“Artisan — a person or company that makes a high-quality or distinctive product in small quantities, usually by hand or using traditional methods.”
Early in my practice, I found myself in need of a generic clause for use in a contract and reached out to my colleagues for samples. While grateful for the many responses, I was astonished at the diversity of language for addressing what was a pretty straightforward task.
While several of the samples clearly came from the same “parent”, no two clauses were exactly alike. In discussing this observation with colleagues, the conversation quickly turned to each colleague promoting the merits of their particular clause. Listening to this conversation, it struck me that legal drafting is largely an “artisan craft” — we each approach drafting with our own style, predilections, and experiences, and often think our work product is better than the rest. This artisanship observation stuck with me over the years, but it was only recently that I began to think about its negative impact on our clients and legal system.
As the world has gone global in reach and digital in form, other industries and professions have gravitated towards standards to speed up processes and transactions, lower costs and improve customer understanding. Yet the legal profession seems to have quietly watch these standardization efforts pass us by. In unique deals or circumstances, legal drafting definitely needs to be precise and specific and a good drafter is often worth their weight in gold. But for “boilerplate” provisions and standard legal language or legal forms, is there still a need for legal artisanship and its associated costs?
Unnecessary artisanship increases legal fees as each “artisan” takes the time to craft their preferred version of a given clause, language or form, not to mention the time it takes for lawyers to negotiate the differences between their personally preferred versions. It also leads to inconsistencies within a given law firm’s or legal department’s work product without any thought being given to whether the differences are needed or advisable. For consumers and clients, it can be confusing, as they can’t easily compare competing offers when warranty language, license rights or the like are all so different. Moreover, small differences in language often end up in court to determine the impact of having changed as little as two or three words.
Finally, the lack of standardization inhibits the creation a host of new technologies for contracts and their enforcement. For example, digital images with embedded license grants that will only render on a website or device if the appropriate, universally recognizable license grant is embedded with the image.
Other industries have realized the benefits of some language standardization in their fields. The closest analogy for lawyers is the shipping industry and its use of “Incoterms” to set forth basic shipping terms that buyers and sellers of goods can select from to establish transportation costs and responsibilities between them (e.g., “FOB”, “FAS” or “DDP”). Use of Incoterms accomplishes a host of positive results: (1) it speeds up the transaction as the parties have a common set of universally recognized terms from which to choose; (2) a party can quickly compare the terms of two competing offers; and (3) case law and certainty develops around the standardized terms that then limits the potential for subsequent disputes.
In a time that lawyers are trying to become more efficient and accomplish more with less, the voluntary use by lawyers of agreed to standard language options could play a significant role in improving our efficiency, lowering legal costs, and decreasing disputes. Adoption of standard language could occur at a variety of levels.
At the simplest level, a firm or legal department could develop clauses or forms for use by their lawyers. A variety of legal departments and firms have started down this path, but there exists room for significantly expanding these efforts to more areas.
At an inter-company level, companies that enter into multiple contracts involving the same subject matter (e.g., licensing software code between them) could agree to a set of standard license grants that they could quickly choose from when drafting software licenses. These previously agreed to license grants could then be used in a “plug and play” fashion by drafting lawyers when documenting transactions between the parties.
At an industry level, companies within a given industry could collectively agree on standard clauses or forms that could, at the election of the parties, be called on to speed up transactions and introduce consistency where appropriate. For example, the stock photo industry could come up with an agreed to set of license clauses (e.g., “student license grant”, “national publication license grant” etc.) that would perhaps accomplish for the stock photo industry what Incoterms has for shipping.
At a state level or even a national level, bar associations and law schools could become the drivers and creators of standardized legal language options for optional use by the profession.
What do you think – is all of legal drafting still an artisan craft or is there room for some standardization?