Same old same old

Here’s a lawyer secret: we recycle our documents. Over and over and over. We even have a fancy word for it – “precedent.” For the most part, the use of precedent is efficient and benefits the client. Few would want to pay for their agreements to be drafted from scratch, when a document from a similar transaction could be adapted.

The use of precedent has some real problems, though.

The first problem is that precedent documents, unless carefully reviewed from time to time, tend to propagate errors. I was recently working on a standard agreement required by the Health Insurance Portability and Accountability Act – the legendary “HIPAA.” (Yes, my work can be that sexy.) Several definitions in the agreement referenced a section of the Federal Regulations. Problem was, when I looked up that section, these definitions were not there. Poking around online, every similar HIPAA agreement that I found contained exactly the same error.

Doing a bit of legal epidemiology, I have identified what I believe to be “Patient Zero” – the government’s very own sample HIPAA agreement. I’m betting that a lot of attorneys cribbed the government’s sample form (which seems like a reasonable idea, after all), and most existing precedent is based directly or indirectly on it. As a result, this small error has been almost universally replicated. Going directly to the government regulations, I was able to easily find the correct section reference.

This example is a small error, but you can imagine that once in a while it might really matter.

The second problem with precedent is that it tends to get bloated. Nobody ever wants to take any language out of the precedent – they figure it’s there for a reason, and who wants to spend the time figuring it out? – but everyone adds a little new language to address some specific point in their deal. The result: it’s not unusual to see agreements that run 40, 50 pages or more.

I don’t care how complex your transaction is, I don’t think a 50-page agreement is any better than a 20 page one. In all likelihood, it’s worse: it’s probably got lots of mistakes, they’re harder to find, and no one in their right mind — especially the client — wants to read it.

My view is that we lawyers have to take responsibility for this. Ultimately, streamlining documents will benefit everyone.  Lawyers will make fewer mistakes, and they will generate clearer documents that their clients will actually read and can actually understand.

Going back to the example I began with, the reason I was able to find the error was that the document was only 4 pages. You can carefully review a document this size in a reasonable period of time.

I recently embarked upon a project to tame the 3 or 4 full pages of language that is in every LLC agreement, just for tax issues. There was so much unnecessary detail (which not even the non-tax lawyers understand), I was able to cut it down to one page without sacrificing clarity.

Lawyers pride themselves on being masters of language, yet we are constantly finding more complicated and lengthy ways to say simple things. I recently reviewed some language my client had drafted himself, and I was struck by its simplicity and directness. These are habits that attorneys have to rediscover.


Categorised as: Lawyering