I’m seeking feedback on a course I’m planning to teach in fall 2019 from lawyers and other law-trained folks, from business people and consumer advocates in the information-technology space, and from experienced law teachers. I’m construing “information technology” broadly to include things like B2B service agreements, social media terms of use, etc.
I describe the course below, but I’ll put the questions right up front:
- For law-trained folks: What three things do you wish attorneys less experienced with contract drafting knew about the practical side of drafting IT-related contracts?
- For technology business people and consumer advocates: What three things do you wish attorneys inexperienced in the IT business knew about it before drafting contracts for it?
- For teachers of contract drafting, especially online courses: What do you wish you had known before you tried to teach an IT-contract drafting course or an online contract-drafting course?
The course is tentatively titled “Drafting IT Contracts.” I will teach this semester-long (12 weeks) course online. I have experience teaching technical-communication genres in online courses, and I have 15 years’ experience drafting contracts of this kind. But I want to crowd-source wisdom from my social network to refine my ideas. In a separate blog post in January, I’ll summarize comments I receive here, via email, and on the #teachingTechKs hashtag; thus, you if you check back, you’ll receive something in return for your efforts.
Students in this course will fall into two groups:
- Second- and third-year J.D. students, who have at least had a doctrinal contracts class but who may not have had any contract-drafting experience in a course or outside law school.
- Students in our Master of Jurisprudence (MJur) program, who may have practical business experience working with, or even drafting, contracts but who may not have had any training in contract law.
The course will emphasize basic contract-drafting principles, but it will focus attention on issues that are especially important in IT.
In addition to a variety of smaller exercises, students will be placed into small groups (each with a mix of JD and MJur students) to take part in three drafting simulations. Each group will have a chance to take part in a simulation where its “client” has little negotiating power, great negotiating power, and power similar to the counter-party. Each will also have a chance to try drafting from scratch, using a form, and in response to a counterparty’s proposed contract.
The students will work on developing issues, negotiating, and drafting as a group. I will provide detailed feedback and a tentative grade on each of these assignments. At the semester’s end, each student will individually prepare a revision of her group’s projects in a portfolio, along with a reflective memo where she explains the reasons for key changes and how she thinks the experience contributed to her knowledge and skills (if at all).
I am still selecting texts for the course, but I will definitely require Ken Adams’ A Manual of Style for Contract Drafting (4th ed.).
Please share your answers to my questions and share or reshare this blog post on the #teachingTechKs hashtag. And please have a joyous holiday season (whether you celebrate any of the holidays or no)!
-Brian
Image: “Contract Key” Copyright 2017 Mike Lawrence. www.CreditDebitPro.com Used with permission. Creative Commons license CC-BY 2.0 See http://flic.kr/p/21BaKcq
An information security colleague of mine wrote this: “Information security is such an important part of contracting for a technical solution and, when it comes to getting the programming or software-as-a-service security a client wants, asking for “reasonable care” on its own doesn’t cut it. That just leads to arguments when things go wrong, as they often do. Someone in the contracting process needs to understand and articulate auditable security requirements specific to the application and/or hosting.”
Some thoughts from Twitter:
Ken Adams (@KinciseD) writes regarding inexperienced contract drafters (my students): “They don’t know how to say clearly and concisely whatever needs to be said. The saving grace is that they haven’t accumulated a trunk full of bad habits. Give them MSCD. And tell them that most of what is out there is lacking in terms of what it says and how it says it.”
Prof. Christopher Trudeau (@ProfTrudeau) writes: “[H]ave the students search the net to find a good example and bad example of whatever you want to focus on: data use agr, IT service agreements, terms of use, etc. Then have them write reasons why it’s good or bad. Use the collective lists to make your points. They will catch a lot of surface level things that will help you solidify those. For the things they miss (the details & nuance), you can focus later lessons on teaching them to fill those gaps.”
Other colleagues of mine from my tech-industry days offered these comments:
“If you say tech specs are on Exhibit 1 don’t have that be a blank page. Are you really asking the client to assume all the liability if your programmers/company screws up? If the service includes the ability or need to access the client’s data – is there language that says limitations or prohibitions on who can access, how it can be used, how handle breech notification and what happens at the end of the contract?”
“Focus on real-world exit provisions. The reality is that almost all technology is too complex and fast-changing to capture well in a contract and general language doesn’t work too well either. To me, the easiest way to deal with that is to try to preserve the parties’ negotiating power as much as possible so they can work well together when problems arise. This doesn’t only mean lawsuit threats but thinking through what it means for either party to be able to realistically get out of the contract as easily as possible, which, in enterprise contracts can be challenging. Most negotiations don’t focus on this enough in my view.”
“I… think SLA language is very important. And I agree with [previous comments].”
“Eliminating redundancy. Often one clause already provides a protection and others elsewhere are redundant and unnecessary, just costing both parties more when reviewing and finalizing terms.”