Why don’t law firms don’t make more use of automated-template systems for drafting contracts? I suspect that lawyers’ psychological need for defensive lawyering is right up there with the factors listed in Ken Adams’s blog posting.
Defensive lawyering is a powerful incentive to custom wordsmithing
Lawyers want to do a good job for their clients for its own sake, of course. But they also want to avoid loss of reputation and malpractice claims.
This is a big psychological incentive for defensive lawyering — and I strongly suspect that, in many a lawyer’s mind, no contract template can do as good a job of protecting the lawyer as a document that the lawyer himself has wordsmithed.
Add to that, the economic incentive of hourly billing.
You now have two powerful incentives in favor of custom wordsmithing over document-assembly projects.
The psychology is different when trade associations’ standard forms are available
Commenter Meade Ali points out that in the financial-services industry, lawyers make extensive use of standard contract forms developed by industry associations such as ISDA, SIFMA, and NAESB.
I think the psychological analysis is different here. I suspect that lawyers feel less vulnerable to being criticized when they’re using a form that the client’s own industry group has prepared, reviewed, and encouraged for use.
See also: (list is automatically generated)
Contract review: A final checklist
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Custom wordsmithing and document assembly don’t have to be mutually exclusive. The lawyer can use his or her own words to create a document [template] which is then automated for reuse. The lawyer can also draft his/her own clauses for future versions of that document. By automating documents, there is less need for defensive lawyering, because the lawyers can be assured that they are always using a well-crafted, compliant document.
@Adine, you have a point, but it can be difficult to get lawyers to invest even minimal time in doing what you suggest, possibly because they have a hard time envisioning the eventual payoff.
As my old law firm’s chairman once said, after he and I had lunch with a document-assembly vendor, “This guy is selling woodworking tools, but what I need is furniture.”
Thanks for commenting.
@DCT, I agree it can be tough getting lawyers to invest in template automation. As you note, the ‘billable hour’ provides a huge disincentive. What’s needed is for law firm leadership to take a longer term view. That would give them the freedom to invest the requisite time upfront so that clients obtain a more cost-effective service which still meets the firm’s ROI requirements.