Course Catalog

Writing in Law Practice: Drafting Negotiated Agreements (3)

For Prof. Crane’s section:

Third year law students have studied contract law and practiced effective writing. But will they enter professional practice with the particular skills necessary to draft successful contracts and avoid litigation? Will they understand why and how to negotiate a contract with opposing counsel? This course offers an apprenticeship toward acquiring those skills.

Both the purposes and preventive lawyering skills of contract drafting and negotiating differ from skills and aims in litigation. Drafting and negotiating contracts requires collaborative effort among diverse interests, rather than a battle between adversaries. One is not trying to win an argument by applying legal authorities to past events. The objective is to create an instrument that will operate well into the future; drafted to protect the client’s interests while achieving the purposes of all the parties involved. Even litigators need to know how to analyze disputed contracts, negotiate with opposing counsel and draft settlement agreements.

The focus of this course is primarily on practical skills rather than doctrinal knowledge -- skills that can only improve through years of practice. Assignments deal with types of contracts that every transactional attorney should be familiar with: settlement agreements, letters of intent, NDA’s, employment agreements, service contracts, amendments and leases. Readings are assigned to familiarize students with the fundamentals of contract writing and the general principles of successful negotiating. Class discussions on writing range from the analysis of word meanings, phrases, sentence structure and short provisions to the drafting of complete contracts for fairly complex transactions. Class discussions on negotiating will probe each student’s individual style and discuss the results of role-playing exercises. As with any skill, competence does not come through intellectual understanding alone. It also requires practice and hands-on experience.

Students first learn the conceptual framework of contracts and gradually become more proficient at translating legal and business concepts into representations, warranties, indemnities, covenants and conditions. Contract lawyers must pay close attention to detail and adequately understand the context in which an agreement is to function. To allocate risk, the lawyer must be able to anticipate the legal, personal, and business implications of a deal and translate them successfully into writing. The process involves not only a meeting of the minds between attorney and client but, in many cases, a meeting of the minds between attorney, client, opposing counsel and opposing counsel’s client.

In class, students will, at times, draft and negotiate contract terms and critique each other’s drafts. Students will also team up to draft a contract memorializing a business relationship and then, acting as opposing counsel for each side of the relationship, negotiate outstanding issues and revise the contract accordingly. Successful contracts, by their nature, are the product of understanding, negotiation and compromise. The approach of this course is intended to encourage habits of collegiality in future dealings with clients and other professionals. Writing done for this seminar will not satisfy the Advanced Writing Requirement.

For Prof. Farrar's section:

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 various types of transactional documents, along with their subcomponents.

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 [including a contract, a settlement agreement, an LLC Operating Agreement, and an online consumer agreement], and 7 sub-documents that are components of or precursors to the major documents [including a dispute resolution clause, a force majeure clause, and indemnification clause, and a privacy policy].

Current & Previous Instructors:
Christopher Crane; Olivia Farrar;

576K (CRN: 62196)       Credits: 3
    Summer, 2014 (Day).
    May 19-23; 9:30-3:00  
    Room 310.
576K (CRN: 96763)       Credits: 3
    Fall, 2014 (Day).
    August 11, 12, 13, 14, 15  9:30 am-3:00 pm.
    Room 310.
    0 openings. (Limit 12). See course waitlist.
576K (CRN: )       Credits: 3
    Spring, 2015 (Day).
    Room TBA.

Key to Codes in Course Descriptions
P: Prerequisite
C: Prerequisite or Concurrent Requirement
R: Recommended Prior or Concurrent Course

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500 W. Baltimore Street, Baltimore, MD 21201-1786 PHONE: (410) 706-7214 FAX: (410) 706-4045 / TDD: (410) 706-7714

Copyright © 2014, University of Maryland Francis King Carey School of Law. All Rights Reserved