Are Your Precedents Flexible or Fragile?

4-minute read, 10-minute exercise

#Flexibility #HumanIntelligence

What happens when you need to make changes to your precedent documents? Are they capable of handling changes or are they easily flawed?

We’ve all been there. We’ve all had great a great document that we’d spent hours drafting for a complex matter and the result was beautiful. And then another matter comes along, and we decide to use the document from the first matter as a base for the document for the new matter. A little finding and replacing names here and there; it looks good. Then we go too far by copying and pasting a useful clause from another document.

You’ve gone too far and can never go back

Now is the moment of dread. You urgently go for the undo button but it JUST. WON’T. WORK. There’s no easy way to say it, so here goes. Your beautiful document is fragile. That’s not good for you or your practice.

Fragile precedent documents cost you time and income. You’ll invariably need to fix a document as soon as possible and do it just when you’re due to do something important. That takes away precious time from important tasks and means you need to spend more time catching up with the tasks that generate income for your practice. And, well, stress.

You deserve to work with flexible documents

So, while it may seem like developing your precedent documents is wasting time when you could be doing something to generate income for your practice, it is a long term investment to save future problems.

Make sure you draft your precedent documents and the optional clauses in one style. So, if your precedent document is drafted from the perspective of one party speaking to another (e.g. You/We) or with parties as equals (Party Name/Party Name), make sure you also draft optional clauses in the same style. Adding clauses and having You, We, Us, Our, My, Party Name, His or Her all the same document is just confusing.

Use one numbering style. Please. If you really have to use a different numbering style for the Background, keep the second style to the Background. Doing so will help with preventing formatting errors if you add clauses from other documents. If you need to build a bespoke document with clauses from other documents, get into the habit of copying the clauses and pasting them as plain text. Then you can apply the correct formatting.

Consistently use terms that are easily updated and independently defined. Search for multiple terms such as ‘Commencement Date’ and ‘Start Date’ and update them to just the one term. Then check that the definition can be read independently from the rest of the document. For example, the definition of ‘Term’ should be a specific period rather than ‘the period between the Starting Date and the Ending Date’. Doing this means that the term and the clauses that use it continue to make sense if the document you’re working on doesn’t have a defined Ending Date.

Be consistent with the functions of clauses so you can trust that when you refer to that function in another clause, you know what it means. For example, make sure that your dispute resolution clause includes exactly what you would like the parties to do whenever a dispute arises. Then you won’t need to have different functions relating to dispute resolution across different clauses. If a clause calls for resolving a dispute, refer to the dispute resolution clause. One function per clause. It also means that when you add and change other clauses, you won’t need to keep checking that the document includes everything that’s needed to make a dispute resolution function work.

Drafting flexibility into your precedent documents means that they’ll be strong enough to handle the changes you need to make. And you won’t be wasting your time fixing them over and over again.

Start with a small change now

Open one of your most commonly used precedent documents and make a copy. Then you can work on the copy until you have it just how you’d like it.

Think about all the times that you’ve used this precedent and had to fix the drafting or formatting after making changes. What do you find that you are always changing? Is it certain definitions? Is it how the document refers to the parties? Whatever it is, that’s what you’ll work on now.

Think about how you’d like to fix it. Now spend the next 10-minutes fixing it in this precedent and across the optional clauses that you use for this precedent. Better still, make a note at the top of the document for future authors that if they include other clauses in this document about xx, then they need to update xx.

Now schedule an hour in your calendar each week for the next four weeks. Use this time to draft more flexibility into that document before replacing the version that you regularly use. You’ll save time, and before you know it, you’ll be able to go home at the end of a busy day knowing that you can trust and rely on your flexible precedent documents to do what they were designed to do.

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