Tuesday, September 21, 2010

Creating Forms by Committee and Consensus

An earlier post—The Fastest Way to Create a Form—describes a process to identify standards using technology to find the most conforming document and the most conforming clauses to quickly establish a baseline and then bring it up to practice standards by supplementing the baseline with missing and divergent clauses.

In other cases, a consensus building approach might be preferred. Working with ABA Model Intellectual Property Task Force, we have proposed an efficient, technology-enabled approach to develop model forms based on a potentially diverse set of documents and a wide range of individual interests.

1. Create the reference set from a source set of documents. In this case kiiac examined 105 Intellectual Property Security Agreements. (If you are interested in viewing the set, please send me an email and I will provide you with access credentials).

2. Provide an overview of the process. John Murdock, partner at Bradley Arant, created a YouTube video explaining the goals of the project and how the group can achieve consensus and develop the model form. John created the video in PowerPoint and rendered it with Moyea PPT to Video Converter. (FYI: A good resource for ideas about putting PPT content on the web is: http://www.dvd-ppt-slideshow.com/ppt-to-dvd-tips/put-powerpoint-on-web.html.)

3. Gather feedback on drafting options. The consensus building approach needs to work both during in-person meetings (that may take occur twice a year) and between such dates. In order to move the process along more efficiently, the key drafting choices are identified and the group’s opinions gathered through a Survey Monkey.

The approach to identifying the drafting questions used the technology to examine where consensus exists and where there is a range of opinions. One of the goals of the MIPSA project is brevity. While it would be easy to use the technology to identify all possible variants and string together a comprehensive lists, the group determined to use the process to streamline and clarify contract language.

Where kiiac finds that all documents contain a particular provision, it is considered required. But where a particular provision is found in the some, but not all agreements, it is considered optional or deal specific. The group is then asked whether it should be included in the model. For example, 100% of the grant clauses contain a grant of a security interest, while a smaller percentage include language to “assign,” “pledge,” or “hypothecate” the collateral. Here is a screen shot of the Survey Monkey.

The first step to create a model for the grant clause will run through December. I’ll report back on the results and level of participation.

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