Theo is a Product Manager at Litera. He has spent the past 4 years working in legal technology focusing on how lawyers work within the document lifecycle, mostly focusing on [the review and collaboration of document drafting]. Before that he studied postgraduate law at University College London and the University of Oxford.
Why lawyers reuse content
When a client instructs a lawyer, it's almost as if they see them sitting down and drafting everything from first principles. The reality of modern drafting is that a lot of the upfront work has already been done. Provisions which cover the most relevant and up-to-date law already exists and may only need small variations in order to fit the matter at hand. Where the lawyer’s expertise really comes into play is in adapting provisions to novel situations and making sure that the building blocks of the document fit and flow in an ordered, logical, and understandable way.
The value of this is that lawyers don't need to spend the amount of time it would take to draft everything from first principles. By intelligently using content that has already been drafted the task can be expedited and, depending upon the fee arrangement between the client and the lawyer, the law firm makes a better return on a fixed fee arrangement, or clients are billed fewer hours.
Copying from a saved Word document
Copying clauses from a saved Word document to the current document seems, at first glance, like a logical thing to do. It's written in the same software program, it looks similar visually, and reformatting seems easy. If everything was drafted and saved in the house style, many of these issues will be mitigated. However, lawyers will gather preferred language from a wide variety of sources, and not all of these originate within the firm’s house style.
The style of a copied clause may be completely at odds with the style of the document that is currently being drafted.
Copying from email
Word and Outlook are the lifeblood of any lawyer’s practice. It means you will find lawyers repurposing both programs to try and perform functions they weren’t designed for.
There are three main ways that a lawyer will use Outlook in order to retrieve drafting contents from past years:
- Using the email drafts feature as a notepad and saving it;
- Sending an email with the preferred language to themselves; and
- Using an email containing drafting language that was received in the past and storing that for future use.
Depending on the lawyer’s email formatting settings, the email may be sent with styles and numbering or it may be sent as plain text. Each method can insert into documents differently and have a different variety of special paste options.
Using an older document
Amongst the multiple strategies available for finding preferred content and then creating a polished document is reusing older documents, a habit that knowledge management teams try to stifle, but simply doesn't seem to be going away.
Lawyers will delete everything other than one exact clause or section and start drafting afresh.
Documents will contain miscellaneous provisions which tend to be roughly similar from agreement to agreement. It's these provisions that can contain minor variations of proper nouns and case specific content, or placeholders that haven’t yet been filled (usually if repurposing a draft or a precedent document).
Even if all of the substantive content matches the matter that the lawyer is trying to draft, there is still formatting and behind-the-scenes information that can be carried across. Document metadata is rarely checked for, and not many people are aware that you can check Word’s options to find the editing time and author name.
More than just the document metadata itself, even style names can point to a particular drafter, and it is all too common to see somebody using a style which clearly refers to another law firm’s internal style guide.
The way forward
Education is always a factor in ensuring that firm documents look pristine as well as contain immaculate, substantive language. This is a process, and as those engaged in the training of lawyers may tell you, this has been ongoing for years and will continue for years to come.
The competitive advantage in this field is the fact that we know exactly where these issues are initially occurring. Microsoft Word. If a technology platform is introducing these potential errors and risks into somebody's work output, then it makes sense to rely on technology to remove these issues as well.
Contract Companion will search documents for leftover placeholders and specific content that needs to be removed before continuing with the drafting process.
DocXtools and DocXtools Companion mitigate the issues of incompatible styles, numbering patterns, and even document corruption.
Metadact strips away metadata that can lead to risk and difficult conversations.
And finally, Clause Companion, our newest product, cuts straight to the issue itself by ensuring that the clauses lawyers save are always able to be drawn back into Microsoft Word and the document being drafted in the correct style, structure, and appearance.
We talked more about Clause Companion with our VP of Product in our Spotlight on Clause Companion webinar on the 8th of May. To view a recording or find out more, click here.