Syllabus: Contract Drafting Fall 2020

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

Updated Monday August 31, 2020 16:54 Houston time

Contents:

1 Basic information

1.1 Zoom ground rules

This semester (fall 2020), 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.

1.2 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 con-tracts;
  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.

1.3 What this course won't do

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

We have a total of 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 far more time and effort 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.

1.4 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.

1.5 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 https://goo.gl/4PRZTy.

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.

1.6 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 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. …”

• “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 ‘realworld 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 realworld 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."

• "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."

• "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."

• "His course is different from the norm and his methods are re¬freshing. … 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)."

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

• "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."

• "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.

• "I also felt that we did not have enough time to complete the quizzes." (From a different student's review:) "Most tests/exams we are used to taking in law school last hours, not minutes. If the timing is off on a test, then that basically destroys the effectiveness of the actual test as a way to measure how students are learning."

DCT response: By design, each quiz has too many questions. That way, students won't have time to look up many of the answers on-the-fly, and so those who don't need to do so will get a better score.

(This practice also has a pedagogical aspect to it: If you don't remember an answer while taking a quiz, it's better for you to be able to look it up right then and there, instead of guessing, because that little bit of real-time review will make you somewhat more likely to remember the correct answer next time.)

• "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 blank computer screen.

• "[W]hile I found it helpful that we started the pass-fail assignments in class and could discuss with fellow students and the instructor I would have liked more personal comments back on the finished product." (From a different student's review:) "Overall, I thoroughly enjoyed this class and learned a significant amount. The only change that I would be recommend [sic] is for the instructor to if at all possible [sic] decrease the amount of peer review of homework and substitute it with his own review."

DCT response: As discussed above, peer review provides each student with more opportunities to do short drafting assignments and get feedback; if we only did instructor feedback, we'd necessarily have fewer of these opportunities, and consequently less practice in drafting. That said, I've reworked the schedule of homework assignments and plan to do more review and commenting myself.

2 Administrative details

2.1 Computer use; email addresses

• 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.)

• 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.

2.2 Extra class time each day (to avoid needing 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.

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).

2.3 Recording my lectures: Go ahead if you want

I don't make audio recordings of my lectures, but I have no objection to students doing so and sharing the recordings with other UHLC students.

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.)

2.4 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. Notice of such changes will be announced as quickly as possible through email.

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

The last day of class will generally include:

  • (If we’re meeting in person by then:) Pizza for the section (6:00 p.m. or 7:30 p.m.) that has the highest average total score, including the class attendance, homework, and quizzes;
  • An overview of the final exam plan;
  • A collaborative review of key concepts, using the virtual whiteboards to create a master outline for each group — the virtual whiteboard ( 6:00 p.m. section | 7:30 p.m. section );
  • A group discussion of what would make the course and/or the materials more useful to next semester's students, and what didn't work so well, again using the virtual whiteboard;
  • Course evaluations, using the UH online system; and
  • As one last review: a Jeopardy! game.

3 General information

My contact information: I can be reached at dc@toedt.com 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. I’m happy to meet with students by appointment as follows:

HOW WHEN APPT. NEEDED?
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.

4 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 (http://www.uh.edu/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 http://www.uh.edu/caps/outreach/lets_talk.html for more information.

5 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.

6 Grading: Homework, final exam, attendance

The school’s required average: 3.20 to 3.40: As required by law school policy (revised for Fall 2020), raw grades will be adjusted proportionally to the extent necessary to make the average of the final class grades fall within the range specified in the heading of this section.

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

Your final grade is based on 700 total possible points: Your course grade will be based on how many of these points you earn, as explained below.

6.1 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:

   
TOTAL CLASSES MISSED TOTAL POINTS LOST
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.

• 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.

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.

ABA accreditation rules and school policy require 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.

6.2 Drafting-type homework: 50 points

Drafting-type homework will include some short drafting- and revision assignments, pass-fail. Schedule: TBD.

6.3 Four quiz-type homeworks on Canvas: 250 points

In four different weeks you will be assigned homework in the form of an online quiz. These homeworks will include progressively-more review material and accordingly will count for an increasing number of points, as stated in the schedule [TO DO: LINK].

Each homework will:

  1. be administered online via Canvas;
  2. be timed for probably an hour each (with extra time for students with accommodations), but you can start the homework any time in the "window" for that homework, generally an entire week;
  3. be open-everything (book notes, Internet), but NO communicating with other students — the Honor Code will apply, and you might be asked to electronically "sign" a certificate that you've followed the Code;
  4. include a mix of true-false, multiple-choice, fill-in-the-blank, and/or “micro-essay” (short answer) questions;
  5. 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 reinforcing review that takes advantage of the testing effect;
  6. 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 ….).
    • If a homework 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. 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.

6.4 Take-home, open-book review (“Quiz 5”): 100 points

This is an optional, untimed, open-everything, online review that you can do for extra points.

Note: Keep in mind that your final grade will still necessarily be tied to the class average required by school policy. But still, you’ll improve your chances of placing higher on the grade-distribution curve by earning more points.

6.5 Final exam: 200 points

The final exam will:

  • be one hour in length, at the time scheduled for the final exam;
  • consist in large part of what amounts to one of the quiz-type homework assignments on steroids;
  • take place in the to-be-designated final-exam room if we’re meeting in person, otherwise on Canvas; and
  • 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, and you might be asked to certify compliance with the honor code

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

  • in the assigned reading materials, including the flashcards, 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 course materials won’t cut it.

Proctoring by Zoom: If the final exam doesn't take place in a designated final-exam room at the Law Center, then we likely will do it in a Zoom call — as in, you'll be on a Zoom call as you take the exam at the designated time. (This is a suggestion from the administration as an alternative to using a locked browser and the Electronic Bluebook software.)

6.6 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 for a couple of students for whom it was like pulling teeth to get them to participate even minimally.)