Q&A on Solos and Contract Drafting

Any law firm looking to put its contract drafting on an efficient footing will face challenges. (I discuss them in this article.) But slightly different considerations might come into play if you’re a solo transactional lawyer. That’s something I decided to explore with the following three volunteers:

Abe Sadie: Abe was a colleague in my BigLaw days; last year went out on his own. He represents technology start-ups and mid-size businesses and specializes in venture-capital financings, founders’ issues, and exit strategies. He’s based in New York City. And he’s an utter mensch.

Brady Kriss: Brady came to my attention through Twitter. Based in Boston, she provides a variety of legal services to entrepreneurs, independent contractors, freelance artists, writers and musicians. She’s also a certified information privacy professional, certified by the International Association of Privacy Professionals.

Benjamin Miller: I made Ben’s acquaintance too through Twitter. He’s based in Houston, Texas, and handles corporate and real-estate transactions.

Here’s our conversation:

Ken: When you’re at a big law firm and you’re looking for something to base a new contract on, the first place you look might be your firm’s document-management system. (For one thing, that would allow you to say, “But I based it on one of _____’s contracts!) Or your firm might even require that you use a specific template. As a solo, where do you look?

Abe: If not for the familiar forms I came along with, the transition to solo would have been much more difficult, at least from an emotional perspective.

My main sources for forms currently are the SEC’s website and good, old-fashioned googling.  As for the latter, even some of the most horrific forms on the Internet may contain an applicable issue that even the big firm forms neglect to address. The danger for a monomaniacal personality, like me, is that it’s easy to get carried away on the amount of time spent searching.

I’ll say this about my current clients, who tend to be much smaller than at the big law firm: they demand contracts that are shorter and easier to understand. Clients at large firms generally have a greater appetite for (unnecessarily) longer and denser agreements. I spend much of my time clarifying and editing down my precedents.  It’s probably made me a better writer.

Brady: I look to my firm’s document-management system, which I’ve put together myself. Unlike Abe, I didn’t come from a big firm environment, so I didn’t start my practice out with a cache of old templates—and I think that’s been a good thing. I put in a lot of time in the first, slow-going months of my practice into creating my own personal stash of templates out of examples from textbooks and other references, examples from courses I took in IP license drafting as part of my LL.M. program, and various other contracts I’ve gathered from in-house experiences as well as from EDGAR.

If I’m asked to draft an agreement for which I don’t yet have a template, I hit the books and make one. After creating a custom agreement for a client, I usually make a reference template out of that contract. I don’t just save the final client contract and then use it as a starting point for a subsequent client. Instead, while all the terms and the alternate language and the choices I’ve made are still fresh in my mind, I go through the contract and highlight sections that should be filled in or customized for each client, and I note any alternative provisions I might want to use later. I save it as a separate template file, and work off of it for future drafts.

Ben: I also didn’t come from a big-firm background, so I have had to build my forms library from an assortment of pieces. I have looked at forms books in the past, but most were very generalized and not useful for particular transactions (especially when it came to issue spotting).  If I need a new form, I tend to draft my own and treat others’ forms as an opportunity to check my work and see if I missed any issues. The Texas Bar offers a great library of CLE materials that often include forms, so I tend to start there if I think that the topic has been covered in the past. Usually they include detailed summaries of the law, issues to consider, and practitioner tips, which makes life much easier.

I have also used EDGAR from time to time, but I prefer not to use a document that has been negotiated, since the bargaining power of the parties to that transaction may well be different from the dynamic in my transaction. And I would echo Abe’s last paragraph: Most smaller clients want short, simple documents, even for relatively complex deals. I’ve found that bigger players tend to have more of a stomach for a comprehensive document (and sometimes expect archaic language). Occasionally, however, I deal with small clients who prefer long, lawyerly-sounding documents because they don’t believe that clear, modern language could be legally effective.

Ken: When it comes to efficiencies in the contract-drafting process, law firms have a harder time of it than law departments, as law firms are usually called on to draft a broader and less predictable range of contracts. That might apply particularly to solo practitioners. What has your experience been?

Ben:  My usual drafting is definitely broad-based and unpredictable. At any time, I may have joint venture documents for a nursing home next to a custom software development agreement on my desk. The hardest part for me is that the counterparties (and even more so their counsel) vary wildly in their level of sophistication. A document or term that a transactional attorney would consider automatic does not always appear that way to a personal-injury attorney looking over the document for a friend, so to some degree, I have to consider my audience when drafting.  This issue has thus far made it difficult, but not altogether impossible, for me to gain a lot of efficiencies in contract drafting. That said, a concise, tightly-worded provision often will work well with a range of counterparties. Perhaps this is because many people tend to perceive a shorter document as somehow more fair?

Brady: Breadth and unpredictability hasn’t really been an issue for me, as I’ve tailored my practice to meet the needs of a pretty specific group—small businesses and independent artists operating in a digital environment. I primarily do IP agreements, web terms of service, privacy policies, and such. This has allowed me to really hone my drafting to a particular area of law, and to a particular style of contract drafting. I really focus on drafting agreements that can be readily understood by laypeople, which is a skill a lot of my clients have found bigger firms lack.

Abe: In my case, I certainly can’t predict what my next drafting task might be, but that’s been part of the fun. I’ve drafted agreements as diverse as an oil-drilling services agreement, a night-club development contract, and an online-university teacher agreement. For these varied contracts, I’ve had to do a lot of cutting and pasting and smoothing-over from different forms. On occasion, I’ve contacted businesspeople in a particular industry to ask for sample contracts. It doesn’t hurt to have connections to businesspeople. Or to law librarians.

Ken: Do you see any way you could make your contract drafting more efficient? For example, could you imagine using Koncision or a comparable system?

Brady: I do think the Koncision system looks quite nice. And if I were to buy a contract template from another attorney, I would go for one prepared by an attorney (or group of attorneys) whose skill and talent for drafting I know to meet my higher-than-average quality standards, which means, of course, Koncision contracts. (No brown-nosing intended!)

However, for many of the consumer-facing agreements I write for clients, particularly privacy policies and terms of service for websites, it is important for me to be able to fine-tune the language to fit the brand voice of the client. Some website policies I provide for clients are pretty straightforward, and I’ve made my own templates I can use for those clients (usually for a flat fee), but for custom policies requiring a particular tone, I have to do it all by hand.

Abe: Most of my clients are technology startups. While the Internet generally suffers no lack of atrocious legal forms, a handful of venture capitalists and trade associations recently released free, model documents to be used for a tech startup’s initial investment rounds. These model documents aren’t free of problems, but they do represent high-quality work by some of the leading practitioners in the area.

If appropriate, I’ll use these or high-quality automated legal forms. It means less time spent searching for precedents and proportionally more time spent on other tasks, like issue-spotting and negotiating.

But I am somewhat concerned about the automation trend:  I hear about people using automated resources without retaining an attorney.  I’m absolutely in favor of lowering client transaction costs, but so much of effective issue spotting can only be accomplished by a probing attorney.

Ben:  I think I could make use of Koncision, particularly in situations where I’m being paid a flat fee for some or all of the project. Truth be told, the real appeal to me would be its compatibility with your MSCD, which is what differentiates it from other products out there.

I’ve seen standard documents that a few players have assembled for cookie-cutter deals. They’re fine for doing a deal with that particular player, but they’re not much use to me on an ongoing basis, as the deals I see tend to be too customized and even so-called standard documents aren’t universal. And some publishers offer a vast array of forms that go about an inch deep rather than catering to the specialist. To be of interest to me, any content-automation offering would have to target specialists.

I also echo Abe’s concern that automated drafting should be left to those who are capable of drafting the old-fashioned way but are looking for efficiency. I routinely meet with clients who have purchased “customized” sets of documents from web sites, even though they’re not really equipped to make the decisions required to generate those documents. The result is that the client spends twice as much to have me fix their mistakes as they would have spent if they had come to me in the first place.

Ken: Of course, currently Koncision’s only product is its confidentiality-agreement template. After some tweaking, which I’ll be referring to as “Koncision 2.0,” anyone looking to create a sophisticated NDA or improve an existing NDA would be silly not to use Koncision. And there’s no reason why that approach shouldn’t be applied to a broad range of contracts.

But as things stand, no rigorous and customizable language is available for any other kind of contract—a ridiculous situation. So for the forseeable future, and for better or worse, solos will have to include contract drafting among their services. Thank you, Ben, Brady, and Abe, for giving my readers a sense of the sorts of issues that solos face when drafting contracts.