“Every lawyer steals like crazy. You have to,” says Eric Boehm, counsel with Torys LLP in Toronto, in reference to the practice of using material, sections, and language that appear in existing legal documents. “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 need to be efficient and effective has always driven lawyers to look for ways to streamline and automate production of legal documents, where appropriate. The need for junior lawyers to start somewhere has also driven them to look at previous creations. “When I came out of law school, I had to get templates from other lawyers and libraries. Law school teaches you the skill set. They don’t give you the tools,” says Michael Carabash, a Toronto business lawyer and founder of www.dynamiclawyers.com, which offers consumers — and lawyers — a wide range of legal forms and support material online.
Such tools are in greater demand than ever. In the wake of recession, law firms are feeling significant pressure to lower their bills and demonstrate value for money. “The marketplace isn’t allowing firms to regularly increase their rates. That makes document assembly much more attractive,” says Tim Allen, London, England-based vice president for North America with Business Integrity, a document-assembly and contract-management software company.
That attraction moves beyond saving money to making money, he notes. “The most progressive law firms have realized it is possible to have a new business model: 20-per-cent less billing, 40-per-cent less cost.”
The potential black ink is the result of very real savings that can come when processes are automated. One of those processes is document assembly. “It would not be an overestimate to say that 90 per cent of any lawyer’s work product is recycled,” says Boehm, who practises technology law. “In fact, our clients would scream if we built our contracts from scratch each time, both in expense and for legal liability reasons, since we reuse clauses especially when they have been considered and have worked in the past. For this reason, document templates certainly makes a lot of sense.”
Common sense will soon translate into myriad choices. The words “document assembly,” “templates,” and “boilerplate” (to name but a few) all mean something different to different lawyers and in an age where technology changes as quickly as the weather. “The term ‘document template’ can be used to mean documents that aren’t far off from being forms that simply need to be filled in,” says Kathleen Hogan, a practice support lawyer with Cassels Brock & Blackwell LLP in Toronto. “These documents require a good deal of formatting, which can make a document unstable and difficult to work with,” she notes. “Often, these kinds of templates also include some content that is repeated nearly exactly from document to document. For example, court forms are document templates of this nature.”
From this baseline, legal documents grow in complexity and customization to become precedents. “The form of these documents is not dictated by a third party and may be unique from firm to firm,” she says.
As a result, document templates and assembly software come in a variety of forms. At one end of the rainbow of choices are companies like Carabash’s, which offers the full meal deal for users. In addition to providing a template in legal areas including wills and estates, family law, employment, and landlord and tenant issues, the Ontario lawyer has developed a complementary video, a written primer, and a document identifying potential challenges. At the other end of the spectrum are firms like Business Integrity, which provides software that lets firms automate much of their workflow process, document assembly, and contract management. What law firms have typically done is build the contract language from within the firm. Indeed, says Allen, “what should be going into the template is the very highest level of legal expertise.”
“Authoritative document assembly requires three components: suitable technology, rigorous contract language, and state-of-the-art substance,” says Ken Adams, an expert in drafting business contracts and a plain-language proponent based in Garden City, N.Y. The technology is now readily available, he adds. “But the other two components are tougher to achieve, whether you’re a law firm, a company law department, or a vendor.”
Adams hopes to change that reality with Koncision Contract Automation, what he calls “the first to offer a complete set of credentials.” The site’s inaugural product offering, confidentiality agreements, is expected early this year.
Regardless of the nature of the documentation system or template, certain advantages are almost inherent. “You’re going to save time. You’re going to save money,” says Carabash. There’s more. “All templates benefit lawyers by increasing the efficiencies in a practice,” says Hogan. “If a lawyer knows how a document should look and ‘feel,’ a great deal of time is saved by having easily accessible templates that can be created, edited, and produced quickly and reliably.”
“Similarly,” she points out, “if a practice requires the production of a certain contract on a frequent basis, with only a few clauses needing to be inserted, deleted, or tweaked depending on the circumstances, the ability to rely on a template, with easily accessible variations, will help the lawyer practise more effectively and efficiently. Templates reduce assistant time and lawyer time, which, in turn, increases profitability, especially in fixed-fee arrangements.”
Efficiency is at the heart of the document-assembly software and templates. In many cases, such as debt claims, producing a document is almost a commodity process, says Boehm, and in these situations, it does not make sense to start at the beginning and create new material. Clients would also not tolerate such a labour-intensive approach, he adds. “Our clients would scream if we built everything from scratch. What people want their lawyers to do is not reinvent the wheel if it’s not necessary.”
That will save a firm and its clients money. But in reality, a firm might make even more money using document assembly and templates, says Allen. “Firms can increase market share because they’re price-competitive. They’re not just grinning and bearing [the market].” Hogan says: “There is also a risk-management aspect to using templates and precedents. Using a well-organized library of templates or precedents that are kept up-to-date will reduce the chances of missing a clause or item if the document has to be drafted quickly from scratch.”
While the glass is half full, it is also half empty. There are downsides to the use of automated processes and prepared documents, which can be significant. “By simplifying, you can oversimplify,” cautions Boehm. “The devil is in the details — and each deal is different.”
Context is critical, stresses Carabash, who pitched his legal documentation business to CBC TV’s Dragons’ Den. “There is a lot of risk in blindly using a template. You need to assess how specific the template is to your client’s needs.”
Lawyers also need to do their due diligence. Automation is not a replacement for continued scrutiny. “Documents like precedents and templates can become outdated over time, as practices in an area of law change, or even in an instant, with the release of a case that interprets a legislative provision affecting contract language. Lawyers must, therefore, review their precedents frequently to ensure they are up-to-date,” says Hogan.“Precedents can also create a sense of security that may be misplaced. Even reliable, up-to-date precedents are not appropriate in every circumstance. Lawyers must review the facts and context of each matter before using a precedent and ensure that each clause is drafted appropriately.”
That review comes in two forms. If the template is provided by a company, it must be looked at carefully with respect to jurisdiction and applicability as well as timeliness. If it is being developed in-house using document-assembly software, time and effort — from senior lawyers — will be required. “Our technology is no more than a very clever machine,” says Allen. “It doesn’t know the law. If you put garbage in, you’ll get garbage out.”
Trust, he adds, is critical to the effective use of automated systems, and trust is earned. “What should be going into the template is the very highest level of expertise.” Caution is required when using technology and someone else’s words. “[Lawyers] should . . . know where a precedent came from and the context in which it was drafted — a vendor-friendly share-purchase agreement will not be a good starting point for a lawyer representing a purchaser in another matter,” notes Hogan. “In particular, junior lawyers must be careful when relying on precedents as they may not have the experience to spot those kinds of issues.”
Hogan points to another issue that many lawyers may overlook: metadata. “Lawyers should be careful when reusing documents to scrub the old document of metadata before using the content for a new matter. Metadata can contain confidential information, and it would be a breach of client confidentiality rules, not to mention highly embarrassing, to send that information to another client or opposing counsel.”
Firms and in-house counsel must also be prepared for an outlay of cash prior to reaping any rewards. “Setting up a document-assembly system takes time and money, and the economies afforded by the system will exceed that initial investment only after it’s been used for a given number of transactions,” says Adams. “So whether it makes sense for an organization to invest in a document-assembly system will depend on its volume of contracts, but the volume required continues to drop as the software becomes more accessible.”
Before long, there will be a return on investment, says Allen. “You can afford to invest a lot of dollars in the process because you know it’s going to be used a thousand times over.” Furthermore, he notes, the technology “allows firms to do four times the work in the same amount of time.”
For in-house counsel, efficiency is also the main driver for the use of document assembly and templates. But the fuel is not the same. “Time is money has a fundamentally different meaning for a corporate lawyer than a private lawyer,” says Allen. General counsel are under pressure to produce documents more quickly and more consistently. “The law department may have different lawyers working in parallel. It is hard to guarantee consistency. From a risk-management and auditing perspective, it becomes hard to say these documents are the same.”
One thing seems certain. Document assembly and templates are here to stay — in a greater capacity than ever before. Although there are no hard and fast numbers on the growth in this area, the time is ripe for their proliferation. “Clients are asking lawyers to identify types of matters, and processes within matters, that can be automated and even predicted in order to decrease and fix costs. One way to do this is to control the production of contracts,” says Hogan. And while forms have been around for many years, she notes, in practice these tools are still quite new. The learning curve can be steep but the return on investment can be well worth the time and effort.
Expectations are also an important factor. Younger people are as comfortable with the new technology, and the new ways of practising the business of law, as they are with their mother’s old adages. It’s not only that they will be more relaxed when faced with new software, it’s that they expect such software to be part of their practice. And so do younger clients. “My generation is the Google generation,” says Carabash. “We want things now. We want things cheap. That’s the next generation of clients.”
Despite the discomfort some lawyers might have with the approach and the technology, document assembly and contract-management tools can actually bring peace of mind. A survey conducted by Business Integrity in the wake of the recession found that moving forward, the most important business driver for law firms was the fear of losing their biggest client. The second biggest worry: losing a client in play to a competitor.
Of course, one way to keep existing clients and draw in new clients is to be faster, more productive, and less expensive than the other guys.