The Canadian Lawyer article on contract automation (see this post) starts with the following quotation:
“Every lawyer steals like crazy. You have to. … It’s much faster, and it’s good to go with tried-and-true boilerplate. You worry about the differences, not the standard clauses.”
The reference to stealing brought to mind my article on copyright in contract drafting. (Go here for a PDF copy.) When it comes to Koncision’s language, “stealing” will be more than a figure of speech!
But what caught my attention in particular was the reference to “tried-and-true boilerplate.” For two reasons, I don’t think such a beast exists.
First, the precedent contracts I see are usually varying shades of suboptimal, in terms of language, substance, or both. And no one has time to figure out what makes sense and what doesn’t. If a particular bit of contract prose has been reused year after year after year, that’s no guarantee of reliability. Instead, it likely means that no one has subjected it to real scrutiny and that you probably could poke holes in it.
And second, you can customize extensively even relatively simple contracts. The bit of boilerplate you’ve elected to copy might reflect only one of any number of ways to approach the topic in question.
The first issue relates to the quality of your contract language and substance; the second issue concerns the extent to which you can expect to customize your contracts. With Koncision, I aim to offer one solution to both issues.
Ken–Although it wasn’t the focus of this post, your article on copyright in contract drafting that you link to is an excellent treatment of the subject. Very informative.