10 October 2007

Form Follows Function

Raymond Ward posted recently on a topic that's near and dear to my Grinch-sized heart -- legal document forms. Personally, I think that to treat form documents and templates as either necessary evils or perils to be avoided is misguided; such forms and templates are necessities and opportunities to be embraced.

Notwithstanding, there are two great truths in this area: First, if you borrow documents wholly or substantially from another attorney, you must recognize that while such documents may or may not be the right fit for that other attorney's client, they are almost certainly not the right fit as-is for yours. Second, a document which "fits", whether you drafted it yourself or modified it from someone else's preexisting document, will not fit you well indefinitely.

Over the last couple of years, Ward has backed away from his earlier suggestion that you "burn your form file"; citing a post from Roy Jacobsen, he suggests that an expiration date on each form might be a better approach. Jacobsen writes:
Boilerplate is a great time-saver, and it helps ensure that you include all of the elements that you need in a document.

. . . .

There’s a problem with boilerplate, though. All to often, it just gets passed along from year to year, and nobody asks whether it’s written well, whether it conveys the message well, or even whether it conveys the right message to begin with.

. . . .

Go ahead and use boilerplate. Take the time to write it well, and it will serve you well. But put an expiration date on all of your boilerplate. When it reaches that date, stop using it. Take a long hard look at it and ask yourself if it needs cleaning up or revising. And maybe you’ll decide that you should toss it in the dustbin and start fresh.

What an expiration date really is is a prompt to reevaluate your wardrobe of document templates to make sure that each one is still in style and still fits. Just as you don't want your parachute pants from the 80s or your jeans from three waist sizes back cluttering your closet, you don't want your document forms to address a need your client no longer has or to address a current need in obsolete terms.

Offering such sage advice, perhaps it's high time for Ward and Jacobsen to start regularly hosting a legal documents version of What Not to Wear!

1 comment:

Listless said...

The better approach, in my experience, is to have one "master" form provision (say, behind a tab in a binder) and then a series of redlines right behind it representing every modification you've ever made to the stock language to fit a deal. And when you think of language which works better for your deals as a whole, swap out the "master" language and rerun the blacklines. This keeps you continually up-to-date (without having to worry about expiration dates) and gives you a convenient (and quickly built) library of form language to meet even the most obscure of situations.