Relying on Templates

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).

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.

6 thoughts on “Relying on Templates”

  1. I agree (with you, that is). It’s easy for someone who charges ($$$) by the hour to say that one should start from scratch for every deal. There’s a lot of room between that and slavishly following a template–every template should be viewed as a checklist, with each provision to be compared to the deal at hand (not only the deal specifics, but also the transaction’s and the parties’ tolerance for complexity).

    • A nuance: If an organization has invested in a serious template initiative, it’s entitled to expect that drafters won’t start second-guessing decisions reflected in the templates. Yes, understand what’s in the templates and the customization offered, but don’t assume that you know better than those who compiled the templates, unless they’ve shown themselves to be unresponsive.

      • But equally, don’t assume that the template writer knew better than you on the deal in front f you.

        “serious template initiative” is a big qualifier. If I work for BigLaw, which has its own tempates, how do I know whether this applies?

        • I think it’s a function of how much the organization cares about its templates. Mind you, at a law firm it would be difficult to force people to use a set of templates. If the templates work, people will use them because the templates make life simpler.

  2. If I ever found out a firm I used was drafting every contract I asked them for from scratch, and having “young lawyers” do it no less, well let’s just say they wouldn’t be a firm I used much longer. Training their associates on my (company’s) dime–no way. Start with a template and use your brain to make sure it works for the deal at hand. And don’t send me a bill for all the time you spent reinventing the wheel.


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