It is no secret that lawyers live for the details. A greater attention to detail is how they distinguish themselves as experts; inferior attention to detail can land them in a world of trouble. It is only natural then that, when it comes to drafting documents, lawyers spend a lot of time tweaking and optimising where they deem necessary.
Evidence suggests, however, that a lot of (the already substantial amount of) time spent tweaking and optimising does little in the way of creating legal nuance and instead leads to nothing more than cosmetic changes that don’t offer any concrete value. The solution? Standardise your content so you spend time where it matters most.
The editing bug
Lawyers will almost always begin drafting from existing material such as a template document or a document that was previously created for a different client or project. From there, they often lose focus when making the necessary changes and start to make minor tweaks that often amount to purely cosmetic adjustments with little added value. In a world where lawyers are increasingly pressured to work more efficiently, this can take up an excessive amount of time.
One situation where this has become objectively apparent is in the field of M&A contracts. Over the course of 20 years, Robert Anderson and Jeffrey Manns analysed 12.000 public company merger agreements. Using computer textual analysis, they were able to identify the base material for each deal, which allowed them to visualize how contracts are created and how they change over time.
In short, their research showed that:
- a high level of “editorial churning”, unnecessary and ad hoc edits that appear to be cosmetic rather than substantive, take place in legal drafting;
- contracts are the product of an organic evolution over the years where an initial precedent contract is built on and added to by individual lawyers; and
- lawyers tend to add significant amounts of superfluous information to each deal and even inadvertently retain deal-specific information from prior deals.
Standardisation as the solution
In order to refocus their time and energy, lawyers should agree upon standardised content within their organisation, department, or team. This can take the shape of a library of clauses or template documents that provide useful jumping-off points for different legal nuances a document can take. Some ad hoc edits will always need to be made, but standardisation – if done properly – eliminates many of the superfluous edits.
Standardised content also allows lawyers to predetermine the house style of their organisation to avoid running the risk of inconsistency in produced output and to limit the time spent on optimising the look-and-feel of a document.
Standardisation vs creativity: a false paradox
A common argument held against standardisation is that it would constrain lawyers in the way they apply their legal expertise. Setting up rules and predetermining content would have the effect of limiting their freedom of choice and therefore rendering them incapable of providing the best possible service.
While this idea that standardisation and creative problem-solving are mutually exclusive seems to make sense at first glance, it is actually a false paradox. Not only does standardisation not stifle creativity, it can even enhance it.
A quick look outside of the legal sector can confirm as much. The ICT sector in particular has thrived on standardisation as a commonly agreed-upon way of doing things (e.g.: keyboard layouts, USB, CDs, Blue-Ray, etc.), despite concerns that it would stifle innovation. Not only did standardisation in this sector benefit the market (imagine if every computer hardware producer was free to choose their own keyboard layout), research shows that it also helped to achieve focus in innovation and reduce undesirable outcomes. The consequence is that a more limited set of choices can be made but the choices that remain are the ones that really matter.
Where to get started?
If you want to get started with standardisation, start with identifying a quick-win document that you can turn into a template. This is a document that needs to be drafted frequently, is flexible but not too complex, and features some optional content. You are probably familiar with what a good template needs but below is a cheat sheet you are welcome to use when creating one:
- Collect different past manifestations of a document – e.g.: an NDA will probably have been drafted in a unilateral fashion and a mutual fashion. Find the alternative clauses between the different versions that act as legally nuanced alternatives.
- Collect different optional clauses – e.g.: an NDA may also feature a non-solicitation clause. Put them into a (makeshift) clause library.
- Decide what your house style should look like.
- Lock some experienced lawyers up in a room and don’t let them come out until they agree on which clauses, wording, and styling to use.
- Replace variable information like party names, addresses, dates, durations, etc. with placeholders – e.g.: “[party1 – name]” or “[commencement date]”.