Audit Your Outside Counsel’s Contract-Drafting Process?

This article by Monica Bay in Law Technology News caught my eye. It describes how D. Casey Flaherty, corporate counsel at Kia Motors, uses an audit program to assess how cost-effective its outside counsel are in handling basic, frequently recurring billable tasks:

The firm’s sacrificial lamb associate is asked to perform four mock tasks, that are evaluated by the outside counsel.

Examples of mock activities:

  • prepare exhibit binders for arbitration;
  • draft and finalize opposition to a motion for summary judgement;
  • draft written discovery responses; and
  • prepare a settlement agreement.

The test is designed to evaluate, among other skills:

  • the use of staff/division of labor;
  • proficiency with Office, including sorting, filtering, cleanup, and other functions;
  • use of protocols and best practices for preparing written work product;
  • availability of best practice templates, forms, and checklists; and
  • the firm’s investment in current technology.

Obviously, Kia Motors’s audit involved activities related to litigation, but that approach could be applied by anyone looking for outside counsel to handle transactions.

Perhaps I’d start by asking two guinea-pig associates from the firm being audited to draft a basic contract from a provided term sheet, and I’d observe how they go about it. I’d follow up by posing the following questions to management:

  • Does the firm use a style guide for contract language and contract format?
  • Does the firm train its lawyers in drafting consistent with the style guide?
  • Does the firm maintain, and keep up to date, a library of document-assembly templates or annotated Word templates of basic kinds of contracts?
  • Does the firm require that its lawyers use those templates?
  • What other technology, if any, does the firm use in the contract-drafting process?

I’m aware that the number of law firms that could answer all those questions in the affirmative is perhaps zero. But a guy can dream. My law-firm days are long behind me, so I’m sure you can think of less aspirational questions to ask; I invite you to post them in the comments.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.