Licensing Intellectual Property
Course No.:  9200-705 (&805)-801
Course IDs:  16444, 16445
M, W  4:45 - 6:15 p.m.
Room W-206
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2005, 2006, 2008, 2009   Jay Dratler, Jr.   For permission, see CMI.

Grading Criteria and Writing Hints

Grading Criteria

Writing Hints

Grading Criteria

Each paper will be assigned one of three grades, as follows:
      1.  The paper was "on message," i.e., addressed the assignment and/or the questions asked, had no significant problems of substance, organization, tone or writing, and was generally effective in conveying a coherent and reasonable point of view.
      2.  Although generally "on message," the paper failed to address a significant aspect of the assignment and/or the questions asked, and/or had significant problems of substance, organization, tone or writing.
      3.  The paper was significantly "off message," and/or had major problems in substance, organization, tone, or writing.

Writing Hints

As you can see from the grading criteria, your papers will be judged based principally on five criteria: (1) being "on message," (2) substance, (3) organization, (4) tone, and (5) writing.  Of these, (1), (3) and (4) have produced the most common problems in the past and should be the initial focus of your writing effort in this course.

1.  Being and staying "on message."  Believe it or not, being and staying "on message"—i.e., understanding and following the assignment, no more, no less— has been the most common problem in papers in this course.  It is also a common problem for lawyers just entering the profession.

For each paper, be sure you understand exactly what the assignment is.  Read the operative language of the problem (that part that tells you what to do) several times.  Then think hard about the problem from the point of view of the audience you are addressing.  Try to put yourself in your audience's shoes.

Usually your audience will be your client, Contair Corp.  Client communications are very different from typical law-school writing projects, such as office memos, course papers (including GWRs), and law-school exams.  Most such law-school projects involve, in essence, communications to other lawyers.  They are full of abstraction, detail and often citation to legal authority.  Clients, however, care little about these things. They don't want abstract discussions of the law.  They want practical and concrete advice on courses of action and their legal (and business!) consequences, opportunities and risks.  And they prefer advice not in the abstract but tailored to their specific circumstances.

In order to give practical advice, you must of course first understand and appreciate the legal issues involved.  You must do any necessary legal analysis and come to appropriate and correct conclusions.  Not only should your conclusions be "correct," but you should consciously consider and understand the level of certainty or uncertainty of each conclusion, i.e., the confidence (or lack thereof) that you have in that conclusion in light of the uncertainty of the governing law and your own incomplete knowledge of the facts and any relevant business considerations.  You should "work through" all these points and all these sources of uncertainty in your head, in an outline, or in a preliminary draft before ever putting pen to paper to address your client.

In order to get and stay "on message," put yourself in the shoes of your client (or other audience) at every stage of your writing.  What are the key practical questions to which the client wants answers?  What parts of those questions are legal?  What parts of them involve factual questions?  What parts involve business considerations or business judgment?  Try to separate legal, factual and business questions in your mind as you consider the problem, although you may have to discuss them seamlessly together in your writing.  Remember, however, that ultimate business judgment always belongs to the client, and write accordingly.

2.  Tone.  Probably the second most difficult task in writing for this course is maintaining the proper tone.  "Tone" in this sense includes all of the following: (1) the distinction between legal, factual, economic, and business analysis; (2) the appropriate level of abstraction versus concreteness; (3) the appropriate level of detail, generality and specificity; (4) recognizing the lawyer's role as advisor, rather than ultimate decision maker; and (5) "human" factors such as balance, tact, humility, neutrality, circumspection, prudence, and reasonableness.

Most if not all of these factors depend above all upon who your audience is and your relationship with your audience.  (For example, you will address a client in a formal business relationship differently than one who is a close personal friend.  In this course, you should treat Contair and its executives as the former.)  Much will depend, for example, upon whether you are writing to your client, addressing a prospective business partner of your client's in a tough negotiation, or addressing an opponent in a litigation or pre-litigation context.

As a concrete example of the importance of "tone," consider the supplemental problem of Contair's ownership of copyright in the final systems program prepared by a freelance consultant.  The legal question is whether that program is a "work made for hire" under one or both of the two clauses of the definition of that term in 17 U.S.C. § 101.  Since clause (2) does not apply in this case, that question in turn depends upon application of clause (1), i.e., upon whether the consultant is acting as an "employee" or an "independent contractor" as those terms are defined and explained in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).  In an office memo, you could probably write two full pages describing the two clauses of the definition of WMFH and the rule of Reid, emphasizing how to apply Reid's multifactor, federal-common-law-of agency test for "employment" to the facts before you.

The client, however, cares nothing about these legal abstractions.  The client wants to know whether or not it owns the copyright and what the practical consequences of ownership or a lack of it will be.  The client may also want to know enough about the legal rules to understand why its owns or doesn't own the copyright.  If so, you have an obligation as counselor to express the rules simply and succinctly, but in such a way that your client will not be likely to misunderstand and misapply them in the future.  Can you do all that in two (or at most three) simple sentences, rather than two pages?  And can you focus those simple sentences on the facts at hand?  Try doing so and see how easy or hard it is.  We will discuss this problem briefly in class.

3.  Organization.  After staying "on message" and getting the proper tone, probably the next most difficult task you will have is organization.  Precise, logical and effective organization is a vital tool of legal writing.  Strict organization is also what distinguishes legal writing from most other forms of writing, including reporting and creative writing.

Good legal writing makes every word count and every concept clear in context.  Good organization is an important aid in achieving these ends.

In writing to clients, there are three levels of "macro" organization.  The first and most important is systematically addressing the questions asked, i.e., staying "on message."  Usually memos to clients begin with a very brief and general statement of the question(s) to be answered, often in the form "You have asked . . ."

When there are several interrelated questions (as there often are) considerable thought must be given to how to present them in the most logical, efficient, and effective order.  Logic, however, is not the only criterion.  Sometimes you may wish to make points out of strictly logical order in order, for example, to address a point that you know is troubling your client or to emphasize a warning of particular risks or another aspect of your advice.  Organization and emphasis are often equivalent in legal writing, for clients usually remember best what comes first and last in a memo.

The second most important level of organization involves distinguishing matters of law, fact, and business judgment.  Making these distinctions is vital to understanding and maintaining your role as legal advisor.  You are an authority on the law ("you own the copyright in a work made for hire for you"), a mere reporter or observer of factual circumstances ("the discount rate depends upon the rate of inflation, and inflation is likely to rise"), and only a weak and indirect arbiter of business judgment ("I advise against taking this risk because it is large and uncertain and there are two ways to reach the same business goal without that risk: . . .").

Often brevity and clarity will require discussing law, fact and business matters in a single sentence or paragraph.  Then tone and language alone have to bear the burden of distinguishing them.  When substantial issues of law, fact or business arise, however, they should ordinarily be separated in your writing, in order to emphasize the differences among them and your differing role as lawyer with respect to each.  Understanding when to use tone and explicit language to make these distinctions and when to use organization is a matter of judgment, skill and experience.

The third aspect of "macro" organization can be called "logical flow."  A good memo proceeds step by step from the question(s) addressed, through relevant facts and/or factual assumptions, through applying legal principles and stating consequences, to practical conclusions and advice.  While avoiding excessive detail and abstraction, a good memo omits no step in reasoning or logic, even if it has to express some steps in general terms.  Ideally, a memo should answer the client's natural questions (such as "what's the rule?", "what are its practical consequences?", and "what if the facts are a bit different, like this . . .?") in the order in which they are likely to occur to someone of the same legal sophistication as the client.  To organize in this manner you have to learn to think like your client, i.e., to put yourself mentally in your audience's shoes.

Finally, you should not neglect so-called "micro" or "paragraph level" organization.  Each paragraph should have a single theme or idea, expressed in a coherent topic sentence, which ordinarily should be short and simple.  Everything else in the paragraph (except possibly the transition to the next paragraph) should support, explain or elaborate the single theme expressed in the topic sentence.

Before finalizing any writing, review each paragraph and identify its key theme or themes.  If there are more then one, split the paragraph or otherwise reorganize your writing.  Paying religious attention to proper parargraphing may produce a substantial, if not astounding, improvement in clarity and reader comprehension, especially if you have not paid much attention to paragraphing in the past.

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