Can the Crowd Produce a Decent Contract?

Law Business

Bill Carleton wrote a piece last week about law firm Gunderson Dettmer making form agreements available on Docracy’s website. In case you haven’t heard of Docracy, here’s how the web company describes itself:

Docracy is a social repository of legal documents. Our mission is to make useful legal documents freely available to the public. We also hope to make them easier to find, customize and sign. No more crappy templates behind a paywall that you download hoping everything will be alright. Instead: reputable, transparent sources and social proof to help you find something as close as possible to the perfect document.

Ken Adams expressed skepticism today in his post “Free” At All Cost? — A Response to Bill Carleton. This quote sums up Ken’s response pretty well: “So I’m not excited by Bill’s premise that if other firms were to follow Gunderson Dettmer’s lead, ‘It would blow the doors off the virtual Victorian safes in which law firms sequester legal templates.’ Most law-firm templates don’t belong in a safe — they belong in the outhouse.”

I started writing a comment to Ken’s post but thought I’d better move it to my own cyberspace real estate when it became embarrassingly long.

Law firm drafting

When I was a new associate, it was satisfying to learn to mimic the language of precedent contracts. In my eyes, bad drafting wasn’t a matter of archaic or suboptimal usages but of spelling and grammar errors or careless mistakes, such as providing “thirty (45) days’ notice of termination.” I didn’t see anything wrong with using legalese and rather enjoyed writing quality legalese. The prose might be challenging to read, but we were all sophisticated parties and high-caliber lawyers and that’s the way it was supposed to be.

I believe that view was (and probably still is) shared by all 349 of the other lawyers in my (then) firm.

Such an attitude is reflected in the documents filed on EDGAR, the form contracts that law firms have made available on their websites, and the open source/crowd source efforts I’ve seen. The vast majority of corporate contract drafting is of that sort, and it’s not likely to change any time soon.

Will law firm drafting suddenly improve? Will crowd-sourced drafting be a model of standard English prose? I doubt it. Whether the documents are proprietary or are freely available, contracts pretty much all come from the same drafting traditions.

The possibilities of technology

You probably know that I’m a proponent of legal services innovation and technology. What’s exciting to me about the present state of things is the potential for significant improvement in the quality and speed of legal work. Readers of this blog know that I’m a fan of Ken’s Koncision NDA product. If you didn’t know that, you must have missed my review, Koncision: One Giant Leap.

I’d be willing to bet that the highest quality contract Ken’s ever drafted is sitting in Koncision’s NDA template. But no client could afford to pay for the time he’s invested in it to create an NDA for a single transaction, nor could they wait long enough for him to draft the NDA with such care. Yet I could complete the Koncision questionnaire and have a great document in a matter of minutes. It’s magic.

I think crowd-sourced contracts have potential for similar magic. The fact that no one seems to have found the formula yet doesn’t mean that it won’t happen. The fact that freely-available contract forms generally reflect suboptimal drafting is no argument that crowd-sourced contracting can’t produce quality documents any more than the fact that EDGARized contracts reflect suboptimal drafting means that corporate law firms can’t produce quality documents.

Is it a pie-in-the-sky notion that busy lawyers will spend time working for free to contribute to crowd-sourced contracts? I really don’t think so. Just look at all the energy that’s being expended writing blogs, publishing articles, and preparing for speaking engagements, all for free. We would do it, if only someone could create the right _____ to make it a worthwhile project. Surely, someone out there can fill in the blank.

8 comments… add one
  • Ken Adams Feb 28, 2012 Link Reply

    Brian: As I read the closing two paragraphs of your post, the final words of The Count of Monte Cristo came to mind: “Wait and hope.” Not a particularly promising sentiment when it comes to law practice!

    But more to the point, there’s no reason why one should have to rely on the mysterious alchemy of crowd-sourcing. If a definitive suite of startup documents matters enough to enough people, there should be sufficient resources on hand to create something more robust. Otherwise, you’re sacrificing high standards and value-for-money on the altar of “free.”


    • Brian Rogers Feb 28, 2012 Link Reply

      Ken: Unfortunately, my day job as a practicing attorney seems to require waiting and hoping as I’m constrained by the tools available to me, law firm and corporate economics, the idiosyncrasies of the legal market, and time limitations. Sadly, there’s not a lot I can do to effect change.

      So I’m moonlighting as a cheerleader, encouraging the intrepid few who are working to transform our profession for the better.

  • Max Mednik Feb 28, 2012 Link Reply

    Great points, Brian and Ken. I agree with much of what you have to say. I’m torn as well on the new initiatives; the base document is still often going to be tweaked, so the question is if the base docs provided in these crowdsourced systems will be good enough or better than someone homebrewed. I hope they can (and I hope that crowdsourcing here works to up-vote the ones with the best quality contract language).

    By the way, I also hate it when I get a contract with a mistake like “thirty (45) days’ notice of termination.” I wanted to tell you that that specific error is actually caught by Ridacto, so we hope we can help people avoid making that mistake and having it get into the final form (or at least what they show their boss!). We’re not in the game of providing contract language; we just want to provide tools for people to check and produce better quality contracts (when they’re not lucky enough to just receive an NDA from Koncision, for instance :)).

    Thanks for sharing your thoughts!

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