We all know the most inefficient method: ask attorneys for their best samples and form a committee to review the documents. Virtually all firms have tried this approach: all with same result.
Now, with aid of technology, there are much more efficient methods that can produce a model document in days; sometimes hours.
1. Search the document management or file system for the desired document type. Vetting or editorial review is not required. The software should identify the required documents and parse the clauses to identify the core, non-negotiated language.
2. Analyze the set of documents and
· capture the document outline, indentifying the frequency of each provision;
· capture a library of clauses for each provision, identifying language consistency
3. Find the most conforming document. This is the document that contains all common terms and the most standard clause language. Most importantly, it will have been drafted so that all its clauses and defined terms work together. It is also useful to confirm that this model is also widely used at the firm (i.e. are there a number of similar documents). If so, it is not only the most conforming document, but also the de facto standard.
4. Find the clauses in the most conforming document that might be missing. These are the clauses that occur frequently in the document set, but are absent from the most conforming document. Determine whether to add the most conforming clause from the clause library or another clause example, if desired.
5. Find the clauses in the most conforming document that diverge from the standard core language. These are the clauses that may be missing some standard language or may contain deal-specific language. Determine whether to replace these clauses with the most conforming clauses or another clause example, if desired.
In a recent application of this approach, one top-level clause was indentified as missing and four clauses were identified as divergent. The lawyer review process to create the model form took 45 minutes.
It appears to be a premise of this approach wide spread and consistent use of a clause indicates appropriateness. In my humble experience that is not a good working assumption. Also it does not appear to contain a step that weeds out unnecessary language.
ReplyDeleteI agree there are many steps to standardization. I'll try a post a more detailed workflow in the next few weeks.
ReplyDeleteThe first step must be conformity. As you suggest, conformity may not always be indicative of the best. However, I generally defer to the wisdom of the crowd. It is also a comfort that it is the practice norm and will likely protect against malpractice.
From the most conforming document, we can now drill into the language details. In some cases variable language may be inserted and in others unnecessary language removed. In my opinion, we can only get to the refinement stage once we have paired the universe down to a manageable set of standard and alternative terms and provisions and know what is shared and what is different. Absent of such tools you may have a stack of, for example, 250 merger agreements each 75 pages long for a total of 18,750 pages and, yes, the good language is in there—the trouble is finding it.