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About the Book

Drafting Contracts: How and Why Lawyers Do What They Do

Tina L. Stark
Emory University

2007. 476 pages. Paperback. ISBN 0-7355-6339-X / 978-0-7355-6339-1. With Teacher's Manual.

About the Book

Drafting Contracts brings a new approach to the teaching of contract drafting. It emphasizes the nexus between the business deal and the contract, both in the material taught and in the exercises students work on. In addition, it teaches students to think critically about the law and the transaction they are memorializing.

To draft a contract well, a drafter must know the rules of good writing—and more. Among other things, a drafter must

  • understand the business deal;
  • know how to use the contract concepts to reflect the parties’ deal accurately; and
  • be able to draft and recognize nuances in language that change the deal.

In addition, a good drafter knows how to add value to a deal by discerning and resolving business issues.

Drafting Contracts reflects a real world approach to contract drafting, bringing together years of real world contract drafting experience and law school teaching. Although new to the market, the materials in Drafting Contracts have been used in law school classrooms for more than 13 years, including use of the manuscript at more than ten schools.

Drafting Contracts teaches students through narration and drafting exercises. The exercises are numerous, permitting a professor to choose the ones most appropriate for his or her class. As designed, the exercises in later chapters incorporate material from earlier chapters, so that students practice what they have already learned while integrating new skills. Professors need not, however, teach the materials in Drafting Contracts in the order set out. The book is sufficiently flexible that professors can reorder the chapters to suit any curriculum.

This book’s organization reflects its pedagogy. Part 1 teaches the material that is the course’s foundation. Its chapters introduce students to the building blocks of contracts: representations and warranties, covenants, rights, conditions, discretionary authority, and declarations. These chapters do more, however, than define the terms. They show how and why a drafter chooses a specific contract concept by teaching the analytic skill of translating the business deal into contract concepts.

In Part 2, Drafting Contracts sets out the framework of an agreement and works through it from the preamble to the signature lines, in each instance discussing the business, legal, and drafting issues that occur in each part of a contract. After these chapters, in Part 3, Drafting Contracts turns to the rules for good drafting and to techniques to enhance clarity and to avoid ambiguity. Although the chapters in this Part concentrate on more traditional drafting issues, they nonetheless remain sensitive to how the business deal affects drafting in subtle ways.

In Part 4, students learn how to look at a deal from the client’s business perspective and how to add value to a transaction by identifying business issues using the five-prong framework of money, risk, control, standards, and endgame.

In Part 5, students learn the drafting process, from organizing the initial contract to amending the signed agreement. Students also learn how to analyze and comment on a contract that another lawyer has drafted.

Drafting Contracts directly addresses ethical issues unique to contract drafting, both through textual material and exercises in Part 6. The book’s final part, Part 7, provides supplementary exercises.

Drafting Contracts is designed for use in an upper-level drafting course but can be integrated into a variety of other courses, including a first-year writing or contracts course, a mergers and acquisitions course, a transactional simulation course, a transactional clinic, and an upper-level writing survey course. The Teachers Manual suggests appropriate chapters and exercises for each of these uses.

The Teachers Manual is detailed. For exercises that require the redrafting of a provision, the TM includes the original provision, a mark-up showing the changes, the final version, and Notes explaining the answer. For exercises that require free drafting, the TM includes an example of a good answer along with Notes explaining the answer. In addition, the TM provides answers to commonly asked questions and tips on how to present material.

The Drafting Contracts website will also be a resource available to professors and students. First, professors will have access to an electronic version of the TM, so anything in it can be copied and incorporated into class notes. Second, professors will be able to download PowerPoint slides and additional exercises. Third, the website will include Word and WordPerfect versions of each provision in a large, readable font. These provisions can be projected on a screen in the same way that a PowerPoint slide can be projected. Once projected, the professor and students can work through the revision together. The website will also have additional exercises to give professors even more choices for assignments. Finally, to minimize the word processing that students do, the website will include electronic versions of the longer exercises.

Drafting Contracts teaches contract drafting in a new way. It teaches students how to think like deal lawyers and how to reflect that thinking in the contracts they draft.

Tina L. Stark
May 2007

Preface / Sample Chapters

  • Chapter 3
    Translating the Business Deal into Contract Concepts: Part 1 (Representation and Warranties & Covenants and Rights)