Thursday, February 10, 2011

Step 5. Generate—Base Document and Clause Alternates

(a) Select Base Document(s)

Task: Identify the base document or documents upon which to build a standard form.

A highly conforming base document is typically selected as a starting point for a new form because all of its clauses and definitions will have been drafted to work together, thereby eliminating additional work to conform language if the clauses were selected from different source documents. This document is also analyzed to assess whether it also represents a de facto standard, based on whether it is widely used by different lawyers and offices (i.e. there are a number of similarly constructed documents).

If a de facto standard base document is not found (which is rare), further research may be conducted to determine if there are multiple base documents (perhaps used for different types of transactions or in different jurisdictions). Alternatively, the review team may determine to standardized on one source document, not necessarily the most conforming, or to standardize on a published form (such as an ABA model form).

Review Tools for Document Organization
Online document review (select Source Document List from View menu):

(b) Choose Clause Alternates

Task: Determine the standard and alternative clauses that will available in the new form.

  • Missing Clauses: Identify the clauses in the most conforming document that might be missing from the standard established by all source documents. These are clauses that occur frequently in the document set, but are absent in the most conforming document. Determine whether to add the most conforming clause from the clause library or different clause example, if desired.
  • Divergent Clauses: Identify the clauses in the most conforming document that diverge from the standard core language established by all source documents. 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.
  • Weighted Clauses: Optionally identify additional clauses from documents drafted in favor of one party. This process can be quickly performed by finding “marker” clauses indicating pro-buyer or pro-seller situations. For example, an “as-is” warranty will likely reflect a pro-seller document. All clauses in this document can then be tagged as pro-seller and selected for output in the initial form document.

Review Tools for Clause Selection

  • Online document assembly template
  • Microsoft Word document containing most conforming document clauses and the selected alternative clauses, displaying information why such clause was selected (e.g. pro-buyer)

(c) Assemble Initial Form Document

Task: Create an initial form document for attorney editing, containing the clauses from the base document, missing clauses, and alternate clauses.

Select clauses for inclusion in the initial form and assemble the document. By default, the document will contain embedded links to the clause libraries.

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