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Defensive lawyering may explain why law firms don’t make bigger investments in contract template systems

Why don’t law firms don’t make more use of automated-template systems for drafting contracts? I suspect that lawyers’ psychological need for defensive lawyering is right up there with the factors listed in Ken Adams’s blog posting.

Defensive lawyering is a powerful incentive to custom wordsmithing

Lawyers want to do a good job for their clients for its own sake, of course. But they also want to avoid loss of reputation and malpractice claims.

This is a big psychological incentive for defensive lawyering — and I strongly suspect that, in many a lawyer’s mind, no contract template can do as good a job of protecting the lawyer as a document that the lawyer himself has wordsmithed.

Add to that, the economic incentive of hourly billing.

You now have two powerful incentives in favor of custom wordsmithing over document-assembly projects.

The psychology is different when trade associations’ standard forms are available

Commenter Meade Ali points out that in the financial-services industry, lawyers make extensive use of standard contract forms developed by industry associations such as ISDA, SIFMA, and NAESB.

I think the psychological analysis is different here. I suspect that lawyers feel less vulnerable to being criticized when they’re using a form that the client’s own industry group has prepared, reviewed, and encouraged for use.

{ 3 comments… add one }
  • Adine 2009-10-28, 14:16

    Custom wordsmithing and document assembly don’t have to be mutually exclusive. The lawyer can use his or her own words to create a document [template] which is then automated for reuse. The lawyer can also draft his/her own clauses for future versions of that document. By automating documents, there is less need for defensive lawyering, because the lawyers can be assured that they are always using a well-crafted, compliant document.

  • DCT 2009-10-28, 15:38

    @Adine, you have a point, but it can be difficult to get lawyers to invest even minimal time in doing what you suggest, possibly because they have a hard time envisioning the eventual payoff.

    As my old law firm’s chairman once said, after he and I had lunch with a document-assembly vendor, “This guy is selling woodworking tools, but what I need is furniture.”

    Thanks for commenting.

  • Adine 2009-11-04, 08:49

    @DCT, I agree it can be tough getting lawyers to invest in template automation. As you note, the ‘billable hour’ provides a huge disincentive. What’s needed is for law firm leadership to take a longer term view. That would give them the freedom to invest the requisite time upfront so that clients obtain a more cost-effective service which still meets the firm’s ROI requirements.

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