University of Maryland School of Law

Writing in the Law [Drafting Negotiated Agreements] LAW 576K

Spring 2009

Professor: Olivia M. Farrar

202-486-4774
olivia.farrar@netzero.net
Class Hours: Section 1 Wednesdays 8:45 10:45am
Section 2 Wednesdays 2:10 4:00pm
Office Hours: by appointment [preferably Wednesdays]

Course Materials:
Thomas Haggard, Legal Drafting: Process, Techniques, and Exercises (2d ed.) (West, 2007).
Course-pack of selected readings [marked with a * in the syllabus].

Course Design:
This class approaches legal drafting as a holistic process that includes negotiating a deal, counseling a client,
knowing the relevant law, and mastering the principles of drafting so that an attorney can transform a deal into a
document. More specifically, this course focuses on two parallel skills (1) mastering the drafting principles that
are common to all documents, and (2) learning how to draft 5 major and 7 minor transactional documents.
Procedurally, each written assignment will be preceded by an in-class role-play where each student will be,
alternately, client and counsel. The role-plays constitute the client interview or negotiation that would occur in the
real world of document drafting; each student-attorney will then draft a document that memorializes the
information received from the student-client or the negotiation.
In terms of the first skill mastering the drafting principles common to all documents the course begins at the
macro-level with organizational concepts and the importance of concision and precision, then focuses increasingly
narrowly on the drafting skills related to syntax, grammar, key terminology, and layout.
In terms of the second skill learning how to draft specific documents and their subcomponents students will
draft 5 major documents that cover the range of transactional drafting, and 7 sub-documents that are components of
or precursors to the major documents. These documents are the following:
1. The first assignment is a Living Will and a Power of Attorney.
* Sub-document 1 is a revision of a badly drafted standard lease.
2. The second assignment is a negotiated copyright contract.
* Sub-document 2 is a confidentiality clause for the contract.
* Sub-document 3 includes a force majeure clause and an indemnification clause for the contract.
* Sub-document 4 is a dispute resolution clause for the contract.
3. The third assignment is settlement agreement [settling a dispute related to the contract].
4. The fourth assignment is an LLC Operating Agreement [for an LLC created out of the contract].
* Sub-document 5 is a bulleted memo advising the client about formatting an online consumer contract.
* Sub-document 6 is a bulleted memo advising the client about dispute resolution procedures and
language for an online consumer contract.
* Sub-document 7 is a bulleted memo advising the client about creating privacy procedures and a privacy
clause for an online consumer contract.
5. The fifth assignment includes the formatting instructions and the language for an online consumer contract.
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Readings:
Readings must be done prior to the class for which they are assigned. The weekly readings are approximately 40-
60 pages in length. Unlike many law school courses, however, the readings should be viewed as tools and
techniques rather than as material to be memorized.
Readings marked with a * are in the course-pack.
Statutory materials have been identified in the syllabus and must be read, but students are responsible for obtaining
their own copies.

Attendance
Attendance is mandatory; unexcused absences and late arrivals will lower a students final grade. Because the
process leading up to the creation of a document is so crucial to the final written product, and because each student
will be contributing to the process as client and as counsel, a students absence hinders the counseling/negotiation
process and hinders the ability of other students to create their own documents. Therefore, a student who expects to
be absent must notify Prof. Farrar so that alternative arrangements can be made.

Grading:
Deadlines Written assignments are due at the beginning of the class for which they are assigned.
Major documents The 5 major documents constitute 65% of the course grade. The relative weights of each
assignment as a proportion of the course grade are: #1 and #3 10% each; #2, #4, and #5 15% each.
Sub- documents The 7 sub-documents constitute 35% of the course grade, each worth 5%.
Mandatory rewrite One major document or 2 sub-documents (excluding the Settlement Agreement) must be
rewritten and will be re-graded. The revision must be more than merely cosmetic, and will be evaluated for its
mastery of the entire set of drafting skills taught over the course of the semester. The final grade for a rewritten
document will average the grades for the original and the rewritten versions.
Each document will be reviewed for format, style, clarity, compliance with applicable law, and feasibility.
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SYLLABUS
First Class Assignment
Read for Week 1
Introduction to Legal Drafting.
Haggard, pp. 112-36.
* Martineau, Legal, Legislative, and Rule Drafting in Plain English (West, 2005), pp. 27-31.
* Curtis, Its Your Law, reprinted in Dickerson, Materials on Legal Drafting (West, 1981), pp. 2-3.
* Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stan. L. Rev. 211 (1995).

WEEK 1 January 14
In-Class
The what and why and how of legal drafting.
Course overview.
DRAFTING EXERCISE.

Read for Week 2

Drafting Principles [organization large-scale structure + tabulation].
Haggard, pp. 185-191; 338-345.
* Dickerson, The Fundamentals of Legal Drafting (2d ed.) (Little, Brown & Co., 1986), pp. 79-99.
* Garner, Legal Writing in Plain English, (Univ. of Chicago Press, 2001), pp. 100-104.
* Martineau, Legal, Legislative, and Rule Drafting in Plain English (West, 2005), pp. 64-68.
Advance Directives and Powers of Attorney [process and law MD law]
MD Code Health-Gen. 5-601 et seq.
* Ward, Wills, Trusts and Estates for the DC Area Practitioner (Lexis Nexis, 2006), 4.02 4.04.
* ABA Commission on Law and Aging: Tools 1, 2, 4, 5 [How to Select your Healthcare Agent or Proxy;
Are Some Conditions Worse than Death?; Personal Priorities and Spiritual Values Important to
Your Medical Decisions; After Death Decisions to Think About Now].

WEEK 2 January 21 [Due informational checklist for Advance Directive]

In-Class
Organization the skeleton of a document.
Advance Directives + Powers of Attorney overview of the law + drafting norms.
ROLE PLAY interview client for Advance Directive and Power of Attorney

Read for Week 3

Drafting Principles [precision avoiding ambiguity + seeking concision]
Haggard, pp. 196-201; 217-222.
Haggard, pp. 240-266.
* Kimble, Lifting the Fog of Legalese: Essays on Plain Language (Carolina Acad. Press, 2006), pp. 59-66.
Drafting Principles [nouns + pronouns number + gender]
Haggard, pp. 273-76.
* Lauchman, Plain Language (The Lauchman Group, 2007), pp. 52-53.
Drafting Principles [defined terms a specialized version of nouns]
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 111-125.
* Office of the Federal Register [The National Archives], Drafting Legal Documents, Definitions.
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WEEK 3 January 28 Assignment #1 due Advance Directive + Power of Attorney

In-Class
The Drafters Golden Rule Avoid ambiguity, seek precision.
Nouns Drafting precisely for number, gender, and qualifiers.
Defined terms drafting your document-specific nouns.
DRAFTING EXERCISES Lease (1) reorganize + (2) rewrite 2 sections for concision and precision
Read for Week 4
Contracts [formatting norms]
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 1-18; 22-26; 87-93.
* Stark, Drafting Contracts (Aspen, 2007), pp.187-196.
Contracts [drafting a fact representations + warranties + recitals]
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 18-22.
* Stark, Drafting Contracts (Aspen, 2007), pp. 113-119.
Law [copyright law the basics; on Copyright Offices website: www.copyright.gov
Circular 1 [Copyright Basics];
Circular 34 [Names, Titles, or Short Phrases];
Circular 44 [Cartoons and Comic Strips].

WEEK 4 February 4 [Due Re-organized lease and 2 re-drafted provisions]

In-Class
Contracts
Drafting norms and formats for contracts.
Facts representations / warranties / recitals.
Law Overview of copyright law.
ROLE PLAY negotiate a copyright contract
Read for Week 5
Drafting Principles [verbs specifying duties + choices shall / will / must / may / can / deem]
Haggard, pp. 304-14.
* Aspey, Shall Must Go, 3 Scribes J.L. Writing 79 (1992).
* Garner, Words of Authority A Dictionary of Modern Legal Usage (2d ed.) (Oxford 1995).
* Hathaway, How Not to Write Strong Active Verbs, 2 Scribes J.L. Writing 146 (1991).
* Plainlanguage.gov, Shall and must www.plainlanguage.gov/howto/wordsuggestions/shallmust.cfm
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), p. 239 [deem].
Contracts [risk allocation confidentiality]
* Bowden, Drafting and Negotiating Effective Confidentiality Agreements, 41 No. 7 Prac. Law. 39 (1995).

WEEK 5 February 11 Assignment #2 due Contract

In-Class
Verbs the key to establishing duties and choices.
Keeping secrets: confidentiality clauses.
ROLE PLAY negotiate confidentiality clause for your contract
Read for Week 6
Drafting Principles [conditions [if/then] how to start duties/choices]
Haggard, pp. 222-224; 314-319.
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 65-71.
Drafting Principles [exceptions how to stop duties/choices]
* Fox, Working with Contracts (PLI 2002), pp. 95-99.
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 274-275; 282-284.
* Melinkoff, Nothwithstanding Dictionary of American Legal Usage (West, 1992).
* Garner, Except, Notwithstanding, Proviso A Dictionary of Modern Legal Usage (2d ed.) (Oxford 1995).
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Contracts [risk allocation force majeure]

* Stark, Negotiating and Drafting Contract Boilerplate (ALM 2003), pp. 319-59.
* Burnham, The Contract Drafting Book (Michie 1992), pp. 207-219.
Contracts [risk allocation indemnification]
* Stark, Negotiating and Drafting Contract Boilerplate (ALM 2003), pp. 247-56.

WEEK 6 February 18 [Due Confidentiality clause]

In-Class
Conditions how and when to use them.
Drafting for risk Force majeure and indemnification.
ROLE PLAY negotiate force majeure and indemnifications clauses for your contract

Read for Week 7

Drafting Principles [adjectives + adverbs qualifying duties and choices]
* Fox, Working with Contracts (PLI 2002), pp. 81-95.
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 133-147.
* Park, Putting the Best in Best Efforts, 73 U. Chi. L. Rev. 705 (2006).
Contracts [ending the contract planning for happy endings]
* Stark, Drafting Contracts (Aspen 2007), pp. 157-162.
Contracts [ending the contract dispute resolution (planning for unhappy endings)]
* Hricik, Infinite Combinations: Whether the Duty of Competency Requires Lawyers to Include Choice of
Law Clauses in Contracts they Draft for their Clients, 12 Willamette J. Intl L. & Disp. Resol. 241 (2004).
* Townsend, Drafting Arbitration Clauses: Avoiding the 7 Deadly Sins, 58:1 Dispute Resol. J. (2003).
* American Arbitration Association [AAA], Drafting Dispute Resolution Clauses [www.adr.org]
* Better Business Bureau [BBB], Dispute Resolution: The Commonsense Alternative [www.bbb.org]
* International Chamber of Commerce [ICC], ADR Rules (2001) [www.iccwbo.org].
* JAMS, JAMS Guide to Dispute Resolution Clauses for Commercial Contracts (2006) [www.jamsadr.com].
* London Court of International Arbitration [LCIA], Recommended Clauses [ www.lcia.org ]

WEEK 7 February 25 [Due Force majeure clause and Indemnification clause for contract]
In-Class
Qualifiers Softening the edges on duties and choices.
Ending the deal happy endings and unhappy endings.
ROLE PLAY negotiate DR clause for your contract

Read for Week 8

Drafting Principles [connectors and + or + and/or]
Haggard, pp. 201-206.
Drafting Principles [punctuation]
Haggard, pp. 228-31.
* Martineau, Legal, Legislative, and Rule Drafting in Plain English (West, 2005), pp. 68-70.
Settlement agreements [settlement agreements a peculiar type of contract]
* Rosen, Settlement Agreements in Commercial Disputes (Aspen 2005), Chap. 8, Chap. 9.
* Moore, The Mediation Process (Jossey-Bass 2003), pp. 348-67.
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WEEK 8 March 4 [Due DR clause for contract]

In-Class
And + or precision.
Punctuation issues.
Drafting how settlement agreements are and arent like contracts.
ROLE PLAY negotiate settlement agreement.

Read for Week 9

Drafting Principles [numbers values, dates, ages, formulas]
* Adams, A Manual of Style for Contract Drafting (2d. ed.) (ABA, 2008), pp. 330-333.
* Stark, Drafting Contracts (Aspen 2007), pp. 242-247, 263-269.
Drafting Principles [numbers accounting issues]
* Stark, Drafting Contracts (Aspen 2007), pp. 269-273.
* Lloyd, Financial Language in Legal Documents, 870 PLI/Corp 261 (1994).
* FASB, Some Facts about Fair Value, Understanding the Issues (May 2008).
* FASB/FAF, FASB/FAF Response to SEC Releases, 11/07/07 (Nov. 2007).
* FASB/IASB Memorandum of Understanding, (Sept. 2008).
* IASB, Recommendations of the Financial Stability Forum (Nov. 2008).
LLC Operating Agreements [law + process DC law]
D.C. Code 29-1001 et seq.
Forms [DC Government www.dc.gov] forms for LLCs, trade names, basic business license.
* Coppedge, LLC Operating Agreements: Drafting Tips and Traps for the Unwary, 19 Prob. & Prop. 44 (2005).

WEEK 9 March 11 Assignment #3 due Settlement Agreement

In-Class
Numerical precision.
Accounting issues the current, raging US and international debate.
The law and drafting of LLC documents.
ROLE PLAY negotiate LLC Operating Agreement.

Read for Week 10

Drafting Principles [visual clarity layout + typography]
* SEC, A Plain English Handbook: How to Create Clear SEC Disclosure Documents, pp. 37-54.
* Felsenfeld, Writing Contracts in Plain English (West 1981), pp. 176-200.
Consumer Contracts [issues related to drafting electronic consumer contracts]
* Gautrais, The Colour of E-Consent, 1 U. Ottawa L. & Tech. J. 189 (2003-2004).
* Hillman & Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U.L. Rev. 429 (2002).
* White & Mansfield, Literacy and Contract, 13 Stan. L. Poly Rev. 233 (2002).
Consumer Contracts [RESEARCH]
Research law on contracts of adhesion.
Research law regarding click-wrap and browse-wrap agreements.
Create a bulleted memo advising client:
1. whether to use browse-wrap or click-wrap for electronic consumer contract;
2. how to format the contract;
3. alerting client to potentially problematic provisions.

MARCH 14 MARCH 22 SPRING RECESS

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WEEK 10 March 25 Assignment #4 due LLC Operating Agreement

In-Class
Layout and typography.
Contracts of adhesion whats the laws view of them, and how to draft them to withstand attack.
ROLE PLAY strategize the format for your online consumer contract.

Read for Week 11

Consumer Contracts [dispute resolution the dilemmas and current turmoil in consumer contracts]
* Carrington, Unconscionable Lawyers, 19 Ga. St. U.L. Rev. 361 (2002).
* Ward, They Dun Them Wrong, ABA Journal, July 2008.
* Whitfield, Bills Target Mandatory Arbitration, Business Insurance, Nov. 3, 2008.
* Rule, Making Peace on eBay: Resolving Disputes in the Worlds Largest Marketplace, ACResolution,
Fall 2008, pp. 8-11.
* Cole & Frank, The Current State of Consumer Arbitration, Dispute Resol. Mag., Fall 2008, pp. 30-34.
* US Senate, S. 1782 Arbitration Fairness Act of 2007.
* AAA, Consumer Due Process Protocol, 1998.
* JAMS, Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses, 2007.
Consumer Contracts [RESEARCH]
Research law regarding enforceability of choice of law clauses in consumer contracts.
Create a bulleted memo advising client:
1. what is the trend in the law regarding enforcement of choice of law clauses in consumer contracts?
2. what elements make DR/choice of law enforceable or unenforceable in a consumer contract?
3. what best practices for DR/choice of law can you recommend regarding online consumer contract?

WEEK 11 April 1 [Due Bulleted memo re: Legal analysis whether clients consumer
contract should be a click-wrap or a browse-wrap, and how to format it]
In-Class
Dispute resolution in consumer contracts the current debate and the potential future.
ROLE PLAY strategize the DR issues for your on-line consumer contract.

Read for Week 12

Consumer Contracts [protecting secrets privacy issues in documents directed at the public]
* Bump, Considerations in Drafting Privacy Policies, PLI No. 14617 (2008).
* Kennedy & Meade, Privacy Policies and Fair Information Practices: A Practical Guide to Preparing
Website Privacy Policies, PLI No. G0-00VJ (2002).
* US FTC, Protecting Personal Information: A Guide for Business.
* US FTC, The Red Flag Rules: Are you Complying with the New Requirements for Fighting Identity Theft,
FTC Articles for Business, Sept. 2008.
* US Department of Commerce, Safe Harbor documents and provisions.
* European Commission, December 2001, on standard contractual clauses for the transfer of personal data
to processors established in third countries.
* European Commission, December 2004, an alternative set of standard contractual clauses for the transfer
of personal data to third countries.
Consumer Contracts [RESEARCH]
Research versions of online privacy policies.
Research options for online security systems.
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WEEK 12 April 8 [Due Bulleted Memo RE: Legal analysis advising as toDR/ choice of law
in clients consumer contract]
In-Class
Privacy policies technology meets the law [both US and foreign].
ROLE PLAY Brainstorm components and language for the privacy policy for your online consumer contract.
PEER REVIEW bring in copy of document you intend to revise to be peer-reviewed.

Read for Week 13

Drafting principles [overview strategic drafting and revision]
Haggard, pp. 348-68.
* Feldman, Drafting Effective Contracts (Aspen 2005), pp. 1.19 1.22.
* Korobkin, Negotiation: Theory and Strategy (Aspen, 2002), pp. 81-87, 102-108.

WEEK 13 April 15 [Due Privacy Policy for online consumer contract]

In-Class
Strategic drafting and status quo bias.
PEER REVIEW bring in draft of Consumer contract to be peer-reviewed.

April 22 Assignment #5 due Consumer Contract

Revised document due