Bar Associations As a Source of Template Contracts

In this post on his Law21 blog, Jordan Furlong offered his thoughts on, among other topics, how bar associations could play a greater role in developing form documents. I recommend you read it. I posted a comment; to spare some of you the labor of clicking and scrolling, here’s the part of my comment that’s most relevant to Jordan’s suggestion:

Regarding forms, my experience suggests that the potential role you see for bar associations ain’t happening.

You have the problems pointed out by John Gillies in his comment: Leading practitioners are unlikely to be keen on commoditizing their drafting expertise. They might well not have the time. And “drafting by committee” has a way of bogging down any drafting initiative.

LACKING EXPERTISE

But the problem goes beyond that. The lawyers and judges who would do the heavy lifting might be experts in their field, but it’s unlikely that they’re experts in writing.

Consider this from the perspective of contracts, the most compelling candidates for forms initiatives. Contract drafting has long consisted of regurgitating the language of contracts that have gone before, with the result that traditional contract language is dysfunctional. It’s safe to assume that the stalwarts of bar associations are steeped in that tradition, so it would be unrealistic to expect them to bring to bear a more rigorous approach, particularly as they’re volunteering their time.

That’s why all bar-association model contracts that I’ve seen are at best decent starting points.

INSUFFICIENT ECONOMIES OF SCALE

And even if a bar association were willing to try a suitably disruptive approach, the economies of scale aren’t what they might be, at least when it comes to contracts.

The lawyers in a given jurisdiction are probably called on to draft a broad array of contracts, so it would be a challenge to compile a library that’s big enough to be useful. And you can expect that a particular kind a contract is also used in other jurisdictions; you could end up with lots of bar associations each preparing their own forms for that kind of contract. That’s inefficient.

Until such time as bar associations establish a consortium for forms initiatives—in other words, until such time as pigs fly—I think that a more likely vehicle for commoditizing contract drafting is trade groups for particular industries or government functions: they could offer a limited range of contracts to users in many jurisdictions.

Incidentally, Jordan’s post attracted only three comments. I take that as another indication—not that we need any further evidence—that conversational blogging ain’t what it used to be.

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.