Consider the following quotation:
“We see partners who are doing the same work they did as associates,” he says. “If they’ve been promoted, why should they still be writing contracts?”
It’s from this article in Corporate Counsel about how law departments are increasingly requiring outside counsel to implement technology. It was uttered by the director of information systems for Microsoft’s law and corporate affairs department, in connection with how Microsoft uses e-billing to determine who’s doing what work at its outside counsel.
I understand the point: no company wants to pay a steep hourly rate for the dubious privilege of having a partner scissor-and-paste together a contract.
On the other hand, one could conclude from the quotation that drafting contracts is a rudimentary undertaking that can safely be left to associates. That brings to mind a scary vision of largely clueless associates hacking at forms of questionable quality and relevance.
The solution isn’t to have partners more involved. Instead, associates should be less involved: drafting should be commoditized.
Something that NEVER gets mentioned in these discussions is contract review. Sure document assembly simplifies the “simple” part of contract drafting, but that’s hardly the end of it, usually.
More frequently that preparing a brand new agreement (or assembling an agreement), I’m left reviewing someone else’s work product for my client because they’re not interested in reading the seventy-five page franchise/licensing agreement.
This means 1) spending a lot of time reading the agreement; 2) preparing tons of changes; 3) making the business terms fit; and 4) rinse and repeat.
I’m not entirely sure what’s more time consuming, initial draft work, or review.
As a client, I expect that a senior level lawyer will be involved in the drafting of contracts and other documents. That person may use a less experienced lawyer or para-legal to assist her. That is the lawyer’s decision.
I expect that in many cases it is less costly for the experienced person to do the drafting rather than have one person do part and another do the rest.
But the main point is that the drafting of an important document is not an unimportant task that can be left to the less experienced (and cheaper) people.
Mike: I agree that reviewing a contract can be as time consuming as drafting one. (How much you’re required to do of each task will depend on the kind of business your company is in.) And the worse the drafting is, the more time consuming the review.
Cutting down the time spent on review is difficult but not impossible. Both sides would need to be familiar with the form used by whichever side is drafting. That already happens in some industries—witness the way the National Venture Capital Association’s model documents have become widely used. I’m hopeful that a source of a broader range of documents will appear on the scene in the not-too-distant future.
Ken