Unfortunately, most legal documents are drafted using an approach that involves a high margin for error. Specifically, most lawyers simply find an existing document they previously created for a similar client or purpose, save it as a new file name, and start making changes to it.
This approach is unquestionably better than starting from a blank page and ignoring existing content. However, the approach suffers from significant drawbacks:
- First, finding the document can be time consuming; and sometimes you never find what you're looking for.
- Second, if you do find a similar existing document, the word processor's Find and Replace function rarely catches everything.
- Third, it is very easy to forget to add provisions/text missing from your original document. Even if you remember what to add, pulling text from other instruments or crafting new language is inherently slow.
- Fourth, it's common to leave something in which should have been removed. How many times have you read an instrument containing language that seemingly has nothing to do with the transaction or matter at hand?
- Finally, the worst problem with this approach is that many starting-point documents were previously negotiated. Remembering all of the little compromises made while negotiating the prior matter is nearly impossible; and each one can be a landmine for your current client.
In view of the foregoing, starting new documents from existing documents is risky and dangerous (even though it's the most common way documents are drafted in the legal world). A document you previously drafted for another client isn't a starting-point, it's a finished product; and you can't un-bake that cake. What you need is a recipe; and the document equivalent of a recipe is a template.
A template is a model document which contains the best of what you and your colleagues know. Starting with a template to draft a new document eliminates the margin for error described above. Changeable text is consistently identified throughout the template. Optional provisions are included in the order they could occur and are annotated. Annotations mark the beginning and end of each optional provision as well as specify the conditions for inclusion. Annotations are typed directly into the template for the drafter to read (and deleted when building a document).
The following is an example of a drafting annotation:
Another rule of template building is to have one template per type of instrument. For example, instead of having a separate template for a Gross lease, a Full Service Lease, a Triple Net Lease and a Modified Net Lease, you should have a single lease template combining all of the optional provisions into a single document, fully annotated. There's a good reason behind this rule.
Multiple templates for the same type of instrument will invariably contain a lot of common language. When that common language changes, you'll have to modify all of the templates to ensure consistency. In my 20 years of helping firms with this, I've never seen a firm successfully keep the common language in multiple templates consistent over time. It's never anyone's job to make that happen, so it just doesn't happen.
Below is an example of what I’m describing. None of these differences were supposed to exist between the two documents and yet nearly every paragraph had language variations like this. None of differences below are substantive, but they often are.
By combining similar versions of an instrument into a single template, the common language only shows up once. There's only one template to update and worry about. Even if no one is specifically responsible for it, it is fairly easy to maintain.
The next rule for template development is to use the best of what the word processor offers to get the formatting right. If the document isn't set up correctly, editing just creates bigger problems; and neither you, nor anyone else, will want to use it. On the other hand, if a Word or WordPerfect template is set up properly, editing is effortless. Paragraph numbering, paragraph number cross references, tables of contents and tables of authority all automatically update to reflect changes in the document. Page numbering is always right, page breaks don't separate text awkwardly (headings at the bottom of one page and subsequent paragraphs at the top of the next) and spacing/alignment issues disappear.
Most legal users don't think it's even possible to create complex documents in which the formatting always works perfectly. They're so used to wrestling with their word processor that they believe it is a normal part of the process. I can assure you that it's not. Anyone who finds formatting difficult to control in either Word or WordPerfect should interpret that as evidence that they have more to learn.
Consider Word for example. Once you've mastered styles and section formatting, you will be able to completely control formatting in any document. Unfortunately, nothing about Word's interface discloses this fact or explains how to use styles or control section formatting. Further, simply using Word over time won't help you understand it any better because much of what you need to know is concealed.
Having said all of that, once a template is set up correctly, it just works. Users don't necessarily need to know how it was built in the first place in order to reap the benefits. Back to the cooking analogy, anyone can enjoy a white chocolate chip, macadamia nut cookie (my favorite) without having the first clue about how to bake them.
The cherry on top for complex templates is a drafting guide. A drafting guide lays out the questions and options that must be answered and selected, respectively, in order to get the document you want. It becomes your due-diligence checklist to use when interviewing the client and it further improves the process. Documenting your processes is one of the most important things you can do for your office; and drafting guides are a big part of it.
For example, consider something like the purchase of commercial real estate. From a macro level, there are the individual steps in the transaction. Process documentation means describing the individual steps, who performs them, the tools used and how long they take. From a micro level, document drafting is involved in some of the individual steps (such as drafting the real estate purchase contract). As such, the drafting guide is the documentation of a particular step (which is part of a larger process).
Once you have templates built, you have many, even better options to speed up drafting. For example, you could use your word processor's merge function to complete the documents faster. Both Word and WordPerfect also allow you to create fillable form templates (like a fillable PDF but in the word processor). Case management systems allow you to pull client data into your documents. Finally, you can use document assembly software like HotDocs or The Form Tool to turbocharge the process. However, all of these options require that you first build templates.
Better drafting methods represent the low-hanging fruit for improving the efficiency of almost any law office. If you only want to create templates and possibly upgrade them with merge functions or fillable fields, your cost is zero. It does require an investment of time to get it done; and that's the primary reason so few lawyers have done it. Template building takes commitment. However, the time is quickly recouped and the initiative pays for itself in the form of speed gains. Accuracy improves by eliminating the margin for error inherent in recycling old documents. More importantly, it allows you to capture your intellectual capital in a usable form, share it with others, and improve it over time.