It’s Time for a Change: Better Drafting Methods for Drafting Complex Documents

by Affinity Consulting Group on April 24, 2018

By Barron K. Henley

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 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.

Fourth, it’s common to leave something in which should have been removed.

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.  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).

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.  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.  It’s never anyone’s job to make that happen, so it just doesn’t happen.  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.

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.

Better drafting methods represent the low-hanging fruit for improving the efficiency of almost any law office.  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.




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