P R O B A T E   &   P R O P E R T Y
September/October 2005
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Technology - Property  

Technology Property Editor: Gerald J. Hoenig, 8495 Caney Creek Landing, Alpharetta, GA 30005, ghoenig@mindspring.com.

Technology—Property provides information on current technology and microcomputer software of interest in the real property area. The editors of Probate & Property welcome information and suggestions from readers.


Membership Survey Results on Document Drafting Technology

The magazine’s technology editors created and completed an initial survey of the entire Real Property, Probate & Trust Law Section (RPPT) membership on members use of document drafting technology. This column will provide an overview of the survey results, which will be discussed in more detail in the magazine’s next technology column. The editors intend to conduct and report on additional surveys in future magazine editions. The purpose of these surveys is to inform RPTE membersof the technology other RPTE membersuse.

The 2.8% response rate to this initial survey broke the RPPT’s response record by a wide margin. Although this rate is significantly lower than the 13.7% response rate of the 2004/2005 legal technology survey conducted by the American Bar Association’s Legal Technology Resource Center (LTRC), it should be noted that LTRC surveys only a fraction of the ABA’s membership. RPPT surveyed all of its members, and the 2.8% response compares favorably to the LTRC response as a percentage of the total ABA membership.

The survey contained 18 questions, and the first six elicited information about those taking the survey to aid in the analysis of the survey results. The first six questions asked for date of birth, date the practice of law commenced, gender, location of office by city, whether the individual is currently practicing law, and the size of the law firm or law department. These results show that 96% of the respondents are currently practicing law. Seventy-five percent of the respondents who answered the gender question were male. Forty-nine percent of the respondents were in law firms or law departments of 1 to 4 lawyers. Eighteen percent were from legal organizations of more than 50 lawyers and 6% were in organizations exceeding 300 lawyers.

The following chart shows the approximate percentage of the respondents who were born in each of the decades from the 1930s through the 1980s.

Question 7 called for the word processing software used for drafting documents. Fifty-seven percent said they used Microsoft Word exclusively, 19% said they used WordPerfect exclusively, and 24% said they used both Word and WordPerfect. It is important to note that this means Word is used by 81% of respondents. Seventeen individuals reported using other products. Six of these actually use Word or WordPerfect, but answered “other” to explain their particular use. One respondent indicated no software was used. Perhaps that person still uses only a typewriter or pen and paper. Not surprisingly, the greatest use of the less expensive WordPerfect program is at smaller firms. Solo practitioners had the greatest percentage for the exclusive use of WordPerfect at 31.3% (with another 26.4% using both Word and WordPerfect). At the other end of the spectrum, of the 98 individuals who responded to this question from legal organizations with more than 100 lawyers, only one individual reported using WordPerfect exclusively and seven said they used both Word and WordPerfect.

Question 8 asked the respondent to indicate who in the organization actually typed the documents being drafted, with an instruction to select all that apply. The results are shown in the following table.

It is interesting to note that 84% of lawyers are typing (or should we say word processing) their own documents to some degree. Since those taking the survey were asked to include all applicable categories, this might not be too surprising, because many lawyers may be doing limited editing and relying on others to do the heavy word processing work. It may come as a surprise to many that the largest legal organizations have the highest percentage of lawyers doing their own typing. All 20 of the lawyers responding from firms or law departments with more than 500 lawyers (including 11 with more than 1,000 lawyers) say that they type documents, and all but one of them also say that their secretaries type their documents as well. After this category, the group with the largest percentage of lawyer typists (at 91%) is solo practitioners. The percentage generally declines to 79% as the size of organizations get larger until the larger-than-500-lawyer category is reached. Half of those who responded “other” indicated they themselves or another lawyer did at least some of the typing. The high percentage of typing by solo practitioners was not surprising to this editor, who has spoken to quite a few over the past few years whose use of technology allows them to practice law without the expense of secretaries or assistants.

Question 10 addressed the drafting method used by those surveyed. Again the respondent was asked to select all that apply, because lawyers might use different approaches depending on the circumstances. The basic results are shown in the following table.

Almost all lawyers mark up documents previously used. They get the benefit of the thinking that went into the drafting of the prior document, and they do not have to write an entire document from scratch. One concern, of course, is that the prior document may have included or excluded material based on negotiations or unique facts of a prior transaction. One must have an excellent knowledge of a standard or model form to ensure that inappropriate additions or omissions are not carried over to a new transaction. For example, one of the carve outs to the exculpatory provision in a mortgage note may have been deleted or significantly modified because of unique facts of a certain transaction or because of the negotiating position of a highly regarded borrower. If a later user marks up that mortgage note, he or she might inappropriately carry over the change to the normal carve outs unless he or she is familiar with normal carve-out language and has the time to carefully consider that provision as well as the other areas of the mortgage note that might vary from standard language because of negotiated or fact-based changes.

A close second in drafting method is marking up a standard form. Here the lawyers get the benefit of the thinking that went into preparing the standard form, and they also do not have to write an entire document from scratch. They do, however, miss the benefit of using a well-selected precedent document from a very similar transaction. For example, the firm may have a standard form for a commercial mortgage for a permanent loan. If the new transaction is a loan to be secured by a first mortgage on a full-service hotel in a downtown location, marking up the standard form will not have the benefit of the thinking that went into drafting a mortgage on a prior deal on a full-service hotel in a downtown location. Of course, the person drafting the mortgage will avoid the downside of missing negotiated or inappropriate fact-based changes in the prior document. Obviously there are positives and negatives to each approach. Standard forms are sometimes annotated to indicate the changes that should be made for different circumstances, but the quality control provided by extensive annotations can significantly slow down the document drafting. This issue may be the subject of a future survey and column.

Eighty-one percent use the “start-from-scratch” approach. One would expect this to be limited to the occasional document that is both too small and unique to justify the use of a standard form or precedent document. It seems unlikely lawyers are drafting lengthy documents from scratch other than in the rare circumstance when a document is so unique that neither a useful precedent document nor a standard form is available.

Fifty percent of all respondents use automated templates. That is probably a large increase from 10 years ago and even as recently as five years ago. It appears that more lawyers are recognizing the quality control and productivity gains that are available from automated templates. In fact, such templates can provide all the benefits of the highly annotated type of form mentioned above without the drawback of significantly increasing the drafting time, because a well-designed automated template will reduce to a fraction the drafting time required to mark up either a precedent document or an annotated standard form.

Less than half of the respondents dictate documents for transcription. Twenty years ago that percentage was probably much higher. The declining use of recorded dictation is not surprising to those lawyers who can keyboard and have experienced the efficiency of bypassing the delays and inaccuracies of the transcription process. The ever-increasing expectations of clients for fast turnaround of legal work may mean that keyboarding ability is becoming an increasingly important competitive edge. Does this trend mean that lawyer keyboarding eventually will become the standard operating procedure?

Fourteen respondents answered “other” for the drafting method. All of these respondents use variations on the other categories. One worth noting from a technology standpoint is the use of voice recognition software to dictate and have the computer automatically convert the dictation to a typed document. Three respondents use such software, indicating the failure of voice recognition software to gain wide acceptance.

It is interesting to view the differences in drafting approach used by the size category of the legal organization. In every size category, at least 90% of the lawyers mark up previously drafted documents. One hundred percent of respondents from organizations with more than 100 lawyers use this method, and nearly 100% of such respondents mark up standard forms. Also, in a couple of categories (9 to 14 and 51 to 100 lawyers) the percentage marking up standard forms falls slightly below 90%. The category with the largest use of the “start-from-scratch” method is 5 to 8 lawyers at 92%, and the category with the smallest percentage is organizations with more than 1,000 lawyers at 73%. By a large margin, the smallest use of dictation is by solo practitioners at 22% and the largest use, again by a wide margin, is organizations with 500 to 1,000 lawyers at 89%. Interestingly, if there are more than 1,000 lawyers, the percentage drops to 55%.

The organizations using automated templates the most are those having 150 to 300 lawyers at 58%, followed by solo practitioners at 55%. The lowest use of automated templates is by the category with 500 to 1,000 lawyers at 22% (although the organizations of more than 1,000 lawyers are at 46%).

The balance of the survey questions and additional cross tabulations will be discussed in the November/December “Technology—Probate” column.