Last year, while I was at a prominent law firm to do a seminar, someone from the law firm emphasized to me that they don’t use standard templates. Instead, they want their junior lawyers to figure out for themselves what should be in a given contract.
I thought of that when I read the following in Milgrim on Licensing, at § 10.00:
It is ironic that I offer you not only a commentary about licensing provisions, but form provisions as well. For years I prohibited the use of form books in my law firm, largely because I am persuaded that there is too often an inverse relationship between reliance on forms and on brains. Our profession is too critically placed in the licensing business—and we are too expensive—to engage in the beguilingly simple act of copying forms from a book. Our basic job is to worry through a task until the effort of our suffering results in a hard, finely chiseled gem.
A major drawback in relying on forms is the tendency to “accept” the form. If you accept the forms in this book you will not be giving to yourself the best treatment or your client a real run for the money. There’s hardly a provision that I could not improve in redrafting. If I can, you can. And should.
So one could conclude that the thoughtful lawyer doesn’t rely on templates.
There’s something to be said for that, given that contract drafting has long consisted of regurgitating, on faith, dysfunctional traditional contract language.
But templates can serve as a repository for deal knowledge. If you don’t use templates, you’re reinventing the wheel. And if an organization doesn’t maintain templates, the result will be organization-wide inconsistency and a lot of time wasted.
There’s an alternative to either slavishly following dysfunctional templates or reinventing the wheel—constructing and maintaining a rigorous set of annotated templates.
That sort of initiative shouldn’t be undertaken lightly. To do it properly, in addition to working on the templates themselves your organization should adopt a style guide for contract language and train your personnel in how to draft and review contracts consistent with that style guide.
But if you do enough deals, a rigorous set of templates will more than pay for itself, particularly if you automate them.
Achieving such economies of scale is straightforward for companies, which tend to use a limited number of templates repeatedly; for them, the biggest obstacle is inertia. It’s harder for law firms (see this article) but nevertheless feasible (see this blog post).