The 2022 edition of the Future-Ready Lawyer survey points out that 86% of legal departments have received a significant impact from the Great Resignation. On top of that, 70%(!) of in-house counsels state they are very to somewhat likely to leave their position in 2023.
It remains to be seen whether these intentions will effectively materialise, but the impact this has on general counsels trying to run a tight ship cannot be overstated. Their lawyers spend months getting to know the organisation when they first join and, through trial and error, build deep knowledge on the company, the sector, and the legal team’s processes over the course of several years. If the Future-Ready Lawyer survey is to be believed, that expertise will likely be gone before the year is up.
ClauseBase has helped many in-house legal teams optimise their legal drafting. Below is a breakdown of some of the ways that we have seen legal teams preserve legal drafting knowledge beyond the tenure of in-house counsels.
The kind of legal drafting knowledge that companies will want to preserve (and by extension, the kind that is lost along with a lawyer’s departure from the team) typically takes the form of questions like:
- Which clause is ideally suited for scenario X, service Y or product Z?
- What is our company standard clause for issues like liability, confidentiality, intellectual property, etc.?
- What are the industry standards regarding a particular issue (e.g.: what kind of liability cap is (un)acceptable)?
- What is our position on alternatives proposed by the counterparty?
- What is the organisation’s level of risk appetite on issues like GDPR, advertising, sales, etc. in the context of providing legal advice?
Naturally, there is far more to being an in-house counsel than just knowing the answers to the questions above. True experts can navigate (internal) politics, know the ins and outs of a specific sector, know how to deal with specific kinds of clients from years of practical experience, etc. No matter how hard an organisation tries to instil a culture of knowledge preservation, something will always be lost if such a lawyer leaves the team.
Nevertheless, when it comes to contract drafting, there are ways to mitigate the impact of such a loss to the rest of the team.
It’s cliché advice to say that legal departments should have their templates in order – every in-house counsel knows this and most of them feel appropriately guilty about it. So we won’t.
What we will say is that templates are not the first and final answer in knowledge preservation. .
We see two kinds of templates used by legal teams.
(1) The anonymised precedent – Some templates are little more than a precedent in which all of the client/file specific information has been removed. They offer no explanation for why a specific clause is drafted the way it is, what the fallback positions are, and are not regularly updated in light of the feedback loop that comes from putting the document out into the world.
Using templates like this for anything more than basic form filling is bound to result in disappointment, though. Inevitably, they will involve a lot of copying, pasting, and tweaking each time the document has to be drafted.
(2) The living knowledge base – Other templates are subjected to continuous improvement and augmentation. They may start from a position of being little more than an anonymised template, but over the months and years that the document gets used, lawyers will tweak, add, and remove where necessary based on market feedback.
After a while, these templates tend to become augmented with all sorts of additional guidance and flexibility in the form of fallbacks, comments, drafting notes, etc. When done properly, they even allow the Legal Department to outsource contract creation to business units. Augmented templates can also serve as the basis for document automation and the creation of self-service platforms – one of the most popular applications of technology in legal departments today.
Clause libraries (also known as “clause banks”) are knowledge repositories filled with clauses that give in-house counsels a one-stop shop for their bespoke drafting needs.
While few legal departments today have a culture that encourages lawyers to store their best clauses, most individual lawyers already have a clause library of their own in some shape or form. Some store the clauses they frequently reuse in a MS Word document, some may prefer spreadsheets. Other still use dedicated clause library tools like ClauseBuddy.
Legal departments have a great deal to gain from creating a clause library that acts as a central “shared brain” of standardised material like base clauses, fallbacks and alternatives, and where each team member can deposit their knowledge and share it with the rest of the team. In the in-house legal teams we work with, we have seen the following key benefits:
- Standardisation – content that makes it into the clause library – especially if managed by a central curator – implies that it has been approved. Having lawyers work on the same, approved language lowers communication barriers within the team and reduces the likelihood of inconsistencies between its different members.
- Centralization – legal drafting takes time. Much of that time is spent on “dumb” tasks like sifting through previously drafted documents. A central shared brain sends a clear message to lawyers: “here is where you will find what you need”.
- Efficiency – all of the above ensures that lawyers are able to draft more efficiently, whether it’s because they find the right base material more quickly or because they are more aligned on company policy.
Surprisingly, the major challenge in setting up a clause library is not getting the knowledge in there. It’s getting it out.
As more and more clauses are made available, it inevitably becomes harder for lawyers to get to the content they need. Since they may not have been responsible for creating that content, they cannot be expected to know exactly which keywords to search for. The following tools can help to augment that knowledge:
- Legal Knowledge Tree – if a lawyer searches for a liability clause on the basis of the keyword “liability”, they are bound to receive a lot of noise. This is because the keyword “liability” or “liable” is used in a wide variety of clauses. If, instead, the lawyer is given the option to browse through a folder structure – shaped like a legal knowledge tree – containing all the liability clauses for a given legal domain or type of document, they will retrieve what they need much faster.
- Tags – a surprising amount of information on a clause is hidden between the lines – e.g.: which party is favoured, how balanced the clause is, in what legal domain it can be used, etc. Other information may not be readily apparent from reading through the clause at all – e.g.: whether a clause is company standard or fallback, what jurisdiction it is allowed to be used in, which (type of) counterparty it is specifically designed for, etc. Tagging clauses with those nuggets of information can help lawyers to make the right call more easily.
Looking for a deep dive on building clause libraries? We’ve got you covered.
A contract playbook is a document that sets out the company’s position on specific clauses and acts as a manual for how to deal with these clauses in negotiations. It sets out company standard clauses and fallbacks, as well as the circumstances under which a company will walk away from a deal.
This typically means a playbook will contain the following information:
- Identification of key clauses – in commercial contracts, the usual suspects include confidentiality, liability, intellectual property, etc.
- Identification of company position on key clauses – what are the standard positions of the company when it comes to the key clauses? What are fallback positions? What is (not) permitted? For example: does the company allow a “super cap” to be included in a liability clause and, if so, for which issues?
- FAQs – repeated drafting by different parties typically reveals the questions that reoccur in relation to a particular clause or document. A playbook may be augmented with this kind of knowledge to pre-empt these questions – e.g.: how a certain clause should be explained to a customer, or how a certain clause interacts with other clauses in certain circumstances.
- Country-specific considerations – if your legal team’s drafting occurs cross-border, you may want to indicate how clauses should be treated under different governing laws. For example: a non-compete clause should typically be limited in time and geographic scope, but every jurisdiction deals with those limits in different ways.
Implementing a culture of knowledge preservation
In truth, most in-house counsels are not accustomed to sharing and maintaining knowledge in a structured format.
A legal department may develop a knowledge centre by sheer willpower of the project owner, but it will have to rely on buy-in from the in-house counsels themselves it if wants that knowledge centre to survive.
The most important contribution to a culture of knowledge preservation is to foster a sense of ownership of the knowledge centre and to hold lawyers accountable to not only use it, but also to contribute to it. In our experience, this culture shift is typically supported by one or more of the following initiatives:
- Dedicating (part of) recurring team meetings to a conversation on contributions made to and gaps spotted in the knowledge centre by individual lawyers.
- Creating goals like “number of clauses added” (only useful during the set-up phase as this goal is easily gamed), number of documents generated using automation, …
- Assigning ownership of (part of) a library to a dedicated project owner/evangelist (we call this “the curator”).
While we cannot say how the Great Resignation is going to play out in Legal over the next few months, we have experienced first-hand the stress and drudgery that leads to a decision to resign. We have also worked with legal teams that cite employee departure as one of their top 3 concerns. The conclusion from both experiences is this: people want to work in an environment that supports them to focus on what really matters. A modern system of knowledge preservation supported by the right technology achieves just that. While such a system may be implemented to insure against lawyer departure, it – paradoxically – may even end up preventing it.