Donald Rupert is Fall 2016 BTLC Practitioner in Residence

Photograph: Donald Rupert.Donald Rupert, '76, was the Business and Transactional Law Center's fall 2016 Practitioner in Residence. During his October 18-19 visit Rupert presented at two Lunch and Learn sessions, taught in several classes, and visited with students in small group settings.

Rupert observed in Tuesday's Lunch and Learn, "IP Transactions - What to Do and What to Avoid," that many substantive areas of law and subject matter are potentially applicable to IP transactions, making IP a very exciting area of practice. Most IP agreements are of a continuing nature and may last a long time; thus, it is important to draft them properly. Rupert provided students with advice in the form of a list of steps to follow when drafting an intellectual property transaction and a few hints and suggestions, including:

  • Run a conflicts search and send an engagement letter before beginning any work on the project.
  • Work with the client to determine the transaction concept and particulars, the order of events, which laws apply, and the role of the attorney because it is important to understand how the client will use the agreement and if it could have multiple purposes.
  • When drafting, start with a flow chart of the deal to highlight milestones and events.
  • Turn the flowchart into an outline of the agreement and the necessary provisions, and order it so it has logical, consistent, and clear flow.
  • Commence drafting.
  • Exhaust one topic and then move to the next, but remember that many topics interrelate and may require continual changes.
  • When the agreement has been drafted, review the entire document carefully to ensure consistent definitions, wording, and punctuation.
  • Finally, read the entire agreement out loud, slowly, from start to finish.

Rupert also reminded students to be mindful of ethics and careful about using form books and form provisions because most agreements are deal specific. Any agreement should include an exit strategy, although most clients do not want to think about what will happen if the agreement fails. Rupert concluded by impressing upon students the need to avoid failing to communicate with the client, to do complete proofing, and to do post-signing follow-up to keep the client happy.

Rupert's Wednesday Lunch and Learn, "Writing for Practice - A Thoughtful Approach to Writing," began by him asking "What is your style?" Writing is a personal endeavor; Rupert encouraged students to develop their own style and an approach that is comfortable. When starting a project the attorney needs to understand the project, the finished product, the time limits, and the potential cost. Also, consider how time and documents will be controlled and think about the message to convey and the format that will be used to convey it in the available timeframe.

Think about and write for your audience. Rupert tries to write one published article each year, and writing for the different audience can help develop different writing skills. When writing for courts, state the issue first and in a manner that educates the court as to how it should rule. Use the issue to tell a complete story, but do not overstate or misstate the facts or law. In all writing, be discrete and civil; do not attack others. Instead, be aware that any of your writing could become an exhibit in a future court proceeding.

Before drafting, consider the significant obstacles of clarity and completeness. Visualizing the transaction and what the parties must do helps uncover problem areas. Research, organize, and prepare an outline before beginning to write. Then, write a first draft that focuses on getting the point across without worrying about precise wording. Take a break from the document for a day, and then take time to edit the entire document. Focus on organization, flow, and transitions, but after each paragraph, ask yourself "Why?" Make sure the document answers this question. Finally, Rupert recommended that students continually study the English language and make a conscious effort to always improve their writing.

Photograph: Donald Rupert teaching class at Washburn University School of Law.