LAW-710: CONTRACT DRAFTING AND STRATEGY, SPRING 2021

Professor Andrés Cantero, Jr.

Mondays 5:30-7:20pm

SYLLABUS
________________________________________________________________

Overview

This course presents the fundamentals of contract drafting, analysis and strategy in a
transactional practice. The objectives of this course are for each student to develop:

• Determine how to select and use form agreements to your advantage.

• Demonstrate proficiency in evaluating, challenging, deconstructing, and revising
agreements.
• Draft contracts and clauses in a precise, comprehensible, and easy-to-follow
manner.
• Adapt drafting style based on the client, the parties' relationship, and the audience.
• Draft with your client's needs and concerns in mind.
• Draft effectively by asking the right questions and anticipating problems.

By the end of the class, you should have a strong understanding of the formatting of a contract
and of the “miscellaneous” or “boilerplate” provisions (the generic looking clauses usually found at
the end of the contract). Many of these clauses will be in every contract you draft. In order to
avoid drafting pitfalls, you need to be very familiar with these clauses, why you might decide to
include them in your agreement and where the negotiation lever points are.

Over the course of the semester, I suggest that you create a contract drafting kit which contains
multiple versions of the contract clauses that we review and precedent to go back to for future
reference. This kit will serve as a valuable tool during this class and during the practice of
transactional law and will assist you in the final exam.

In addition to reviewing individual contract clauses, we will review and negotiate various types of
agreements that are commonly seen in the practice of transactional law. Throughout the course I
encourage you to pay attention to key clauses and issues related to each of these agreements.

This course will also cover basic issues in contract negotiation theory and ethics. In-class and
out-of-class exercises will help you practice skills you learn in class. We will conduct in-class
mock negotiation exercises involving a variety of contract types and situations to prepare you for
negotiations you may encounter in your legal career.

Required Texts

1. Books: Adams, C., and Kramer, P. (2020) A Practical Guide to Drafting Contracts: From
Concept to Closure (Second Edition) ISBN-13: 978-1543810622 ISBN-10: 1543810624

2. Articles: Please refer to the weekly reading table at the end of this syllabus for a complete
list of articles or other readings.

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 Grading

Grades for this class will be based on three components:

(1) Class Participation 20% of final grade

(2) Weekly Assignments 40% of final grade
(3) Final Exam – Letter of Intent 40% of final grade

Weekly Assignments Rubric

Scoring Comprehension Clarity Explanation

5 - 10 The student does not show any The assignment is not clear and is The student does not have any rationale for
Points understanding of the materials difficult to understand the choices made in the assignment

The student gives some rationale for the

The student shows some understanding The assignment is understandable to
10-15 choices made in the assignment but they do
of the materials, but misses a major an extent but contains drafting
Points not comport with the materials and
component problems
discussions

The assignment is mostly The student is mostly able to rationalize the

15-20 The student shows an understanding of
understandable but contains some choices made in the assignment and they
Points most of the materials
minor drafting issues comport with the materials and discussions

The student is able to rationalize all choices

20-25 The student shows an understanding of The assignment is fully
made in the assignment and they comport
Points all of the materials understandable and well-drafted
with the materials and discussions

Letter of Intent Rubric

Scoring Comprehension Clarity Explanation of Drafting Choices Understanding the Risks

Based on the comments to the client,

Based on the comments to the
The LOI shows a lack of the student shows no understanding
5-10 The LOI is not clear and is client, the student shows no
understanding of the deal of the student’s drafting choices (i.e.,
Points difficult to understand understanding of the client’s risk
terms alternatives available to the student
in the student’s drafting choices
based on the deal terms provided).

The LOI is understandable

Based on the comments to the client, Based on the comments to the
The LOI shows an to an extent but contains
10-15 the student shows some client, the student shows some
understanding of some of drafting problems. For
Points understanding of the student’s understanding of the client’s risk
the deal terms instance, terms of the deal
drafting choices in the student’s drafting choices
are incorrectly written

The assignment is mostly

Based on the comments to the
understandable but Based on the comments to the client,
The LOI shows an client, the student mostly shows
15-20 contains some minor the student mostly shows an
understanding of most of an understanding of the client’s
Points drafting issues, such as understanding of the student’s
the deal terms risk in the student’s drafting
misspellings or incorrect drafting choices
choices
party names

Based on the comments to the

The LOI shows an The LOI is fully Based on the comments to the client,
20-25 client, the student shows full
understanding of the deal understandable and well- the student shows full understanding
Points understanding of the client’s risk
terms drafted of the student’s drafting choices
in the student’s drafting choices

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You are expected to attend class, actively participate, and complete your assignments on time.
You may miss one class without penalty, provided you provide advance notice (to the extent
feasible). There will be assigned drafting and reading activities to consider in advance of each
class. Please come to class prepared.

Assignment Formatting

1. All documents should be in Microsoft Word format.

2. Papers must be typewritten or word-processed, double-spaced, with 12 point font.
3. Make sure you keep a copy of all submitted papers.
4. Typos and spelling errors are unforgivable at this level and reflect poorly on you.
5. Include citations, references, and other appropriate weblinks.
6. All page length requirements are for double-spaced pages, with 1-inch margins, in 12-point
Times New Roman font.
7. The student’s revisions to a contract shall be shown in track changes.
8. The student may put questions to the professor about a contract in a comment bubble with
the comment starting with “Question for Professor –“.

Assignment Deadlines

Assignments are due no later than 11:59 p.m. in the Pacific Time zone on the day that is stated
in the assignment page. Late assignments receive a 5 point deduction for each day they are late,
with no credit given for work submitted after 72 hours (three days) from the original due date
(“Late Assignment Policy”).

This Late Assignment Policy may be revised at any time and for any reason during the course of
the semester. If a student has questions about the policy, please contact me.

Contact Information: [email protected]

Course Outline

This is my current expectation of what the course will cover, but this outline is subject to change.
I will be posting class materials on Blackboard and communicating with you via email to deliver
assignments and other class information.

# Date Topic
1 Jan.10 ♦ Review Syllabus
♦ Introduction to Course
♦ Introduction to Contract Drafting Principles
♦ Negotiation Ethics
♦ Tips for In-Class Assignments
No Assignment
-- Jan. 17 No Class – MLK Day
2 Jan. 24 Textbook: Chapter 2 and 3

Online Resources:

Writing Contracts in the Client's Interest, (Introduction and Part IV only)

TED Talk - Let's Simplify Legal Jargon!

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# Date Topic

Assignment: Two-page summary comparing agreements due January 22.

3 Jan.31 Textbook: Chapters 4 and 5

Online Resources:
Writing Contracts in the Client's Interest, 51 S.C. L. Rev. 153 (PDF) (Fall 1999), James P. Nehf
(Part II.A. only)

Style from Beginning of Contract Form (PDF): This document offers a side-by-side comparison of
traditional and modern introductory provisions of a joint venture contract.

27-75 California Legal Forms--Transaction Guide § 75.221 (Word): This form document explains
and illustrates basic elements of the beginning of a commercial contract. Note that although this
example introduces recitals with the archaic term “Whereas,” it is unnecessary to include
“whereas” in modern contracts.

Rules of Contract Interpretation and Canons of Construction: Relevant Tools for Contract
Drafting (Word)

"A Checklist for Drafting Good Contracts" (2008) by Association of Legal Writing Directors; M. H.
Sam Jacobson (PDF)

Assignments: Begin a contract due January 29.

4 Feb. 7 Textbook: Chapters 6 and 10 (10.1 – 10.4 only)

Online Resources:

Common-Sense Negotiation (PDF): This article describes basic principles to bear in mind when
negotiating commercial agreements.
Active versus Passive Voice (PDF)

Contract Law: The Parol Evidence Rule (video)

Murray, Timothy (2019). The misunderstood but critically important merger clause. The Practical
Guidance Journal, LexisNexis.com
Assignments: Simplify and clarify contract language due February 5.
5 Feb. 14 Textbook: Chapters 7 (7.1 – 7.4, 7.7 – 7.8 only)

Online Resources:
Condition precedent: Everything you need to know. Upcounsel.
Assignments: Draft performance obligation language due February 12.
6 Feb. 21 Textbook: Chapters 10 (10.5-10.7, 10.10 only) and 7 (7.5 – 7.6 only)

Online Resources:
Indemnification Explained for Non-Lawyers: What Is It and Why Do I Care? (PDF)
Assignments: Take a position on a buy-sell agreement due February 19.
7 Feb. 28 Textbook: Chapters 12, 13 (13.1 – 13.2 only)

Online Resources:
Stepped Alternative Resolution Clauses Form (PDF): This document contains a set of dispute
resolution clauses in which the resolution of disputes begins with the least formal mechanism
(good faith negotiation) and progresses to increasingly more formal mechanisms if earlier
attempts to resolve the matter are unsuccessful.

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# Date Topic
Agreement to Mediate with Single Mediator Form (PDF): This form is a basic agreement between
two parties to designate a single mediator to assist them in negotiations to resolve certain
disputes to be described in the agreement.

My Version of the AAA Standard Arbitration Clause by Ken Adams: A well-known instructor of
contract drafting states his ideas for clarifying and improving on a standard arbitration clause
promoted by the American Arbitration Association.
Assignments: Draft dispute Resolution and Governing Law due February 26.
8 Mar. 7 Textbook: Chapters 12 (13.3-13.11 only) and 14

Online Resources:

Boilerplate Provisions (Word): This is an excerpt from a sample contract that contains what are
often considered to be “boilerplate” or “miscellaneous” provisions. Each provision is annotated
with comments that explain the background for the provision.

A Short History of Boilerplate (PDF), 5 Scribes J. Legal Writing 155

No Assignment
-- Mar. 14 No Class – Spring Break
9 Mar. 21 Textbook: Chapter 9

Online Resources:
Sample Letter of Intent (LOI) (Word): This sample document is provided to give you ideas for
drafting a term sheet in this week’s assignment.

Contractual Foreplay: Letters of Intent vs. Term Sheets (PDF): This article explains some of the
legal principles, psychology, and strategy involved in the negotiation, drafting, and execution of
letters of intent and term sheets.

Stephanie Evans, Know Your Limits: Understanding Your Term Sheet’s Exclusivity Provision,
WilmerHale Launch (April 13, 2017): This article explains the meaning and use of exclusive
dealing provisions in term sheets and letters of intent.

Philip Richter, Negotiation in Good Faith—SIGA v. PharmAthene, Harvard Law School Forum on
Corporate Governance and Financial Regulation (Jan. 27, 2016): This article explains how a
commitment to negotiate in good faith can have significant legal consequences that the parties
themselves may not have anticipated.
Assignments: Revise Letter of Intent due March 19.
10 Mar.28 Textbook: Chapter 8

Online Resources:
Week 9 Discussion Artifact (Word): This document may be used by the instructor as the basis for
discussion during the Week 9 live session.

Week 9 Lease Form (PDF): This form is provided to illustrate a lease of office space that Ellis-
Elan Jewelry Design, LLC might enter into with a commercial landlord.

Industrial Lease Form (PDF): This form is provided to illustrate a lease space in a mixed-use
industrial park.

Residential Lease Form (PDF): This form is provided to illustrate a lease for use in leasing a
residence, such as an apartment or a single-family home.
Assignments: Draft a Lease due March 26.
11 Apr. 4 Textbook: Chapter 10 (10.8 and 10.9 only)
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# Date Topic
Online Resources:
Confidentiality Agreements—What Every Business Lawyer Should Know (PDF), 52 Orange
County Lawyer 10 (October 2010)
Examples of Some Clauses Commonly Found in Employment Agreements (Word)

No Assignment
12 Apr. 11 Textbook: Chapter 11

Online Resources:
Distribution Contract Form (PDF): This is a somewhat more detailed, ten-page sample
distribution agreement.

The following two articles explain some of the most important clauses to include in distribution
agreements as well as traps to avoid:

o 10 Golden Tips for Distribution Agreements

o Avoiding the Top 10 Mistakes with Distributor Agreements

The article in Footnote 7 of Chapter 6 of the textbook: 73 U. Chi. L. Rev. 705 (2006). Putting the
"Best" in Best Efforts (PDF) by Rob Park

Assignments: Draft a Termination Provision due April 9.

13 Apr. 18 Online Resources:
Important Contract Terms for Service Agreements

Gotcha! Common Traps to Avoid in Vendor Agreements, New York State Bar Journal (Jan/Feb
2019) (PDF)

Mutual Confidential Nondisclosure Agreement Form (PDF)

Vendor Nondisclosure Agreement Form (PDF)

Protecting Confidential Information: Using NDAs with Your Vendors

Unilateral vs. Mutual NDAs
Assignments: Mark up NDA due April 16.
14 Apr. 25 Online Resources:
Rules of Engagement in the Conflict between Businesses and Consumers in Online Contracts
(PDF)

Online Contract Formation, Journal of Internet Law, (October 2018) (PDF)

Those Wordy Contracts We All So Quickly Accept

Why All the New Terms of Service?

Terms of Use Excerpts (Word): This document is a compendium of online terms of use employed
by major companies including Twitter, Google, Disney, and Pinterest. These terms are provided
to illustrate the kinds of contracts that are agreed to (knowingly or otherwise) by millions of users
on a daily basis.

No Assignment
-- Apr. 26 The final exam will be issued by the registrar’s office on April 26th and due May 9th at 12 pm
noon.

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 Statement on Academic Conduct and Support Systems

Academic Conduct:

Plagiarism – presenting someone else’s ideas as your own, either verbatim or recast in your own words – is a serious
academic offense with serious consequences. Please familiarize yourself with the discussion of plagiarism in SCampus in
Part B, Section 11, “Behavior Violating University Standards,” https://policy.usc.edu/files/2020/07/SCampus-Part-B-2.pdf.
Other forms of academic dishonesty are equally unacceptable.

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students, including short-term psychotherapy, group counseling, stress fitness workshops, and crisis intervention.
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See also this guide for Gould students to facilitate access to mental health resources on campus:
https://gould.usc.edu/assets/docs/directory/Mental-Health-Services-at-USC.pdf

National Suicide Prevention Lifeline – 1 (800) 273-8255 - Provides free and confidential emotional support to people in
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