Who Is Tina L. Stark?
Tina Stark is a Clinical Professor in the Law School at Emory University. Tina L. Stark is the co-creator of and the lead instructor for The Transactional Skills Program at Emory, and has taught courses in Mergers and Acquisitions, Corporate Finance/Private Equity, and Transactional Drafting. She has also served as the faculty advisor to the Emory Corporate Governance and Transactions Competition, and has been a speaker and panelist on transactional law curriculum development at several national legal education conferences.
She received her LL.M. in Taxation from the New York University School of Law in 1980, her J.D. from Columbia University School of Law in 1979, and her B.A., magna cum laude, from Smith College in 1976. During her time at Columbia Law School, she was associated with the Columbia Law Review (Note Editor), and the Parker School of Foreign and Comparative Law.
She was admitted to practice in New York in 1979 and is a member of the Bar of State of New York Appellate Division, First Department. She is also a member of the Bar of the District of Columbia, and the Bar of the State of Georgia.
Before joining Emory in 2005, Prof. Stark was the Director of Legal and Business Training at Sullivan & Cromwell LLP from 2000 to 2002. From 1987 through 1999, she was a partner in the Corporate department of the New York office of Dewey Ballantine LLP. In addition, from 2000 to 2005 she was an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law, Yeshiva University , where she taught Mergers and Acquisitions and Mastering Negotiable Instruments, The Uniform Commercial Code.
Prof. Stark also taught at the Harvard Law School from 1981 through 1986 and was an Associate Professor of Law at Tulane Law School from 1979 to 1981. She was an associate at Cleary Gottlieb Steen & Hamilton LLP from 1979 to 1980 in the International practice group. Her professional affiliations include service on the American Bar Association’s and the American Bar Foundation’s Task Forces on Globalizing the Curriculum. Other professional activities include the ABA’s Committee on Law School Accreditation and Fitness Standards, drafting the proviso to the new ABA Standard 302, and the National Conference of Commissioners on Uniform State Laws, where she drafted the Prefatory Comment to the Uniform Electronic Wills Act.
She is the author of Drafting Contracts in Legal English: Drafting Clause by Clause which was published in 2015 by the American Bar Association, with Language Reference Service providing the language analysis; and A Lawyer Writes: A Guide to Writing in Legal English. Prof. Stark’s book, Drafting Contracts: How and Why Lawyers Do What They Do, first published in 2007 by Aspen Publishing (Wolters Kluwer Law & Business), was nominated for 2008 Book of the Year by The Brief, the journal of the National Association of Bar Executives. Prof. Stark has published The M&A Process: A Practical Guide for Professionals (American Bar Association, 2013) and The Lawyer’s Essential Guide to Writing Well.
Overview of Contract Drafting
As Tina L. Stark points out in her seminal work on contract drafting, "the keys to successful budgeting for good contracts are found in the contract design process . . . ." The contract design process is made up of a number of elements: purpose, definition, communication, necessary details, scope, and limits. Purpose defines the "who, what, when, where, why, and how much" of the contract; Definition sets parameters, establishes roles, and identifies parties; Communication focuses on how parties will communicate their positions with one another; Necessary Details fills in the blanks set by the scope of the contract; and Scope and Limits make sure that what is left out is as important as what is included. With these underlying principles of contract design, Stark sets the stage for why good contract drafting is so important and how the contract drafting process is analyzed. By understanding the contracting process and how fundamental elements fit together to make agreements clear, lawyers armed with a basic knowledge of these principles will be better suited to assist in the contracting process.
Important Works
Contract drafters and aspiring contract drafters can draw upon a number of useful and insightful publications and works authored or co-authored by Tina L. Stark that focus on the management of negotiation and drafting risks.
Her most frequently referenced work, Drafting Contracts: How and Why Attorneys Do What They Do (2d ed 2007), is a cornerstone for those looking for an understanding of how to improve their drafting skills. It offers practical insights into the reasons why specific language is used and gives tips on how to use existing language in other agreements. The Power Shift Blog, Ms. Stark’s personal blog, was launched in 2007 and has quickly grown into a premier online destination for guests interested in contract drafting, negotiation, and analysis. Whether you are seeking tips and tricks for managing your next client signing or simply want to hear what Tina is reading, the site is regularly updated and organized for ease of use. It also contains historical archives dating back to November 2005, where readers can view recaps of past postings. Drafting and Analyzing Contracts, formally known as the Yellow Book, 3d ed. (2016), by Tina L. Stark and George J. Siedel, is another of Ms. Stark’s best-known publications. Its application to both JD and LLM courses has catapulted it to the forefront of contract drafting resources. The Negotiator’s Desk Reference (2006), co-authored by Ms. Stark, is a compilation of sources that often influences the outcome of successful business negotiations. It has been endorsed by the National Institute for Trial Advocacy. Negotiating and Drafting Commercial Contracts (2007), by Ms. Stark and co-authored with Craig R. Calkins and Mark E. Roszkowski, was published by the Practising Law Institute and covers numerous contract issues across a wide range of subject matters. This resource draws attention to the need for all contracting parties to understand the impact of the interplay between industry customs, negotiation practices and standard contractual provisions during negotiations and the drafting of contracts.
Exemplary Practices
With the above thoughts about legislative drafting as background, let’s take a look at some best practices in contract drafting.
1 – If you can read them, then the people who employ you to read them will be able to as well. Of course, if I had to explain where this idea comes from, I would say it comes right out of Ms. Stark’s book. On page 15, she writes the following: "Why does it matter that we communicate clearly. What is the measure of that success? The measure of success for our business writing is how many others read the document without having to call us with questions. We are not great communicators because we believe our communication is ‘clear.’ We are great communicators because others can and do read what we write."
2 – Punctuation matters. Creative punctuation can make a sentence meaning unclear. Dashes can be used for emphasis and to break up lengthy clauses, but they can also create confusion. Commas are the busiest punctuation marks around, often connecting clauses that should be separate sentences. Semi-colons serve a purpose and, if used correctly, elevate the sophistication of the writer. It’s always better to use a period than to try to combine two sentences into one.
3 – Typos, typos, typos. Messy typing makes you look lazy or careless. I get it. I make mistakes. But before you send an important document to a client or to opposing counsel, READ IT. Please.
4 – Read your document out loud. I know. We’ve all heard this advice before, but it’s worth repeating. Reading out loud helps you isolate issues that might be missing or unclear. It also helps you find typos that you may have missed.
5 – Use tracking features and comments. Writing the first draft isn’t the end of the process. Writing that draft is just the beginning of the editing phase. Make the changes you think are necessary in the draft of the letter or document. Toggle on tracking features and comments so that you can easily identify changes that you and the business team will need to address.
Common Pitfalls
The lifeblood of a company is its contracts, so it is essential that they are drafted correctly and, just as importantly, interpreted correctly. Tina L. Stark in "Understanding Drafting: Learn Professional Drafting and Drafting Professional" provides invaluable insights into drafting documents that can help safeguard the interests of a company. Although problems will arise despite our best efforts, bad drafting can make them worse. So how do we avoid the most common pitfalls?
One of the most common mistakes in drafting agreements is to confuse the grant of a right with the exercise of that right. For example, if my client has the "right to file a lawsuit" any "damages" in any settlement between my client and the defendant will be limited to actual attorney fees and time to prepare the documents to file the lawsuit. But until my client actually files the lawsuit, only incidental legal fees (like copying costs or perhaps a small amount for the time spent researching the facts) may be recovered. On the other hand, if my client and I are heading back into mediation and we want to be sure that my client’s legal fees and time preparing the documents for the mediation are fully recoverable in a settlement, I need to have the right granted as of the date of the agreement, not the right to file a lawsuit that day.
Another common drafting mistake is limiting all remedies to the "exclusive remedy". A few years ago , the model rules of the American Bar Association changed and no longer used the phrase "exclusive remedy." Now the language refers to "limitation of liability". My clients are often concerned that their damage award will be too low if damages are limited to the amount paid under the contract. If the parties want to limit damages and make all remedies "exclusive remedies" it is best to add that "all agreed claims are exclusive limited remedies." This makes it clear that the only agreed remedy in the contract is to return all money paid under the contract.
A clause commonly found in the appendices of loan documents is a "Pay when Paid" clause which applicants sometimes think means they will not have to pay the loan if the lender chooses not to lend. For example, the applicant may be applying for a loan to purchase a new civic center from the city. The "pay when paid" clause in the loan agreement refers to the loan closing conditions and does not, for example, grant an option to purchase the civic center. It is important that the grant of a right not be confused with the exercise of the right.
Many contracts hold an "entire contract" clause to limit the effect of other oral statements. When unlicensed employees make oral statements the contract should probably include a clause holding that the contract supersedes the oral statements. Less desirable is a clause saying that oral statements are not material. At any rate, caution should be used to make sure that this clause does not unintentionally exclude statements that may later become important.
A last common mistake is failure to use the word "shall" in the contract. If the word "shall" is not used, an agreement is arguably not a legal requirement, but merely a statement of "what could or should be done." If it is not a binding promise, all parts of the agreement are voided.
Making sure that good drafting techniques are employed will cut down on disputes and increase the chances that the contract will be enforced as intended.
Teaching Philosophy
Her teaching philosophy for the curriculum taught in her course of study, whether it is a continuing legal education curriculum or a 4-year law school curriculum, is based on one of her most favorite quotes: "Remember this moment. Apply the lesson to future moments." She teaches her classes as she is an architect with a meticulous attention to detail and that she was developing a whole blueprint design in which the individual blocks are carved into a plan for where they go in the overall approach to the rules for contract drafting. That each syllable of her book is Chiseled In Stone and that she absolutely believes it is her obligation to educate the next generation of transactional lawyers whether they be the law students or the practitioners who choose to attend her courses and that she has to make sure that those who have already graduated from law school and who have written contracts and due diligence reports from the old ways have the ability to "think like a lawyer" when they come into the 21st century techniques of drafting contracts and how to make their drafting more efficient and effective. That so many attorneys in-house and outside speak just like law professors speak and not like practitioners and why her class is taught in a practical way where everyone who attends learns how to draft a regulation because that type of drafting is the basis of how to draft a clear and simple contract.
Legal Education
Although Stark’s influence as an educator has become more widely acknowledged in recent years, scholars have long recognized her contributions to legal education. Professor Douglas D. Boshkoff authored a highly regarded article, "A Study in Contrasts: Taking Full Advantage of Two Contract Courses," published in the Indiana Law Journal, and described Professor Stark’s impact on students saying that: Her lectures were among the finest ever presented to a class which coincidentally were a highly successful combination of the brilliant, provocative, and the practical side of contract law
Russell J. Weintraub, in Contemporary Contract Law, described Stark’s teaching style as "a forceful instructor with a terrific imagination and a refreshing critical attitude," who "indulged a passion for well-organized material and coherent structures."
Professor James J. Fischer writing in the Washington University Law Quarterly remarked that "[p]rofessor Stark is a dynamic educator whose classroom methods, as well as her scholarship, should serve as a model and source of inspiration for all law professors," and Professor Steven J. Burton wrote that Stark "teaches what many be the heart of Common Law pleading: the relationship of concepts, rules, subsuming rules, and exceptions within a single coherent theory."
Stark remains an influential educator to this day, with many law schools now requiring first year law students to take a separate course in contract drafting.
Final Thoughts: Trends in Contract Drafting
Like the law, contract drafting is organic. The fundamental rules of contracting do not change that often. In a typical practice, they come into play for every matter because almost every matter involves a contract, whether it is the principal agreement or some ancillary document that supports the principal agreement. When it comes to how we draft contracts, though, the more mature we become as lawyers, the more we must be aware of the evolution of the practice of contract drafting. We must live in the present moment with our practice of contract drafting, and, like the law itself, if it is not changing, it is dying.
With Tina L. Stark, the fact that ongoing development and evolution of the substantive elements of her work are not keeping pace with the quick progression of her transformation from educator and practitioner to author to acknowledged expert on the pedagogy of contract drafting is telling. Over the last three decades, the legal profession both reflected and advanced the principles set forth in The Law of Contracts, Practical Approach. In the 1980s and 1990s, the risks assumed by parties to a contract were considered a part of their negotiation. The issues to be negotiated should be raised directly in the contract between the parties. Fair or unfair, parties were expected to be familiar with their rights and obligations, as well as the risks associated with the matters for which they were seeking contractual protection, and to aggressively seek to protect them.
As late as 2000, just as Professor Stark was approaching the latter stages of developing her seminars on contract drafting, courts and commentators were reminding practitioners that contracts are "supposed to be a product of negotiation, not a vehicle for whim; [and] to enforce a buttoned-down or drab contract would be to defeat its purpose . " Those who resisted this evolutionary change are now (as they likely always were) indoctrinating students with what the law requires rather than what the law is on an evolving basis.
The overriding lesson of Professor Stark’s teaching on the first day of law school contracts class is "si vis pacem, para bellum" — "if you wish for peace, prepare for war". This admonition is normally aimed at the students who are "learning the tools" that in the near future will equip them throughout their career to be "deal counsel," or at worst "litigation counsel" when necessary. Professor Stark’s admonition, however, has another meaning: It is also aimed at those who can be deal counsel to protect their clients’ interests.
American contract law is about building the obligation structures that reflect how two parties wish to allocate the economic risks and benefits of their contract. To build contractually enforceable obligation structures, lawyers must do all they can to ensure that their client’s economic and legal interests are safeguarded. Today, this means that contract language changes will happen with each new technology to hit the marketplace, and will occur only after the courts give meaning and effect to those new technologies in terms of risk allocation under the contract.
To the extent that courts are willing to clarify the scope of the technology and apply existing doctrinal and common law principles to protect the innocent – and the public – and to punish the opportunist, contract drafting counsel will be in even greater demand going forward.