Here’s what past registrants have said about this course:
“I have been drafting contracts for over 15 years without the benefit of a course like yours. A course like yours would have saved me a lot of pain along the way.”
“ . . . Very practical and interesting. It should be a required course for all novice commercial lawyers (and for many experienced lawyers, too).”
“An excellent, very practical program. As with most ALI-ABA programs, it focuses on the real issues and problems that practicing lawyers need to know. One of the best programs I’ve been to in years!”
“Excellent course. Mr. Garfinkel is extremely knowledgeable. He made a dry subject interesting.”
Why You Should Attend
Document drafting is as important to the successful negotiation of a deal as the negotiation sessions themselves. Well-drafted legal documents not only articulate the terms of the transaction, but also protect and advance the client’s interests, reduce the likelihood of disputes, and establish the framework for successful business relationships. Nevertheless, document drafting is not intuitive. Even the best lawyers must use drafting techniques that clearly articulate their transactions, and even the best writers must integrate legal and business concepts to create effective contracts.This program integrates the legal principles, skills, and experience related to negotiating and drafting a range of contracts. It explores the underlying principles of contract law that apply to specific contract provisions and considers alternative ways to resolve issues in the document negotiation process. The focus is on producing readily comprehended legal documents that can serve as roadmaps for business relationships and can reduce the possibility of related litigation.
Throughout the day, the instructor will respond to participant comments and questions. The last half-hour of the program will be devoted to a discussion of ethics and professional responsibility issues in document drafting.
Schedule
9:00 a.m. Preliminary Considerations
Differences between the objectives of an attorney drafting a contract for clarity and those of an attorney drafting a document for advocacy or persuasiveness; relationship between lawyer’s drafting and negotiating functions; . preparing for drafting; understanding the objectives and perspectives of your client and of the other parties; understanding the deal and the law; issue identification: deal issues v. legal issues; special issues; threshold concerns, transaction phases, document structure development,;; letters of intent and term sheets; no shop clauses, initial draft advantages and disadvantages; use of checklists and forms; source forms and use of documents; function of the initial draft; dealing with one-sided initial drafts; reacting to comments; amendments; format and organization of the document; definitions recitals; incorporation of existing law; cross references; saying what you mean - meaning what you say; recitals; definitions; significance of negotiation history counterparts; schedules, attachments, and exhibits; topographic devices; due diligence provisions; conspicuousness; reviewing and editing; Latin and other foreign words; retaining interim drafts; describing time periods, good drafting practices .
11:00 a.m. Break
11:15 Ambiguities.
What is an ambiguity; patent v. latent ambiguities; semantic, syntactical, and contextual ambiguities; how the law deals with ambiguities; grammatical construction; misplaced phrases; adverbs and adjectives; linkage; use of pronouns; prepositions; conjunctive-disjunctive confusions; using “and/or”; "and", "every" v. "any", willfull, using “that” and “which”; homonyms; homophones and dangling and squinting modifiers; punctuation, singular v. plural; doctrine of last antecedent; the serial comma; active v. passive voice; intentional vagueness; adjective chains; ambiguous plurals.
11:45 a.m. Let’s Frustrate the Litigators.
Construction v. interpretation, levels of obligation, alternatives to “best efforts” provisions; subjective vs. objective performance criteria; good faith and fair dealing; integration provisions; approaches to the parol evidence rule; oral modifications ,the “Four Corners Rule”; “modern” or “Restatement” approach; dealing with Ejusdem Generis and Expressio Unius Est Exclusio Alterius; rules of construction; general v. specific; liberal v. strict construction; treatment of exceptions, exclusions, and limitations; the “obligation” to negotiate in good faith; contracts of adhesion.
12:30 p.m. Achieving Clarity and Avoiding Litigation.
Words and expressions to avoid; avoiding run-on sentences; modals, “shall,” “will,” and “must”; using tabulation; using “any”; structuring sentences for clarity; deceptive punctuation; conditions v. covenants; “legalese”; using lists; Reddendo Singula Singulis; computational provisions; doctrine of substantial performance, tabulations.
1:00 p.m. Lunch
(Participants are requested to advise the instructo rat this time of specif topics described below that they desire to be covered in depth during the afternoon secession)
2:00 Achieving Clarity and Avoiding Litigation (Con't)
2:30p.m. Analysis of Boilerplate and Other “Generic” Provisions.
( NOTE: Time constraints may not permit all of these topics to be covered in class) Default provisions, incurable defaults; damages, liability limitations, and remedies; notices, time of the essenceseverability;; force majeure , termination and renewal; choice of law and forum selection provisions; conditions v. covenants v. provisos; indemnification; forfeitures; consent and approval; computational, confidentiality, and alternative dispute resolution provisionsprovisions; options; first refusal and first offer; representations and warranties, most favored nation; anti-waver; notices; market shift protection devices; liability limitations; exculpations; jury trial waivers; assignment, assumption, and novation; succession.
3:45 p.m. Break
4:00 p.m. Ethics and Professional Responsibility in Document Drafting
Confidentiality issues ,use of e-mail ,misdirected fax, meta-data, knowing inclusion of unenforceable contract terms; response to drafting errors and failure of the adverse attorney to properly include negotiated provisions; the “Golden Rule”; retaining documents; the ethics of negotiating; dealing with the law of other jurisdictions. (.5 ethics)
4:30 p.m. Adjournment
