying …." (Emphasis added.)
  3. STUDENT TEXT: "Tenant shall disclose information obtained during inspection solely to its attorneys and advisors, provided: (i) Tenant informs parties of the confidential nature of information. (ii) Tenant makes good faith effort to cause parties to maintain information as confidential."
    • COMMENT: I'd rewrite to say: "Tenant must not disclose information obtained during inspection except solely to its attorneys and advisors [DELETE: provided]. (i) Tenant must inform those parties of the confidential nature of the information. (ii) Tenant must make good faith efforts to cause parties …." (Emphasis added.)
  4. STUDENT TEXT: "a. Any shortfall or excess revealed by Tenant’s audit shall bepaid to the applicable party within 30 days after: (i) Notification of party. (ii) Overage or shortfall has not been previously adjusted pursuant to this Lease."
    • COMMENT: Item (i) is too terse; it doesn't make for a complete sentence if read together with the beginning of (a).
    • COMMENT: Item (ii) has the same problem: If you read the beginning of (a), and then go straight to (ii), it's not a coherent sentence, and it's supposed to be that.
  5. STUDENT TEXT: "(b) If Tenant’s inspection reveals that Tenant was: (i) Overcharged for OPEX or RE Taxes by an amount of greater than six percent, (ii) Tenant paid overage and, iii. Overage not adjusted pursuant to the terms of this Lease, (c) Then, Landlord shall reimburse Tenant for costs of the audit, up to an amount not to exceed $5,000." COMMENTS:
    • Same incomplete-sentence problems as above.
    • You wouldn't do a new subdivision c for the "THEN" part, because it's not a new sentence or thought.
    • Don't spell out "six percent."
    • REWRITE (by DCT): "IF: Tenant's inspection reveals that: (i) Tenant was overcharged for OPEX or RE Taxes by more than 6%; or (ii) Tenant paid Overage that was not adjusted as provided in this Lease; THEN: Landlord must reimburse Tenant …."
  6. STUDENT TEXT: "(III) If Tenant exercises its audit rights, as provided above, Tenant must conduct any inspection at a reasonable time and in a manner so as not to unduly disrupt the conduct of Landlord’s business. Any such inspection by Tenant must be for the sole purpose of verifying the Operating Expenses and/or Real Estate Taxes. Tenant must hold any information obtained during any such inspection in confidence, except that Tenant is permitted to disclose such information to its attorneys and advisors, provided Tenant: (1) informs such parties of the confidential nature of such information, and (2) uses good faith and diligent efforts to cause such parties to maintain such information as confidential."
    • COMMENT: This is good, but I'd break it up even further.
  7. STUDENT TEXT: "Tenant – or representatives of the Tenant – may audit the records once in a 12-month period. A written notice at least 20 days prior to the audit must be given to the Landlord. If Tenant exercises its audit rights, Tenant must conduct its inspection in a reasonable time and manner. Any audit conducted by Tenant may only be done for the sole purpose of verifying the records. Any information Tenant obtains through its audit is to remain confidential. Confidential information Tenant obtains may only be shared with Tenant’s attorneys and advisors."
    • COMMENT: Nice job pointing out that Tenant might want an outside auditor to do the audit. (That brings up its own set of issues.)
    • COMMENT: I'd break this up a bit more; confidentiality is enough of a separate issue that it's worth giving the reviewer some help by putting it in a separate paragraph.
  8. STUDENT TEXT: "If the audit reveals that Tenant paid an overcharge greater than 6% for Operating Expenses or Real Estate Taxes, Landlord may reimburse Tenant’s audit costs up to $5,000." (Emphasis added.)
    • COMMENT: That won't fly — Tenant will insist on being reimbursed in that situation; the discussion will be whether the threshold should be 6%, or something else.
  9. STUDENT TEXT w/ DCT notes:
    • "Landlord shall keep reasonably detailed records of all Operating Expenses and Real Estate Taxes for a period of at least two years. [BREAK HERE] Tenant, or a representative of Tenant, may audit the records of the Operating Expenses and Real Estate Taxes, but may not do so more frequently than once in every 12-month period. Tenant must also provide at least 20 days’ prior written notice to Landlord of such audit request."
    • "If Tenant exercises its audit rights as provided above, Tenant shall conduct any inspection at a reasonable time and in a manner that will not unduly disrupt the Landlord’s conducting of business. [BREAK HERE?] Tenant shall only conduct such an inspect[ION] for the purpose of verifying the Operating Expenses and/or Real Estate Taxes."
    • "If Tenant’s audit reveals any shortfall or excess of payment, the amount owed shall be paid to the applicable party within 30 days after that party is notified of the shortfall or excess, so long as such overage or shortfall has not previously been adjusted pursuant to this Lease. [BREAK HERE] If Tenant’s inspection of the records reveals that Tenant was overcharged for Operating Expenses or Real Estate Taxes by an amount of greater than 6%, and Tenant paid such overage and such overage was not otherwise adjusted pursuant to the terms of this Lease, then Landlord shall reimburse Tenant for its reasonable, third-party costs of the audit. However, reimbursement of expenses will not exceed $5,000.

1.6.5 Ambiguity exercise: Professor Lemley's pants

From a Facebook post by Stanford law professor Mark Lemley:

Things I appear to like more than my Facebook friends:

1. Pants

EXERCISE: What are the two possible meanings here?

1.6.6 In-class drafting exercise

FACTS (building on our earlier discussion):

  • Mary Marvel (CEO of MathWhiz) emails you to say that she wants to buy a barely-used, top-of-the-line laptop computer from Jane Jones, who lives in River Oaks (i.e., Harris County) and is "a friend of a friend" of Mary, but Mary doesn't know her.
  • Jane bought the laptop a few weeks ago but decided she didn't like the feel of the keyboard, so she wants to sell it and get a different one. (She's gone past the no-questions-asked return period from where she bought it.)
  • The purchase price will be $3,000.
  • Jane's address for notice is at 1600 River Oaks Blvd, Houston, TX 77019.

EXERCISE: In your groups — and you might want to divide up the work — in the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4:

  1. Put together a skeleton contract with a title, preamble, and signature blocks (don't worry about formatting the signature blocks, just put the necessary information in).
  2. Draft a background section.
  3. Put together a series of short, simple paragraphs with the "mechanics" of getting the sale done. For now, don't worry about representations or warranties or anything like that; just put in the bare-bones requirements to make a contract.

1.7 Class 03: Wed. Jan. 27

1.7.1 Paperback of (part of) course materials available

A paperback of the first part of the reading material (not including the Tango Terms because of size restrictions) is available from Amazon for $5.50 per copy plus tax and shipping (if any), which is basically printing cost, but I get a royalty of $0.05 per copy. I've ordered one for myself and will be curious to see what it looks like.

1.7.2 MathWhiz state of organization

I had thought that the facts stated that MathWhiz LLC is a Texas LLC — well, I just looked again, and that's not the case.

(DCT to tell the Janicke story.)

1.7.3 Homework review

Signature block sample:

Gigunda-MathWhiz signature blocks sample

Some examples by students (anonymous, of course); see the notes below each:


Retainer [0] Agreement
for Analyzing Seismic Data

This “Agreement” is between (i) MathWiz, LLC, a limited liability company organized under the laws of the State of Texas (“Service Provider”), with its principal place of business and its initial address for notice at [FILL IN ADDRESS FOR NOTICE] and (ii) Gigunda Energy [1], a global oil-and-gas company [2] organized under the laws of the State of California (“Retainer” [0]), with its principal place of business [3] and its initial address for notice at [FILL IN ADDRESS FOR NOTICE]. This agreement [4] is effective the last date written on the signature page.

Notes: [0] "Retainer Agreement" is kind of an unconventional title for this type of agreement. [1] Need Gigunda's full legal name. [2] You wouldn't say "global oil and gas company" in the preamble — in the Background, yes, but not in the preamble. [3] The principal place of business is usually just the city and state — the initial address for notice might be different. [4] At this spot in the preamble, you'd say "This Agreement" (capitalized), not "This agreement." (Ken Adams thinks otherwise.)


Services Agreement [0]

This "Agreement" is between (i) Gigunda Energy [INSERT FULL LEGAL NAME], a [ENTITY TYPE] organized under the laws of the State of [STATE] ("Buyer" [1]), with its principal place of business and its initial address for notice at [BUYER ADDRESS]; and (ii) MathWhiz, LLC, a limited liability company organized under the laws of the State of [STATE], with its principal place of business [2] and its initial address for notice at [SELLER ADDRESS] (“Seller” [1]). This Agreement is effective the last date written on the signature page.

Notes: [0] Good title. [1] "Buyer" and "Seller" should probably be "Customer" and "Service Provider" (or perhaps "Contractor"). [2] What's the comment here?


Service Agreement [0] [1]

This “Agreement” is between (i) MathWhiz LLC, a limited liability company organized under the laws of the State of [INSERT STATE OF MATHWHIZ ORGANIZATION] (“Service Provider”), with its principal place of business and its initial address for notice at [INSERT MATHWHIZ STREET ADDRESS], Houston, Texas [INSERT MATHWHIZ ZIP CODE]; and (ii) Gigunda Energy [INSERT ABBREVIATION OF GIGUNDA ENTITY TYPE], a [INSERT GIGUNDA ENTITY TYPE] organized under the laws of the State of [INSERT STATE OF GIGUNDA ORGANIZATION] (“Client”), with its principal place of business [2] and its initial address for notice at [INSERT GIGUNDA STREET ADDRESS AND CITY], California [INSERT GIGUNDA ZIP CODE]. This Agreement is effective the last date written on the signature page.

Notes: [0] Good title. [1] This is just about perfect. [2] What's the comment here?



This “Agreement” is between (i) MathWhiz, a Limited Liability Company organized under the laws of the State of [Enter state] (“Vendor”), with its principal place of business and its initial address for notice at [Insert address here]; and (ii) Gigunda, a Corporation organized under the laws of the State of [Enter state] (“Recipient”), with its principal place of business and its initial address for notice at [Insert address here]. This Agreement is effective as of the last date written on the signature page.

Notes: [0] Good title.

QUESTION: What issues do we have here?


Purchase and Sale of Seismic Exploration Services [0] [1]

This “Agreement” is between (i) MathWhiz LLC, a limited liability company organized under the laws of the State of [FILL IN LAWS OF INCORPORATION] (“Seller”), with its principal place of business and its initial address for notice at [FILL IN ADDRESS FOR NOTICE]; and (ii) Gigunda Energy, a global oil-and-gas company organized under the laws of the State of [FILL IN LAWS OF INCORPORATION] (“Buyer”), with it principal place of business in [FILL IN ADDRESS FOR NOTICE]. This agreement is effective the last date written on the signature page.

Notes: [0] In an agreement title, "Purchase and Sale" customarily refers to a purchase and sale of assets, not of services. (But it's not incorrect.) [1] Normally you'd want the word "Agreement" in the title — so, for this, it'd be perhaps "Purchase and Sale Agreement for Seismic Exploration Services."

QUESTION: What other issues do we have here?


Independent Contractor Agreement
for MathWhiz’s seismic data analytic services

This "Agreement" is between (i) MathWhiz LLC ("Contractor"), a limited liability company organized under the laws of the State of Texas with its principal place of business in Houston, Texas; and (ii) Gigunda Energy ("Employer"), a corporation headquartered in California, with a significant campus located in Houston, Texas. This Agreement is effective the last date written on the signature page.

QUESTION: What issues do you see here?


Independent Contractor Agreement
For MathWiz, LLC to analyze the seismic data for Gigunda [INSERT ENTITY] [0]

This “Agreement” [ADD: is] between (i) MathWiz, LLC, a limited liability company organized under the laws of the State of Texas ("Independent Contractor" [1]), with its principal place of business and its initial address for notice at [INSERT MATHWIZ ADDRESS] Houston, Texas [INSERT MATHWIZ ZIP]; and (ii) Gigunda [INSERT ENTITY], a [INSERT ENTITY] organized under the laws of the State of [INSERT STATE OF FORMATION] ("Hiring Firm"), with its principal place of business and its initial address for notice at [INSERT GIGUNDA ADDRESS]. This Agreement is effective as of the last date written on the below signature page.

Notes: [0] The subtitle is a bit wordy. [1] I'd use "Contractor" and "Client" (or perhaps "Customer") as the parties' nicknames.


Service Provider Agreement
For seismic data analysis

This "Service Agreement" [0] is between (i) MathWhiz LLC, a limited liability company organized under the law of Texas ("Service Provider"), with its principal place of business and its initial address for notice [INSERT ADDRESS]; and (ii) Giguanda Energy ("Client"), with its principal place of business, and initial address for notice [INSERT ADDRESS]. This Service Agreement is effective the last date written on the signature page.

Notes: [0] It's customary to use the term "This Agreement" and not the (longer) "This Services Agreement."

See also my other comments above.


Employment Agreement
for Analyzing Seismic Data

This "Agreement" is between (i) MathWhiz LLC, a limited liability company organized under the laws of the State of Texas ("Employee"), with its principal place of business and its initial address for notice at [FILL IN ADDRESS FOR NOTICE]; and (ii) Gigunda Energy, a company headquartered in [INSERT CITY, INSERT COUNTY] [0], California, whose initial address for notice is [FILL IN ADDRESS FOR NOTICE] ("Employer"). This Agreement is effective the last date written on the signature page.

Notes: [0] Any guesses about why it's not a bad idea to include the county?

See also my comments to the other examples above.

QUESTION: What other issues can you spot?

1.7.4 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 clarified?

1.7.5 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?

QUESTION: How could this be clarified?

1.7.6 Discussion questions

  1. Which is it: "Class starts at X o'clock": A) ten B) 10:00
  2. Which is it: "More than X people voted to re-elect President Trump": A) 74,000,000 B) seventy-four million C) 74 million.
  3. Which is used to indicate permission: May, or might?
  4. Which is used to indicate possibility: May, or might?
  5. True or false: An oral contract that might be completely performed in a year is invalid under the Statute of Frauds if it turns out that the contract isn't completely performed in a year.
  6. Explain if false: In the U.S., before parties can use electronic signatures, they must first sign a hard-copy preliminary agreement that they can use electronic signatures for subsequent agreements.
  7. Explain if false: Nowadays, most contracts get printed out in two copies, and each copy is signed by both parties, so that each party will have one, fully-signed original to keep.
  8. Explain if false: It's not a great idea to put signature blocks at the front of a contract. EXPLAIN.
  9. Explain if false: It's a good idea to include language such as the following just before the signature blocks: "To evidence the parties’ agreement to this Agreement, each party has executed and delivered it on the date indicated under that party’s signature."
  10. Explain if false: Signature blocks should have the "date signed" spaces pre-filled in so that the signers won't have to remember to write in the dates.
  11. Explain if false: Each individual signer's signature block should have a blank space for the signer to handwrite in the date signed.
  12. Explain if false: It's OK to let a signature block get split between two different hard-copy pages (that is, the first part of the signature block is at the bottom of one page and the remainder is at the top of the next page).
  13. What feature of Microsoft Word can you use to get two signature blocks side-by-side on the page? (Hint: It starts with "T.")
  14. (From Contracts 101 for 1Ls:) By law, what's the significance of the last date signed?
  15. Explain if false: The signature block for a corporation or LLC can just state the individual signer's name, e.g., "Jane Doe," without any other information.
  16. FACTS: ABC Corporation's marketing department is negotiating a contract with social-media giant Foogle for a $10 million online advertising campaign to promote ABC's products. At the request of ABC's director of marketing, ABC's vice president for human resources Allen Baker Cole signs the contract. BUT: ABC's CEO learns about the contract and immediately demands that it be set aside, because the CEO had planned to use that money for other things. ABC's internal policy manual states that all advertising contracts must be signed by the executive vice president for sale. QUESTION: Can ABC use Allen's lack of authority as a reason to cancel the advertising contract?
  17. DIFFERENT FACTS: Before the advertising contract was signed, ABC's vice president of marketing sent an email to his contact at Foogle, stating that only he (the VP of marketing) had authority to sign the advertising contract; the Foogle contact emailed back, saying "fine, that works for us." QUESTION: Does that change your answer in #16 above? If so, how?
  18. Explain if false: It's generally OK for an attorney to sign on behalf of a client as long as the signature (or signature block) indicates that the attorney is signing in that capacity and not as an officer of the client or as an individual party.
  19. Explain if false: It's generally OK for a company's vice president and general counsel to sign a contract with Thomson West for the legal department's Westlaw subscription.
  20. If exchanging signed signature pages only, how can you make sure each party's signed signature page is from the same version of the contract? (In one case, discussed in the reading, this was a problem — what happened there?)

1.8 Class 02: Mon. Jan. 25

1.8.1 Homework review

Points to note:

  1. "The following terms …": If the signature blocks are at the end of the contract (as is usually the case for conventional drafters), you wouldn't use the model paragraph about the terms that follow the signature blocks.
  2. Party nicknames: You want to be careful about how you pick the shorthand names for the parties; for example, in this context MathWhiz is not "Employer."
  3. LLC vs. corporation: The abbreviation LLC stands for "limited liability company," not corporation.
  4. Gigunda status? The facts don't indicate that Gigunda is a corporation; it's not unlikely, but we can't assume that — so leave a placeholder in ALL-CAPS, along the lines of, e.g., "[INSERT GIGUNDA ENTITY TYPE]." (We also don't know where Gigunda was incorporated; it could be California, it could be Delaware, it could be Nevada, or even elsewhere.)
  5. Nicknames alone in signature blocks? If the signature blocks are at the end of the contract, then it's fine to just use the nicknames, as long as the contract clearly indicates each party's full legal name and that party's nickname — "the needful" (as Brits might say) is that a new reader, looking at the contract, will be able to quickly confirm which party has or hasn't signed the contract.

1.8.2 Reading review (1)

Discuss in groups:

  1. Brexit agreement: QUESTION: What drafting "fail" happened in the Brexit agreement? QUESTION: What's one way the "fail" could have been avoided? QUESTION: More generally: In drafting a contract form that you expect to re-use for different parties, how could you make sure you didn't inadvertently leave in a former party's name?
  2. Ambiguity: QUESTION: When would a contract provision be ambiguous? QUESTION: Why would that be a bad thing?
  3. Quality of past contracts as go-by models: QUESTION: What's one reason that a contract that you found online might not be "Grade A" quality even if it came from a name-brand law firm? QUESTION: How might you ascertain that the contract came from a particular law firm?

1.8.3 Ambiguity: Plush carpets

From an article in The Guardian:

There will be plush lecture theatres with thick carpet, perhaps named after companies or personal donors.

Martin Parker, Why we should bulldoze the business school, The Guardian, Apr. 27, 2018 (

QUESTION: What, exactly, is named after companies or personal donors?

QUESTION: How could this sentence be rewritten to clarify it?

1.8.4 Reading review (2)

  1. Mission: What's are the two ultimate missions of any contract drafter, vis à vis future readers?
  2. Course objectives: QUESTION: Name one thing that you won't get from this course. From the reading, please — I'm not looking for "creative" answers here :-)
  3. Spaced repetition: Why is spaced repetition important in this course?
  4. Curve: HYPOTHETICAL FACTS: At the end of the semester, the Canvas system shows that you've scored enough points to get an "A" grade. QUESTION: Will you get an "A" grade? If not, why?

1.8.5 Reading review (3)

Discuss in breakout rooms:

  1. D.R.Y.: QUESTION: What does the initialism D.R.Y. mean? EXPLAIN IF FALSE: D.R.Y. is a hard-and-fast rule that applies in essentially all contract-drafting situations.
  2. Party nicknames: What are some pros and cons of using functional nicknames for the parties, such as "Buyer" and "Seller," instead of (let's say) "Betty" and "Sam."
  3. Preamble information: Why might it be useful to include the parties' respective principal places of business in the preamble of a contract?
  4. Effective date: EXPLAIN IF FALSE: It's pretty much always OK to backdate a contract if the business people want to do so.
  5. Party affiliates: FACTS: Gigunda wants its affiliates to be able to use its contract with MathWhiz as a prenegotiated "master agreement," so that a Gigunda affiliate can hire MathWhiz for a separate project, at the same pricing, by entering into a short-form contract. EXPLAIN IF FALSE: The preferred way to draft this is to state in the MathWhiz-Gigunda preamble that the parties are (i) MathWhiz, and (ii) Gigunda and its affiliates.

1.8.6 When style preferences clash

Discuss in the main Zoom room:


• Your client MathWhiz asks you to review a draft contract sent by a potential customer of MathWhiz.

• You notice that the draft spells out all kinds of numbers, e.g., "twenty thousand dollars."

• The draft doesn't also include the corresponding numerals in parentheses, i.e., it doesn't say "twenty thousand dollars ($20,000.00)."

QUESTION: When reviewing and revising the draft contract, do you change "twenty thousand dollars" to "$20,000.00"?

1.8.7 Drafting fail: American Girl

A CNN headline: "American Girl releases its first doll with hearing loss"

QUESTION: What's wrong with this?

QUESTION: In this context, does the problem matter in any real sense?

1.8.8 Reading review (4)

  1. "Whereas" clauses: FACTS: Gigunda's lawyer sends over a draft contract that begins with "WITNESSETH" and includes a bunch of "WHEREAS" clauses. QUESTION: Should you delete the "WITNESSETH" and rewrite the "WHEREAS" clauses to be simple background recitals? Why or why not?
  2. Background details: EXPLAIN IF FALSE: The Background section of a contract should serve as an "executive summary" of the specific business details of the parties' transaction (quantity, pricing, delivery dates, etc.).
  3. Why use client signer's title: Name TWO reasons — one "legal," one focused on client relations — for including, in your client's signature block, the title of the individual who will sign for the client.
  4. Conflict of interest? EXPLAIN IF FALSE: Ethically, when MathWhiz — i.e., the company — is the client, it'd be a conflict of interest to keep an eye out for Mary Marvel's personal interests.
  5. Running headers: Why is it a good idea to include, on every page of each draft, a running header that uniquely identifies that draft — for example, the hand-typed date and time, e.g., 2021-01-25 16:41:54 CST?
  6. Consolidated PDFs: FACTS: Each party signs its own signature page of a contract, scans its signature page, and emails the PDF to you as an attachment. QUESTION: What is it a good idea for you to do, and why?
  7. Board resolutions: EXPLAIN IF FALSE: When your client and another party (a "counterparty") are ready to sign a contract, it's usually a good idea to ask the other side's lawyer to get the other side's client's board of directors (or similar governing body, if not a corporation) to adopt a resolution confirming that the other side's officers are authorized to sign the contract.
  8. Notary certificates: What is the difference between an acknowledgement (in a notary certificate) and a jurat?
  9. Redlining: QUESTION: Why use a redlining representation such as this one? QUESTION: To what extent is it OK not to redline your changes in The Other Side's draft? QUESTION: What would you think about a lawyer on The Other Side who wanted to delete the redlining representation?
  10. Notetaking: Why is it a good idea to include, on every page of handwritten notes, the date, time, subject, and page number?

Class 01: Wed. Jan. 20


  • Introduction of each student via Zoom chat.

Course book - print on demand?

How many students would want to buy a print-on-demand version of the Tango Terms manual from Amazon? The price would be around $18 per copy for what I believe is a trade paperback; I'd get $0.01 royalty per copy (that is, one cent).

Use the Zoom "Yes" button to indicate that you'd want to buy a copy.

Set up email list and Canvas, etc.

• Provide emails for a Google Groups email list on the Group 1 virtual whiteboard at the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4

• Canvas setup: Enroll at (be sure to use your name so I can track progress and watch out for possible issues)

Read-along lecture

DCT to talk through this syllabus and the introductory parts of the [UPDATED:] Notes on Contract Drafting (a work-in-progress of mine). BE SURE TO READ these materials.

Ambiguity drill (1)

(We'll be doing a lot of ambiguity drills; apropos of the end of President Trump's term in office, here's one about him:)

TEXT, from a Maureen Dowd column in the NY Times, March 5, 2016: "Like Bill Clinton, Trump talks and talks to crowds. … [H]e creates an intimacy even in an arena that leaves both sides awash in pleasure." (Emphasis added.) QUESTION: What, exactly, leaves both sides awash in pleasure? How could this be clarified?

Discussion: Selling a used computer


  1. Let's assume you have an elderly, childless Uncle Ed who has no legal background.
    • Uncle Ed wants to sell his used 2012 Macbook Air laptop computer — he has all his marbles and wants to "move up" to a more-powerful machine.
    • Uncle Ed wants to get $350 for his machine (which at this writing is actually close to the going rate) and to sell the computer "as is."
  2. After Uncle Ed mentioned on Facebook that he wants to sell his computer, one of his high-school acquaintances, "Dale," contacted him and said he wants to buy the computer.
  3. Uncle Ed and Dale were never close in high school, and he hasn't seen Dale since graduation 50 years ago.
  4. Uncle Ed has asked you what to do to make sure he's "protected."

In the breakout rooms, discuss the following; feel free to use the group whiteboards (both classes):       • Group 1       • Group 2       •  Group 3       •  Group 4 for notes:

QUESTION 1: Is a written contract legally necessary? Practically necessary? Explain your thinking.

QUESTION 2: Would your answer to #1 be any different if Dale was Uncle Ed's closest friend, going all the way back to their high-school days?

QUESTION 3: Assuming Uncle Ed does want to have something in writing, what form could that writing take? (Be creative!)

QUESTION 4: Uncle Ed wants to be "protected" — from what, exactly?

(Part of your job is to try to think of what could go wrong, and, with your client, to decide whether it's worth trying to address those risks in your draft contract.)

Tales from the practice: Contract "signed" by email

Ambiguity drill (2)

TEXT, from The Kinks' famous song Lola (play the relevant clip on YouTube): "Well I'm not the world's most masculine man | But I know what I am and I'm glad I'm a man | And so is Lohhh-lahhh ….." QUESTION: When the artists sing, "And so is Lola," what exactly is Lola? EXERCISE: How that lyric line could be clarified? (Don't worry about rhyme or meter.)

2 Basic information

2.1 Course materials

Course materials: Notes on Contract Drafting (a work-in-progress of mine). (PDF) Update 2021-01-22: I've uploaded the first part only (due to size limitations) to Amazon for print-on-demand; I'll keep you posted.

For supplementary reading, some students like Professor Tina Stark's highly-regarded book, Drafting Contracts: Why Lawyers Do What They Do (2d ed. 2013), but whether to buy or rent it is entirely up to you; the online course materials contain everything on which you'll be tested. (The recently-published Kindle version is much less expensive than the trade paperback.) Disclosure: Tina is a longtime professional friend and mentor.

2.2 Zoom ground rules

This semester (spring 2021), the course will be done entirely by Zoom (and other online services) because of the global COVID-19 pandemic. Here are some ground rules you will be expected to follow.

  1. Be somewhere that your colleagues (and you) won't be overly distracted by noise and/or guest appearances by dogs, children, etc. (I'm pretty easygoing about these things, but be considerate of your classmates.)
  2. Your computer must have a working video camera and quality audio capability. (You might need an external microphone and/or a headset for decent audio quality.)
  3. You must join by video, not just by an audio-only phone connection.
  4. Leave your camera on, but it's fine if you need to step out for a minute, just as if we were meeting in person at the Law Center.
  5. Please be sure to speak up so that others can hear you. (Also, watch your mute button.)
  6. Be sure your name is shown in your Zoom profile, so that I'll know who's speaking.

2.3 Course objective: Exposure to the tools of the trade

Our primary course objectives and learning outcomes are to give each student an initial, survey-type exposure to the following tools of the contract drafter's and reviewer's trade:

  1. Techniques for drafting simple, understandable sentences and paragraphs to cover complex topics;
  2. Important legal doctrines, e.g., laws governing interest charges, indemnities, implied warranties, etc.;
  3. Crucial business issues that are commonly addressed in contracts;
  4. Practicing spotting and fixing language ambiguities that could cause problems down the road;
  5. The psychology of likely future readers such as business people, judges, and jurors;
  6. Finding and harvesting useful "precedents" (past contracts);
  7. Recognizing when to ask the partner or the client — and getting in the habit of documenting that you did so.

2.4 What this course won't do

First: Do NOT assume that we will "cover the material" in class.

We have a total of some 35 hours together in class. That's not nearly enough time to do justice to all the material you'll need to be aware of in order to be a competent contract drafter or reviewer. Possibly more than in your other courses, you'll need to be sure to do the reading if you want to get maximum benefit from the course.

As discussed below, the sage-on-a-stage lecture approach has been shown to be significantly less effective when it comes to comprehension and retention. For that reason, we will focus much of our class time on trying to make sure you understand and retain as many crucial points as possible.

Second: This course isn't like a driver's ed class, where completing the course will make you at least minimally competent to "go out on the road" by yourself. Becoming a competent contract drafter will take more time and practice than can be provided in a single three-semester-hour course.

Even after you finish this course, you likely will — and should — worry that you don't know what you don't know.

You could think of this course as being akin to a surgical-tools class in which medical students learn the basics of using scalpels, clamps, suture needles, and other surgical tools, and practice using those tools by doing a few simple procedures on an anatomical mannequin. Completing such a class, without more, should not make a student feel "comfortable" doing any kind of surgery on a live person. That's why newly-graduated doctors must still spend years in residencies to learn their trade. Much the same would be true if you were to try drafting a contract for a real client with no other training than this course.

2.5 Contract revising as well as drafting

In this course, we will practice good drafting skills — in part — by revising the work of others. This reflects what you're almost certain to see in practice: Contract drafters spend far less time drafting contracts than they do in reviewing and revising others' drafts, whether a given existing draft was prepared by "the other side" or was used in a previous deal.

Even when you're the one who must prepare the first draft, your supervising attorney will almost always tell you to find a previous form of agreement and modify it (and perhaps will suggest one), instead of starting from scratch with a blank screen.

2.6 Spaced repetition, with (some) jumping around

Some of the short exercises and quizzes that we do will seem repetitive; they also will seem to jump around from topic to topic. This is a feature, not a bug, because:

  • It mirrors what you'll almost certainly see in practice.
  • Pedagogically, spaced repetation been shown to be more effective at promoting long-term memory than lecture and repetitive reading; see generally the Wikipedia article at

This approach will strike some students as disorganized. Over the years, though, most students seem to have come to appreciate the value of the approach, as mentioned in some of the student comments below.

2.7 Social proof: Past student comments (good and bad)

Following the sales-and-marketing principles of (i) using social proof, and (ii) "setting the hook," here are some student comments from UH Law Center course evaluations; from virtual-whiteboard feedback at the end of various past semesters; and from the occasional email from former students:

• "I saw what I learned in class be used at my job, so that was great to be able to use what I learned already as a student practicing."

• “I had the opportunity to redline a software agreement for the company I intern with and the Contracts Lawyer told me I did a very fine job. … The lawyer asked me how I was so well attuned to the various ways in which the software providers tried to undermine our company’s bargaining power. … I was amazed at how easily I could identify problematic language. …”

• "His course is different from the norm and his methods are refreshing. … Professor Toedt's approach allows students to figure out the issue on their own but provides students with the tools necessary to reach an answer (which he then explains/corrects)."

• "I like the in class exercises. Very helpful to lock in the concepts. I would recommend more of these types of exercises throughout the class. Amount of reading was reasonable."

• "One of the best classes of my time in law school. Great progressive approach to teaching. I can only hope that UH will adopt Toedt's methodology for other classes."

• "I liked the practical approach of the course – very effective teaching technique by using repetition and in class exercises."

• "You learn piece by piece the process throughout the semester to be able to effectively draft/redline contracts."

• "I really enjoyed your class. At every class, I felt like I were a summer associate studying under a law partner and the partner (you) would take us to nice, low-key lunches and shared with us a bunch of practice tips through the Tango Terms. I really appreciated all the guidance. I like the formal drafting assignment (employment letter) a lot."

• "The [Zoom] breakout rooms work very well."

• "The course was a good survey of practical issues, both business and legal, that arise during contract drafting and negotiations. The textbook was easily accessible online, with class time focused on discussing the reading. The discussion-based class format combined with spaced repitition and the homework quizzes helped make the material more concrete. I thought the short-answer questions were a good addition to the quizzes, but I think more practice drafting exercises such as the offer letter would be more effective in providing hands-on learning. Compared to other courses, the reading and homework were relatively light, so Prof. Toedt could cover more material if he wanted to without overloading students."

• "I love the breakout rooms, the Google white board, and Canvas for quizzes." (Capitalization corrected.)

• "The course translated well to a virtual format, with breakout rooms substituting for in-class group activities. Using Canvas for online homework/quizzes also worked well."

• "I love this course. I learned a lot of real-life contract drafting experiences."

• “Professor Toedt's class was fantastic. I thoroughly enjoyed the content/delivery, and I learned more real world applicable information in this class than I have in most others. Having this class over Zoom was not ideal, but he made the most of it and kept the collaborative elements of the course intact. He clearly has a wealth of knowledge and experience.”

• “The course is very practical and a good refresher for drafting rules and key negotiations tactics, applicable in any area of practice of law. Prof. Toedt’s approach in utilizing his own written terms form (Tango Terms) makes the learning easier as we learn practically ‘from the horse’s mouth.’ I enjoyed his repetition style that allowed internalizing concepts, and the periodic quizzes that helped foster needed reviews and flashback to further the learning process. Great class, remarkable style, and awesome instructor!”

• “I've taken many courses at UH Law School, and I must say that this course was taught in the most ‘real-world application’ style in comparison to my previous courses. My experience with courses in the past was shaded by the bombardment of textbook pages and black and white material. What this class did phenomenally was apply the concepts of contract drafting in such a way that if I was to go into practice tomorrow, the tools that I have acquired in this class have made me more than adequately prepared. In light of these comments, I stress that Professor Toedt's emphasis on group collaboration and constant engagement in ensuring that students were learning through mediums of real-world practically made this class an absolute pleasure. He had set up the class in such a way where students were learning through their engagement with each other and with the help of brainstorming and the professors guided assistance learning these concepts didn't simply become ‘study and dump’ but meaningful and engaging learning. So again, I must say thank you. Thank you for not only taking time to develop the extensive course material but to also genuinely care in the process of teaching and learning that each of the students go through. This has been truly an unforgettable learning experience.”

• "Great job! Loved the quizzes. Very helpful class."

• "… really enjoyed the approach to class and quizzes."

• "Love the quizzes! They are really helpful to learn things, and the spaced repetition was excellent. Also they were a good way to test what we knew and where we were in class so we had an idea of how things were going."

• "I liked both the class and instructor and would recommend this course."

• “This was a great class, Professor Toedt's approach to teaching is clear and concise.”

• “Professor Toedt is the ‘original gangster’ (hereafter ‘OG’) of contract drafting. I'm fortunate to have taken his class. He is incredible. Thanks for your public service.”

• “Professor Toedt is remarkable at contract drafting. It is a privilege to take this class with him. He does his job exceptionally well. Very respectful man.”

• “Professor Toedt is great at what he does! He really knows his stuff and makes sure you know it too. I really like the approach of having different sections of a contract due as homework every week. This helped me really learn about the different sections and helped me stay on track to writing an entire contract by the end of the semester. All in all, wonderful professor!”

• “Very insightful and practical class. The professor is very effective in conveying the information in a rememberable and engaging fashion. I truly enjoyed this course and will be using what I learned in practice next year. Thank you, Professor Toedt!”

* * * 

Not everyone was so enthused; here are some less-positive comments, along with my responses.

• "The classes felt a little haphazard on a weekly basis." (From a different student's review:) "[T]he course is extremely unorganized …." DCT RESPONSE: The topics covered in the course are arranged in very rough order of importance (in my experience). And, as noted above, spaced repetition can indeed feel like jumping around, but it's key to the approach of this course.

• "I thought some of the reading assignments were a little long. It just looks daunting and I am not motivated when one section has 20-50 subsections." DCT RESPONSE: Noted — I've redone the reading assignments to indicate more what must be read closely, versus what can be merely looked over or skimmed (so that you'll likely remember that it's there and can look it up if you ever need it in the future).

• "I felt like we spent a ton of time revising contracts and simplifying them, but I'm still not sure that I have a great grasp of all the sections of a contract." (From a different student's review:) "I liked that the class stressed practical knowledge and what to look out for when reviewing contracts but I do not feel like that this has translated into me feeling confident (or even semiconfident) writing or reviewing a contract in real life." DCT RESPONSE: It's normal not to feel confident until you've had a fair amount of real-world experience that didn't blow up on you. Think back to when you first drove a car by yourself: You probably were just a bit nervous, which was entirely appropriate.

• "To me, I think the stress of a contract for a law student is the idea of, if you're assigned to write up a contract from scratch, your thought is, where do I even begin?" DCT RESPONSE: Noted; I'm thinking about how to remedy this with some kind of step-by-step procedure — although as pointed out above, contract drafters almost never start with a clean sheet of paper or a blank computer screen.

• "I would appreciate a little bit more traditional lecturing as opposed to asking us to discuss what we thought was helpful or surprising about the reading. I always left class unsure of whether I learned material properly. I enjoyed the break out rooms and working with the other students in the class the most." DCT RESPONSE: Noted, but the desire for traditional lecturing seems to be a minority view — and pedagogical research has shown that lecturing is one of the least-effective ways of information transfer.

3 Administrative details

3.1 Email addresses

On the first day of class I will be asking for your email addresses so that I can include it in a class Google Group. Please provide an email address that you check regularly.

3.2 Computer use

Computer use in class is not just encouraged but required; you will need in-class Web access for many of the in-class exercises. If this will be a problem, be sure to contact me well in advance.

(You might, however, want to rethink the extent to which you use laptops in your other classes; see, e.g., this article by a professor at the University of Michigan about how classroom laptop users not only do worse than those who take notes by hand, they also interfere with the learning of non-laptop users around them.)

3.3 Extra class time each day (to avoid a Friday-night makeup class)

I'm a practicing attorney and arbitrator; I normally don't have to miss class, but it has been known to happen, e.g., when I've had out-of-town commitments. There have also been times when we’ve had to cancel class due to weather. (And on the evenings of Game 7 of the 2017 and 2019 World Series, we canceled the evening class.) [DCT NOTE for spring 2021: Given that just about everything is being done by Zoom nowadays, it seems unlikely that we'll have to cancel class either for weather or for my travel.]

The ABA requires 700 minutes of instruction for each credit hour; that means we need 2,100 minutes of instruction for our three-hour course. We will achieve the needed minutes of instruction by:

  1. meeting for 80 minutes per class for 26 class meetings, vice the normal 27 scheduled class meetings, to get 2,060 instruction minutes;
  2. making up the remaining 40 instruction minutes via “online” instruction in the form of emails and other discussions, as permitted by ABA rules;
  3. using the resulting “spare” class #27 as a makeup day if necessary, otherwise ending the course at #26;
  4. as a last resort, meeting on one of our scheduled Friday-evening makeup days (not the situation of choice).

3.4 Recording my lectures: Go ahead if you want

I don't make audio recordings of my in-class lectures, but I have no objection to students doing so and sharing the recordings with other UHLC students. [NEW for spring 2021: I'm exploring possibilities for prerecording audiobook-style narration of the readings, so that people can listen to them; I'll announce it if that happens.]

The following is a UH-required element for the syllabus as provided by the Associate Dean's office:

Students may not record all or part of class, livestream all or part of class, or make/distribute screen captures, without advanced written consent of the instructor. [DCT note: See above for my consent.]

If you have or think you may have a disability such that you need to record class-related activities, please contact the Center for Students with DisABILITIES.

If you have an accommodation to record class-related activities, those recordings may not be shared with any other student, whether in this course or not, or with any other person or on any other platform.

Classes may be recorded by the instructor.

  • Students may use instructor’s recordings for their own studying and notetaking.
  • Instructor’s recordings are not authorized to be shared with anyone without the prior written approval of the instructor.

Failure to comply with requirements regarding recordings will result in a disciplinary referral to the Dean of Students Office and may result in disciplinary action.

(Extra paragraphing and bullets added.)

And a strongly-recommended syllabus element from the Associate Dean's office:

Any recordings created will be deleted and destroyed shortly after the final exam for the class. [DCT revision: I will usually delete recordings around one week after the class — I use my own Zoom account, which has limited cloud recording space.]

There is a chance that your contributions to class discussion, whether voluntary or while on call, may be included in the recording. Your continued registration in this class indicates your acquiescence to any such incidental recording for the purposes described above.

3.5 Synchronous online course

The following paragraph is recommended by the Associate Dean's office:

This course is being offered in the Synchronous Online format. Synchronous online class meetings will take place according to the class schedule. There is no face‐to‐face component to this course.

In between synchronous class meetings, there may also be asynchronous activities to complete (e.g., discussion forums and assignments).

This course may have a final exam per the University schedule. [DCT COMMENT: Make that "WILL have a final exam."] The exam will be delivered in the synchronous online format, and the specified date and time will be announced during the course. /[DCT COMMENT: See

Prior to the exam, descriptive information, such as the number and types of exam questions, resources and collaborations that are allowed and disallowed in the process of completing the exam, and procedures to follow if connectivity or other resource obstacles are encountered during the exam period, may be provided.

3.6 Syllabus changes?

The following is a UH-required element for the syllabus as provided by the Associate Dean's office:

Due to the changing nature of the COVID-19 pandemic, please note that the instructor may need to make modifications to the course syllabus and may do so at any time. Such modifications may could include changes to the mode(s) of assessment for the course. Notice of such changes will be announced as quickly as possible through email.

3.7 Last-day agenda: Reviews, Jeopardy, pizza?

In the Tango Terms manual, see the model syllabus for the last class day.

4 General information

My contact information: I can be reached at email or (713) 364-6545 (which also forwards to my cell); see also my About page. I respond pretty quickly to email questions. If I think that a question might be of interest to other students, I’m likely to copy and paste it (possibly edited, and with identifying information redacted) into an email to one or both sections.

My office hours: As an adjunct professor, I generally don’t physically come to the school except to teach class (and not at all during the pandemic). I’m happy to meet with students (on Zoom) by appointment as follows:

In person (when class meets in person) M or W 5:30 p.m. Yes
In person (when class meets in person) M or W 7:20 p.m. (ten minutes) No
Skype or Zoom video; phone M-F 3:00 p.m. Yes

I strongly encourage each student to make at least one appointment during the semester to discuss any questions that they or I might have.

5 Counseling available

Counseling and Psychological Services (CAPS) can help students who are having difficulties managing stress, adjusting to the demands of a professional program, or feeling sad and hopeless. You can reach CAPS ( by calling 713-743-5454 during and after business hours for routine appointments or if you or someone you know is in crisis. No appointment is necessary for the “Let’s Talk” program, a drop-in consultation service at convenient locations and hours around campus. See for more information.

6 Sexual harassment policy

The University is committed to maintaining and strengthening an educational, working and living environment where students, faculty, staff, and visitors are free from discrimination and sexual misconduct. If you have experienced an incident of discrimination or sexual misconduct, there is a confidential reporting process available to you. For more information, please refer to the University system’s Anti-Discrimination Policy SAM 01.D.07 and Sexual Misconduct Policy SAM 01.D.08, available here:

Please be aware that under the sexual misconduct policy, SAM 01.D.08, faculty are required to report to the University any information received regarding sexual misconduct as defined in the policy.

Please note that the reporting obligations under the sexual misconduct policy reach to employees and students.

Also, as a required reporting party, Law Center employees and faculty members are not a confidential resource.

7 Grading: 750 points

The school’s required average: 3.20 to 3.40: As required by law school policy, raw grades will be adjusted proportionally to the extent necessary to make the average of the final class grades fall within that range.

(My usual practice — but not a guaranteed one — is to “move the curve” up or down as necessary so that the average is at or near the high end of the required range.)

Your final grade is based on the total possible points stated above: Your course grade will be based on how many of these points you earn AND ALSO how well others in your section do, as explained below. (Note how the total points is /not repeated here, to be sure they stay consistent.)/

Important note: You might get very-high raw scores on the homework assignments and final exam, but keep in mind that the average for each section MUST be no higher than a B-plus. This means that the Canvas system might show you as having an "A" grade based on your raw scores, but what matters is how you do relative to the other students in your section.

(Each section is curved separately.)

7.1 Attendance “signing bonus”: 100 points — with a claw-back

Every student starts out with the above “freebie” points for class attendance, but can lose points for missing class, as follows:

1 0
2 10
3 30
4 60
5 or more all 100

This means, of course, that students who miss more than one class will have to do that much better on the final, the quizzes, and homework in order to keep up with their classmates on the school-required average.

Some absences won’t lose points, however:

• I don't count absences during the first week for newcomer students who join the class during adds and drops.

• I don’t count absences for “official” law school travel, e.g., for moot-court competitions, etc., as long as I’m informed in advance. (This seems of marginal relevance during the pandemic.)

• I also don’t count up to two absences for illness (yours or someone for whom you need to care, e.g., a child). If you’re ill and we’re meeting in person, please don’t come to class and infect the rest of us. Please email me if you’ll be absent for illness; I’ll take your word for it without a doctor’s note.

• Other absences, e.g., for job interviews, office visits, work trips, etc., will be counted as missed classes and will lose points as set forth above; please schedule accordingly.

• During times that we meet online via Zoom, I will track absences using the Zoom participant list or using other online tools.

Why attendance is especially important: The class attendance policy arises from the fact that we will be doing:

  • a significant amount of in-class discussion; and
  • a significant number of in-class exercises in small groups.

Consequently, it’s important for all students to attend each class, not just for their own benefit, but so that their teams won’t be shorthanded.

School policy requires attendance at 80% of the class meetings for each course. We will meet a total of 26 times; rounding to the nearest whole number of classes, a student therefore must attend at least 21 class periods to comply with the 80% rule.

7.2 Mid-term take-home quizzes: 350 pts

Take each quiz below — on Canvas — at any time starting at 9:00 p.m. on the Wednesday immediately preceding the due date.

Each quiz is open-everything (book, Internet, other reference materials). BUT: No collaboration with anyone else; there might be an Honor Code compliance question.

Each quiz will be timed; the duration is TBA but probably quite long The quizzes will be untimed. One of the principal purposes of each quiz is to provide students with an "opportunity" to review and work with the material.

The later quizzes will include material covered in previous quizzes (there's that spaced-repetition concept again).

Each quiz is due at 12:00 noon Houston time on the specified date. Late submissions will be docked points; the exact number of points is TBA.

  • Quiz #1: Due Mon. Feb. 08 — 20 pts
  • Quiz #2: Due Mon. Mar. 01 08 — 50 pts
  • Quiz #3: Due Mon. Mar. 22 29 — 60 pts
  • Quiz #4: Due Mon. Apr. 12 19 — 120 pts
  • Quiz #5: Due Mon. Apr. 26 — 100 pts (this is a more-or-less comprehensive review quiz).

These quizzes will include progressively-more review material.

Each quiz will include a mix of true-false, multiple-choice, fill-in-the-blank, and/or “micro-essay” (short answer) questions.

Each quiz will cover only the following:

  • the readings assigned up through and including the homework due date, whether or not we discuss any particular topic in class;
  • any review questions relating to the reading;
  • anything in the in-class and homework exercises that we have done to date — that way, the homeworks themselves will thus serve as a "spaced repetition" reinforcing review that takes advantage of the testing effect;

Each quiz will be graded partly anonymously — the Canvas software shows me students’ names; I can’t do anything about that, but:

  • Canvas automatically grades the true-false, multiple-choice, and fill-in-the-blank (“FITB”) questions.
  • I review any “incorrect” fill-in-the-blank answers so that I can give credit for simple misspellings, which Canvas can’t always pick up. (I program the quizzes on Canvas to accept as many misspellings as I can think of, but you’d be surprised how "creative" students can be in their spelling ….).
  • If a quiz includes any micro-essay questions, your answers to those questions will not be anonymous at all.

In past semesters, a few students have gotten the right answer to every question on a quiz; in response, one student suggested that I should “[d]esign quizzes to have a wider score distribution.” I’m less interested in a wide score distribution than in helping all students to understand and retain the material.

WARNING: If you just copy and paste answers from this document or from the model answers from previous quizzes you'll get zero points for that question, because:

  1. I need to see how you think;
  2. When you have to rephrase a concept in your own words, it helps you better grasp and retain the concepts.

7.3 Contract-drafting assignments: 100 points total

Students will draft a couple of simple agreements for "MathWhiz," a hypothetical client.

Successive drafts will be due at various dates

Students are free to work collaboratively, but if you partner up with anyone, be sure to note that on your submission.

WARNING: The warning just above about quizzes applies equally to drafting assignments.

7.4 Final exam: 200 points

The final exam:

  • will be one hour in length, at the time scheduled for the final exam;
  • will consist in large part of what amounts to a quiz on steroids;
  • will take place on Canvas (and can be done from anywhere); and
  • will be open-book, open-notes, open-browser — but no communication with anyone else, whether by text, email, IM, or anything else.

The Honor Code will apply; there will be a one-point question asking you to certify compliance.

What’s fair game for the final exam? Anything:

  • in the assigned reading materials, especially the "Pro tips" and "Cautions";
  • in the homework, quizzes, and in-class exercises.

Note: For the micro-essay questions, calling for one- or two-paragraph answers, just copying and pasting from the Tango Terms or other course materials won’t cut it becase I'll be looking for your thinking.

7.5 Class participation bump

As permitted by law-school policy, I reserve the right:

  • to award discretionary increases in student grades by one-third of a grade level for excellent class participation, e.g., from a B to a B-plus, assuming that this doesn’t cause the class average to exceed the maximum permitted; and
  • to reduce grades for sub-standard class participation. (I’ve almost never done that, except some years ago for a couple of students for whom it was like pulling teeth to get them to participate even minimally.)