General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 2
March 2000




Work product retrieval has always been the Holy Grail of legal drafting. Although there are enterprisewide work product retrieval systems, most are only marginally successful. The reason is simple: Full-text search mechanisms often fail because the salient feature of a document may not be reflected in searchable "magic words." Worse, the legal significance of a document may be the absence of a provision, not its presence-such as a lease without sublease rights. This means the only really useful work product retrieval systems are those where the stored documents have been summarized and categorized for their substantive significance. By keeping your objectives modest and your focus narrow, there are systems that not only can help you find the last document but can make it easy to produce the next one. All are based on proven, relatively inexpensive technologies you may already have.

The basic tools of legal drafting-word processing, document management, and text assembly-have changed little over the last decade. So why isn't document automation as pervasive as word processing itself? Mostly because it's hard to know when to stop. The available tools support limitless customization. The art is to find the solution that meets your objectives, then quit when you've achieved it, remembering that the goal is professional efficiency.

A Three-Level Search for the Perfect Solution. Document automation is a continuum that starts with sample documents and ends with fully integrated compliance systems. Wherever you find your practice on the continuum, the goal is to establish and maintain your solution as the sole repository for all text-based knowledge within your target.

Level I: Institutionalizing the Art of Creative Plagiarization. Finding and editing the last, most similar document may not seem like a "system." If it's properly organized and executed, though, you may be able to end your solution search right there. To make this simplest of approaches work, there are three things you'll need to do: Keep all useful documents and clauses (even those obtained from other sources) in a single, electronic format accessible to all professionals in your practice group; categorize those models within your practice area; and stick to it.

The first requirement is the most difficult to achieve. Studies have proven we now generate more paper, not less, than we did before word processing. Paper remains the absolute standard of execution and enforceability. But when it comes to document management, the tradition of a paper-based form bank or filing system simply doesn't fill the bill. The greatest challenge is tracking models you obtain externally. Your best sources may come from opposing counsel or from public documents-on paper or in a variety of electronic formats other than the one you use. In some practices, this time-honored form of larceny is not only sanctioned but preferred; the lawyer who drafts his or her own risk factor when an SEC-approved prospectus contains a perfect model is doing the client a disservice. To make these drafting gems useful as future examples, however, you need to capture them in your word processor when you first see them. If you receive a document electronically but in a different format from the one you use, your word processor probably can convert it. When you find something useful on the Internet or in a commercial text service, cut and paste the applicable text. If you have only hard copy, scan it or have it retyped. Beyond spelling errors, don't spend time cleaning it up. The goal is to preserve its legal value, not its formatting.

The second requirement is not as daunting as it sounds, as long as you keep your objectives modest. It may be as simple as a consistent naming convention for your files and folders. Most word processors contain summary functions that help users capture basic objective information and write a brief description of the document. You can raise the ante, and the potential utility, by using a third-party document management system. Whatever your approach, limit your scope to your specific practice area and the professionals within your practice group.

The final requirement is where most document management systems break down. A solution that is perceived as incomplete or out of date can be worse than none at all. With a tight focus, the practitioners within the practice group will see quickly the value of your system and will become willing participants in the process.

Level II: The Template Ap-proach. If your practice focuses on generating variations on the same or related documents, you may want to set up to a solution that actually assembles documents customized to your transaction. In its simplest expression, these systems collect the objective facts once for all uses and allow you to select the clauses you want included. The more elaborate templates reduce the process to a logical dialog of options and alternatives (each question driven by the choices you already have made) and produce high-level, syntactically correct drafts.

The mechanisms for this approach already exist in most word processing applications. You can create templates with variables to create a document. This works well for the traditional "mail merge" application (creating form letters customized to the recipient), but you'll quickly outgrow the native word processor functionality in a legal document system. Third-party products are available that install directly into your word processing application and greatly increase the template functionality. However, template solutions are only as good as the legal work that goes into them. The biggest risk is working off a single, client-specific document set rather than conceiving of the transaction in generic terms. The best systems start with master forms that reflect all the likely variables, options, and alternatives collected from multiple documents and sources.

Again, restraint is the key to success. A template solution can be nothing more than a clause selection system-a place to organize and collect useful paragraphs and present them as choices to the drafter. Remember that the objective is to trigger the legal possibilities and create an advanced draft.

Level III: The Full Monty. For some practices, the sophistication of the documents within a clearly defined scope justifies a fully customized and integrated solution. In these cases, all the drafting knowledge, analyses, and text are reflected in a proprietary system. The documents are only the result.

This approach is most easily described by case study. A company has several hundred lawyers in its legal departments, but a group of six lawyers and three legal assistants has sole responsibility for documenting particular loans it makes to its distributors. The group completes more than 1,000 transactions each year. While all the documents are generated centrally, each has to meet state requirements where the loan is being made. In most cases, the documents are reviewed by local counsel, whose substantive comments are reflected back in the system for the next transaction in that state. The data collection process is remarkably straightforward; the system may be making hundreds of decisions based on a single fact, such as the state where the underlying property is located. All the resulting documents ultimately are created in a word processor. They are reviewed and edited to reflect negotiated terms. But any issue determinable from the facts provided is corrected in the underlying system. If the loan is later amended or renewed, the updated documents are generated from the original data set.

You Built It-Now Exploit It. Even if you establish a solution for your practice group, you need to "market" its virtues to your colleagues and your clients. In some cases, the system itself may be the client deliverable. A commercial client may not be able to justify the cost of having you document its most repetitive transactions. But paying you to design and maintain a system that reflects your knowledge and experience may be the best investment it can make.

One emerging technology is worth watching. With rare exception, your client is in the best position to provide the objective facts for a drafting engagement and resents the time and expense of conveying those facts to you. Future document automation tools will let your clients input and transmit that information over proprietary intranets. You then make the appropriate legal decisions and generate the documents, which can be sent for review over the same site.

Norv Brasch is president of Jurisystems Corporation, a Denver-based consulting and development firm specializing in compliance systems for the legal and financial industries.

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