The Ultimate Guide to Clause Libraries
A step-by-step guide
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With Lucille’s drafting challenges in mind, we can now look at some of the ways a clause library could have helped to avoid some issues and streamline the process.
Providing a single source of truth where users can find relevant clauses on relevant topics helps to speed up the time spent searching the right clause. This can be done either on the basis of keywords, an orderly folder structure, or different kinds of “metadata” assigned to individual clauses.
That said, searching is only one part of the drafting equation. Some specialised tools also offer ways to deal with tweaking, styling, and optimising by allowing you to add different kinds of flexibility to your clauses.
There is a common misconception in the legal world that providing clause libraries to junior legal experts like Lucille stifles their learning process. Many assume that the trial-and-error process Lucille has to go through each time she drafts a contract is the only way to truly learn how to become a legal drafter.
Not only is this idea highly unfair to clients (they are essentially paying for Lucille’s ‘tuition’ in the school of legal drafting), it is also patently untrue.
Empowering your colleagues with clause libraries is an ideal way to give them a bird’s eye view of the different routes they can take and to get them to think critically about legal nuance as a result.
Suppose Lucille had been using a clause library that offered her the option to explicitly search for the kind of license she was instructed to look for, complete with all the necessary legal nuance. Not only would she not have made the mistakes she did, but she would have been in a better position to appreciate the different ways in which that legal nuance presents itself, and would be better positioned to spot gaps in her document (and even the library itself) going forward.
Diving into precedents to find the right clause carries serious risk. Lucille was fortunate enough to have caught the fact that the precedent document provided to her was outdated, but not everyone might be as perceptive as her. In the future, this issue could surface again.
For example: had Lucille been presented with the outdated clauses in a clause library, then she could have flagged them in the library and warned her colleagues who would use this material in the future. In the current setup, the precedent will not be altered and when a new lawyer comes along, he or she will still be presented with this material. Who is to say whether they will be as perceptive as Lucille?
Another danger in using old content is that provisions written especially for a client’s unique situation may creep into the new one. Central management of clauses in a dedicated library allows you to extricate clauses from their source document and make them available in a more versatile manner.
It’s a well-known fact that lawyers are taught to look to the past: “what has court X said about this topic? What has professor Y written?” This way of thinking is not without its dangers though.
Research on that topic performed on a database of over 12.000 M&A agreements reveals that traditional, precedent-based drafting leads to “a high level of […] unnecessary and ad hoc edits that appear to be cosmetic rather than substantive. [… This leads to] haphazard and inconsistent lawyering as lawyers add significant amounts of extraneous information to each deal and inadvertently retain deal-specific information from prior deals.”
Consistent content – It’s always preferable to have a document contain a clear thumbprint of the organisation rather than the individual lawyer drafting it. Law firms especially will want to ensure some consistency in the content and look-and-feel of their documents. Creating a single repository of content for all team members is an important step in the right direction.
Advanced legal drafting software will allow you to create intelligent clauses that immediately streamline such things as terminology and grammar. For example: say you insert a clause from your clause library into a contract that identifies the parties as “Supplier” and “Customer”. However, the clause itself assumes the parties are identified as “Service Provider” and “Client”, respectively. The terminology that should be adopted by that clause is the terminology used by the rest of the contract in which it is inserted. Rearranging this terminology and grammar takes additional lawyer time and review.
Consistent layout – Dedicated clause library tools allow you to avoid storing the layout of the clause together with the content of the clause. This is important to avoid having to perform a lot of clean-up work when inserting clauses, or to allow clauses to automatically adapt to the styling of the document as they are inserted. But even in “do it yourself” clause libraries like the spreadsheet-powered library (see below), separation of style and content is possible.
In jurisdictions that work with multiple official languages, finding the right clause takes on a whole other dimension. Suppose you are based in Spain and have found the perfect clause only… it’s in English, and the document you want to draft should be in Spanish. Sure, you can translate it on the spot. But you will likely be reinventing the wheel again. Furthermore, your colleagues will not benefit from the translation exercise you have performed unless they get lucky and stumble upon your document in the future as they are searching for a precedent.
Dedicated clause library tools situated at the more powerful end of the spectrum will not only allow you to store multiple language versions of a clause, they will also provide machine translation functionalities to facilitate a quick translation process.
On the one hand, your drafting knowledge should be accessible to those who need it. On the other hand, you want to present only relevant content to users (e.g.: employment lawyers rarely have need of a corporate lawyer’s clauses).
Clause library tools should allow you to set up these silos. Not only do they improve the experience for end-users, they mitigate the risk of unwanted changes being made to the clauses themselves.
