From Copy to Referencea plan to evolve legal drafting
Plenty of legal drafters see that we should really be incorporating more standard language by reference, instead of copy-pasting and short-order cooking. We’d have more fun that way, and clients would be better served. But it is much easier to see how much better things could be than how to get our profession there en masse.
Fortunately, there’s an obvious theory of change: Shift from copying to referencing by doing both for a while. Mounting experience shows this path can be walked in practice.
In simple social terms, unfamiliarity carries a cost. Even among those used to incorporating terms, seeing a permalink in a proposal is still weird. Referencing a pricey dead-tree tome, on the other hand, passes normally. A huge advantage of incorporating standard language by reference is reviewing once and recognizing many times later, in new contexts. But until taking parts by reference becomes widespread, most peers reading our work won’t get that benefit. They’ll see what we reference for the first time, every time, and feel the way we all feel when one short document ends up weaving a big spider web out to a dozen others.
|Document Text||Comment to Document|
|Status Quo||Copy and Paste||None|
|Level 1||Copy and Paste||Reference|
|Level 2||Reference, then
Copy and Paste
|Level 3||Reference||Copy and Paste|
Level 1: Copy in Text, Reference in Comment
Several arbitration services publish recommended language for contracts. Even those of us who’ve put that language into our own drafts have to review it from nil again when we see it in someone else’s. We can do unto our readers better by adding comments to the language we copy like so:
I copied this language verbatim from AAA’s online ClauseBuilder tool at clausebuilder.org. I chose “Commercial” and “Arbitration”.
Even the most distrustful counterparty, knowing the AAA language, can save time this way. They can go online, choose the same options, and compare the text they get to the text in the draft. If it’s the same, what they know about the standard language fully applies in context. The longer and more involved the text, the more time they save.
Side Note: redline.commonform.org is a free, handy site for comparing two bits of copy-and-pasted text. It’s much quicker than pasting into new Word files and comparing.
Level 2: Copy in Text, Reference in Text
In the end, a comment to a draft is just another way to communicate with the other side. If we want the other side not only to read but to rely on our message, why not put it in the doc we’re proposing to sign?
Incorporate here the AAA ClauseBuilder standard commercial arbitration clause from clausebuilder.org. Quoting just for convenience, with any conflicts resolved in favor of the standard:
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
This has the advantage of documenting the reliance that enables us to skip reading every word if we’re already familiar with ClauseBuilder. We have a clear incorporation by reference, reflecting mutual intent. We have a clear rule of construction to deal with malign or accidental tampering. We have the rules on frauds and misrepresentations.
Level 3: Reference in Text, Copy in Comment
Document text, just like any comments, is but a way of sending messages. At this point, we could actually make the draft shorter without a convenience copy of the language we’re incorporating by reference. So in the draft, just the reference:
Incorporate here the AAA ClauseBuilder standard commercial arbitration clause from clausebuilder.org.
And in case we think it might speed up review or avoid a confused reaction, we add a comment:
To save you the trip to ClauseBuilder: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”
The truly paranoid counterparty will ignore this comment as not to be trusted. But there’s nothing for them to trust. The language in the draft comes from AAA now, not from the other side. If they’re familiar with AAA’s language, they don’t have to review it again. If they want to anyway, they can go online.
The problem with doing this—and the reason we don’t see arbitration clauses handled this way in practice, and shouldn’t—isn’t with our method. It’s a problem with AAA. More specifically, with clausebuilder.org.
What if five years from now we want to bring a claim, need to see the terms agreed, and clausebuilder.org no longer responds? What if clausebuilder.org works, but it spits out different language than it did when the lawyers reviewed?
Here lies the last rational bastion of the copy-and-paste machine. The reason to confidently reference pricey print Incoterms and scorn free publications online. Copying creates a full record we can lay to rest in our client’s contract filing system. Published books get sent to librarians, especially at depositary libraries. One way or the other, we know we can dig the language up later.
The problem is time and its ravages. The solution is archives and archivists.
The World Wide Web has a public archive, archive.org, home of the Wayback Machine. There are also more specialized services like perma.cc for legal and academic writers. We can use both, and more, to preserve legal terms for long-term reference. We do this for the terms of the Waypoint and Guestbook NDAs. We do it for forms like Square One’s employee, contractor, and confidentiality and IP terms. All these pages start with links that point to dated snapshots of their content, complete with terms, archived by neutral third parties.
To further predictability, each of these documents is also numbered. Once a version is published, by strict policy, no change is ever made to its content. Any such changes—from typo fixes through substance improvements to total rewrites—go out as new versions with different numbers. Waypoint 3.0.0 always means precisely one set of terms, come what may. And that set of terms will remain available, thanks to the archives.
We know what we’re referencing, and we know we’ll be able to find it down the line.
Goal: Just Reference in Text
When we left off, we were incorporating arbitration language by reference in a document’s text, but also copying that referenced language, for reviewers’ convenience, into an accompanying comment. Then we ran into problems, due to the way AAA versions and published its tool.
If the AAA published its language with the benefits of versioning and archiving, we could dispense with the comment. It would become pure convenience, exclusively for those willing to trust. Just the reference would do the job.
We’d know the text the reference refers to. We’d know that it would remain available, either directly at that address or from an archive. We’d know we could continue referencing a particular version in terms and interpreting references to that version in terms from others. It would become an adaptable piece of standard, like “Incoterms 2020 Ex Works”, without the ceremony and expense of paper publishing.
There’s no need to understand all of these details and their consequences, or to force everyone else to understand them, all at once. That’s impossible. People don’t work like that.
There is a need to seriously evolve legal drafting, efficiency-wise, substance-wise, and lawyer-sanity-wise. More shared language, developed collaboratively and incorporated prodigiously, will help. To hasten that process, we can:
Earnestly engage with colleagues to share, publish, and evolve shared standard language and forms. If you need help, drop me a line.
Use those terms and forms as they become available.
Do so at the highest level that works in context, pushing toward reference-only.
It will not be tactful or helpful to go straight to references everywhere for everything at once. But the more opportunities we take to show as well as tell how drafting could be better, the less time it will take to broadly socialize the method and its benefits.
Special thanks to Matt Farrington for stimulating this blog post.
Your thoughts and feedback are always welcome by e-mail.
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