I’ve heard lawyers from two English “Magic Circle” law firms say, in different words, the same thing: We treat contract templates as a starting point. We want our young lawyers to figure out for themselves how best to adapt the template to the deal.
That confuses two parts of the deal process, namely (1) coming up with deal points and (2) coming up with the verbiage to express the deal points.
Junior lawyers have their hands full figuring out what terms are required for a given deal. There’s nothing to be gained from leaving junior lawyers to reinvent the wheel by coming up with the verbiage to reflect standard terms.
I suggest that the current approach is entirely a matter of making a virtue of necessity. Law firms are wedded to passive drafting, with results I describe in this post. If law-firm management were more centralized, if law firms were less beholden to the billable hour, and if clients were to insist that law firms be more efficient, more law firms would create contracts using Contract Express or a comparable software. Junior lawyers would create contracts by answering an annotated online questionnaire. They would create a first draft in a fraction of the time that it would take if they had to customize a Word template, and the result would be of higher quality.
Would young lawyers lose anything in the process? Not if they observe what changes are made to the document as a result of the answers they select in the questionnaire—that’s readily accomplished using Contract Express’s “Preview” mode.
Furthermore, there’s a good chance that an output document would require additional changes, whether to reflect nonstandard deal points or the results of negotiation. That would give junior lawyers plenty of opportunity to flex their drafting muscles. If they’re used to working with quality contract language and are trained to draft consistent with a style guide, making bespoke changes to the output of an automated system would be straightforward.
Here’s a more candid assessment of the current system: We treat contract templates as a starting point because that’s the way we’ve always done it, and we’ve made a lot of money doing it that way. Reinventing the wheel doesn’t hurt us; if anything, it means more billable hours. Any anyway, we’re not comfortable with acknowledging that the bulk of our drafting is commodity work. Our docile clients allow us to get away with an artisanal approach.
3 thoughts on “Why Law Firms Treat Contract Templates As a Starting Point”
There may be yet another pathology involved. The phrasing you carried forward from their comments suggests that the firms view drafting as a partly educational exercise. If the training lawyers get in law school, which mostly emphasizes analysis of appellate decisions, does not emphasize the way drafting integrates into contract doctrine (which it certainly didn’t in my day at Harvard, and I suspect that’s the case at most upper-echelon law schools), then drafting basic clauses is a way in effect to learn by doing, with predictably variable results. A pre-fab contract form, such as a document assembly program would utilize, discourages the younger lawyer from understanding just *how* the language the program spits out, no matter how perfectly it expresses points, puts legal doctrine into operation.
That’s nothing against the efficiency arguments in favor of document assembly, but it highlights the gap between legal education and lawyer training. My suspicion (subject to correction by those who actually know something about the subject) is that the British legal system is closer, still, to the apprenticeship model of legal training than is the case in the US; but of course the old habits die hard even here. One solution, of course, is for senior lawyers to work through the templates with younger ones and explain (if they know) the correlation between the drafting and the doctrine. But, as you note, that’s probably not billable time.
The annotations in an automated template provide ideal training: just as you’re making a decision, you’re given comprehensive guidance of the sort that it’s unlikely any mentor would be able to provide.
Ken, you distinguish between ‘coming up with deal points’ and expressing the deal points in words.
What is ‘coming up with deal points’? Is it ‘reaching a deal’ or ‘finding out what the parties agreed’? Each seems like a pre-drafting activity. –Wright