A lawyer’s use of templates and precedents is often mocked.
“All you do is copy and paste from the other agreements.”
“You just use a previous application and change a few things only what?”
“Quite fast right? You only have to tweak your own template.”Anonymous members of the public
Those are the common run of remarks we hear. I would have thought that anybody with a semblance of sense and self-awareness would refrain from disparaging the work and dignity of the person whose career has been devoted to doing that work while negotiating to hire them to do that very work. But that, perhaps, is too much to ask of some.
I suspect those that do not appreciate the value of being legally informed and aware have the following thought: Why should I have to pay you just to modify a precedent to fit my agreement which is such a simple, easy and a quick matter for you? These sort tend to believe drafting a contract is simply changing the names, IC numbers, addresses, and transaction details in a Word document template, and voila, the agreement is done. This is a caricatured impression of what lawyers do. Regrettably, there are lawyers that do just that.
But the caricature is a warning how templates should not be used. The caricature shows the abuse of a template. It exemplifies an unthinking and careless approach to the use of templates. If someone paid nothing for such work, it would still be too much. A poorly drafted agreement or application is not just wasteful, it is harmful to the client. Their interests are not protected and there may be provisions that harm their interests.
A precedent, template, a previous draft is not the penultimate point. For convenience, I’ll just use ‘template’ to refer to all three. A template is not even the starting point.
A lawyer stands in relation to his template as a sculptor stands in relation to her sculpting block.
Like a sculptor choosing a suitable material to work with, a lawyer must first choose the appropriate template from which to work. A share sale agreement is not the same as a shareholders agreement. We cannot use one in place of the other. And it is best not to start one using the other.
A lawyer would choose a template which has the structure and terms that he can best build from. Such a template would have many of the relevant material terms that we want. A sculptor is able to choose a suitable material because of her learning of the materials and experience with them. Similarly, a lawyer is better placed to choose the appropriate template to work from because he knows the law, possess industry practice and previous experience.
Non-lawyers generally lack these qualities. Their biggest problem is not knowing what should be in or out in protecting their legal and commercial interests. With a draft, they only work with what is there.
I once had a client come and see me for a consultation over a tenancy. He had a workshop that he wanted to rent out together with some equipment. That workshop took up part of the space in a shop. After listening to him, I advised him about the proposed tenancy agreement, and what that would look like. At the end of it, he pulled out a draft he had printed out and showed it to me.
“Maybe you want to see if this is useful,” he said as he handed over the five-pager. “I found some terms from hotels and others on the internet, which I thought were relevant.”
“Yeah, I think it’s interesting how these clauses work. I had to read a few of those tenancy agreements online,” he went on as I scanned and skimmed the five pages, half-listening.
Imagine you have a three-year-old child showing you a crayon drawing of a stick man. It’s cute and decent for his level but it won’t make the cut. To me, his draft was the equivalent of the three-year old drawing of a stick man. But that’s not his fault. In fact, it is understandable. The law is not his job. He could not distinguish that terms for a hotel room were not the best starting point for crafting a tenancy for his workshop.
So choosing a template is one thing, finding an appropriate one another. And even if a lay person chooses the correct template, they do not know whether it is enough to protect their interests. They cannot appreciate what is missing from the template and should be included. They cannot appreciate drafting issues that have legal implications. They do not have the benefit of case law and legal briefs to learn from to avoid common pitfalls of using template documents.
As the sculptor chisels form out of a featureless marble block, lawyers too are chiseling away at their template. With each new clause added, each paragraph revised, each irrelevant phrase removed, word-by-word, line-by-line, we chisel the form of the proposed draft of our client’s agreement into existence. We are carving out the agreement from that block of words as surely as a sculptor uses a hammer and chisel to work the marble.
Before that, it was just a jumble of verbal words exchanged, correspondence about the agreement, and ideas in heads. We coalesce all of that into a tangible document with clinical and forensic precision that would be the basis of the signatories’ relationship.
Templates, properly used are a lawyer’s tool, not an escape or an excuse. Templates exist because much that we do is the same in the general but different in the particular. We have been for hundreds of years buying houses, shares, setting up companies, selling things, etc. There already are agreements for all kinds of transactions. But each transaction is the same as it is different. For the most part, there is no need to reinvent the wheel.
I’d like to think templates are a reminder that as humans we have more in common than we differ. The things that we do or hope to do are not vastly different from what our recent ancestors did. And in that way these templates facilitate the legal arrangements for the continued activity of humankind.