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Uniformity vs. Creativity

By Jim Calloway

COMES NOW the writer, and for his February Law Practice Tips column in the Oklahoma Bar Journal alleges and states as follows.

That is lawyer-speak for “Greetings.” I recall during law school when I was working for a law firm, I asked an experienced lawyer why we started all pleadings with “COMES NOW the Defendant” when the pleading already had a title like “Defendant’s Motion for Summary Judgment.” The response, which will surprise no lawyer, was some version of because that is how it has always been done.

I understand that many lawyers now omit “COMES NOW” from their pleadings. But I also note that it took a court rule change to get lawyers to stop using legal size paper for their pleadings in Oklahoma courts.

The study of law involves great focus on legal precedent. The late University of Oklahoma professor Dwight Morgan in my civil procedure class described the law as a great bird flying forward that only navigates by looking backward. I’ve quipped before that only works if there’s not a new wall in front of the bird. Certainly good lawyers look forward as well as backward.

But sometimes our zeal for perfection and protecting our client’s interest can lead to interesting results. Let some judge somewhere in the dicta of a dissenting appellate opinion suggest that the omission of a certain word would change the result and, over the next several months, that particular word will find its way into more and more documents drafted by lawyers. That it was the dissent really does not matter because we lawyers all wonder if that thought could turn into a majority opinion somewhere someday.

So we lawyers find ourselves in the position of using three or four words when perhaps one would do. You know the examples well.

   • “grant, bargain, sell and convey”

   • “give, devise and bequeath”

This is not to suggest any of those words should now be omitted. That is a substantive law issue and I am not commenting on it. (See? I do it, too.)

The perfectly good rationalization is “what harm can an additional word meaning essentially the same thing inserted into a series do?” But the same thought can then apply to adding a few additional clauses or sentences. Fast forward several years and a contract that some say “should” only be a few pages becomes a 20-page contract and the costs of several lawyers and client representatives reviewing the contract carefully is an expense which has now increased. The lawyers properly point out that the more detailed the contract the better it protects the parties to the contract.

But we have to recognize a competing value today is appreciation of brevity and the ongoing time-management challenges that both lawyers and clients feel. How many times have you found an article of interest but only made time to read the opening executive summary?

Lawyers’ creativity is unbounded when negotiating a deal, but when the documents are prepared, they are unlikely to be so creative. Following the standard path and using the traditional language protects everyone against an unforeseen outcome.

In a blog post last summer, I asked, “What if the clients decided to provide the templates for their legal work?” That thought grew out of a resource posted online by the National Venture Capital Association. They made their model legal documents for venture capital financing freely available for anyone to download and use. Among these are certificate of incorporation, indemnification agreement, investor rights agreement, management rights letter, model legal opinion, right of first refusal and co-sale agreement, and stock purchase agreement.

As the NVCA noted on their webpage at the time:
“By providing an industry-embraced set of model documents which can be used as a starting point in venture capital financings, it is our hope that the time and cost of financings will be greatly reduced and that     all principals will be freed from the time-consuming process of reviewing hundreds of pages of unfamiliar documents and instead will be able to focus on the high level issues and trade-offs of the deal at hand.”
Their point is simple. If everyone in the venture capital community started from these forms, they would be much easier to read and review for everyone. One could see a time when negotiations also would be made more efficient by everyone starting with the same document. (e.g. “We propose to modify standard paragraph 14 by adding X and Y.”)

This type of uniformity could save this client community a lot of money. It also could decrease revenues for the law firms that did this type of work on an hourly basis. But if that decrease was from reducing the hours that lawyers spend in repetitive proofreading, certainly many lawyers would make that tradeoff.

Somewhere at least one law firm no doubt responded to the NVCA standard template forms by saying “We’re not doing that. We can only guarantee the quality of our work and our representation of you by using our processes, not by filling in the blanks on forms provided by others.” Interesting discussions no doubt followed. But certainly lawyers contributed to those templates from NVCA.

UNIFORMITY CAN BE A GOOD THING

So you may ask what does this mean for you? Your clients are not going to create any online template sharing group and ask you to participate.

Many solo and small firm lawyers enjoy not being a part of a larger enterprise because they feel they can have more freedom and be more creative.

But let me share with you one of the most common complaints I hear from law firm staff, working in law firms of all sizes. It is about the lack of uniformity. They don’t necessarily use that word but they mention the concept to me repeatedly.

    • “We have to set up the files one way when they are Bob’s clients and a totally different way when they are Fred’s clients.”

    • “We can’t cross train anybody to cover for vacation or illness because Mary insists that her matters be handled differently than everyone else in the law firm.”

    • “Jim doesn’t handle a certain type of matter frequently, but when he does we have to go search in his old files because he wants things done differently than everyone else in the law firm.”

    • “We have five lawyers in the firm and so we have to use five different forms as the starting point for drafting a relatively routine document.”

    • “Deadlines and timelines for legal assistants are completely different for similar projects, depending on the lawyer.”

Sound familiar? It sounds familiar to every law firm consultant and many law firm administrators.
 
Pam Woldow and Doug Richardson co-authored the book Legal Project Management in One Hour for Lawyers for the American Bar Association. They recently did a blog post titled “LPM for Associates: The View from Ground Level.” They included the observation that one of the major frustrations that law firm associates experience is “the need for every partner to have things done in his or her own unique way. In the workshops, associates reported frequent false starts, do-overs, write-downs and dressing-downs resulting from a lack of consistency in how their work is assigned, managed and measured. They loved the uniformity (of even some of the basic steps) that LPM (legal project management) can offer.”

If your law firm suffers from the “every lawyer does it differently” syndrome, it is time to start the road to standardization. There is simply no reason for client files to be set up and managed differently for each individual lawyer. You are missing out on one of the benefits of being in a law firm by not standardizing. There may be very good reasons for client file setup to differ for different types of legal matters. But even then there should be some standardization. It’s in your best interest for every staff person to be able to assist any lawyer in an emergency.

If there are different basic internal forms used as document drafting starting points, then it is time to start ironing out those differences. Differences in substantive provisions should be discussed and resolved, leaving the final work product as the best that all of the lawyers combined have to offer your clients.

This may sound like a small thing and a low priority. But it is really quite significant. The future of law firms involves better legal project management and process improvement. Automating repetitive tasks is one way to improve efficiency, and law firms will find themselves involved in automation projects. You cannot afford to set up five different pathways of automation when only one is needed.

Recently the LexisNexis Business of Law Blog profiled OBA Law Office Management and Technology Section Chair Cheryl Clayton who practices in Noble. The profile outlined Ms. Clayton’s incorporation of the LexisNexis practice management solution TimeMatters into her practice. The title of the profile was “Why Being Brutal is Best: A Solo Attorney on Efficiency” and the theme was that small firm lawyers have to be brutal in their pursuit of efficiency. I couldn’t agree more. You want to take time while counseling your clients and when making important strategic decisions. But lawyers should be brutally efficient with office information processing and managing client data.

Automating and improving day-to-day operations should free the lawyer to have more time to communicate with the clients and to focus the lawyer’s expertise on the high value work of creatively solving problems for the client.

Uniformity can sometimes be the antithesis of creativity. But done correctly in a law firm setting having uniform policies, procedures and documents, uniformity can improve your creativity and improve the legal services delivered to the client.

And it might start with something as simple as a group decision on whether the firm keeps COMES NOW or jettisons it.


OBA MAP Online Reading Recommendations

My column in the January/February Law Practice magazine is titled “It’s Time to Love Technology.” And, for lawyers, it really, really is.

Also of great interest in that issue of Law Practice magazine is “11 Tips on How to Cease Representing a Troublesome Client” by legal ethics guru Michael Downey.

“Five Thoughts on the Future for Solo and Small Firm Lawyers” was my contribution to Attorney at Work’s “Friday Five” series. Surely every lawyer understands the need to think about and plan for the future.

“Facing up to the challenge: It’s time to prepare law students for their profession” is the title of a provocative piece in the ABA Journal’s “The New Normal” section. The author, Michael Roster, is a former managing partner of Morrison & Foerster’s Los Angeles office and co-chair of the firm’s financial institutions practice group worldwide.

Mr. Calloway is OBA Management Assistance Program Director.  Need a quick answer to a tech problem or help solving a management dilemma?  Contact him at 405-416-7008, 1-800-522-8065 or jimc@okbar.org.  It's a free member benefit!

Originally published in the Oklahoma Bar Journal -- February 14, 2015 -- Vol.
86, No. 5