Syllabus: Contract Drafting Spring 2021

The course materials are the Tango Terms (a work-in-progress of mine).

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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).

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.

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.

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.

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

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. (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.

In five different weeks you will be assigned quizzes to complete as homework, each taking the form of an online quiz on Canvas. These quizzes will include progressively-more review material and accordingly will count for an increasing number of points. The fifth quiz will be an extensive review of the course material.

Each quiz:

1. will be untimed BUT will be available only starting at 9:00 p.m. on a Wednesday and due at 9:00 p.m. on the following Sunday (for uniformity), EXCEPT for the fifth quiz, which will have a longer period in which to work on it;
2. will 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;
3. will include a mix of true-false, multiple-choice, fill-in-the-blank, and/or “micro-essay” (short answer) questions;
4. 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;
5. 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.

As a semester-long project, students will build a services agreement between "MathWhiz" (the client) and "Gigunda Energy."

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.

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, 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 Tango Terms or other course materials won’t cut it becase I'll be looking for your thinking.

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.)