A good number of law firms are ContractExpress customers. Goodwin Procter. Latham & Watkins. Perkins Coie. Wilson Sonsini. And so on.
But recently I’ve spoken with a few BigLaw partners who have said that they don’t currently use contract automation and have no plans to do so.
Let’s consider what explanations they might offer for their lack of interest:
There’s no way that a document-assembly system could allow for the vast range of choices available to a knowledgeable lawyer creating a contract for an M&A or lending deal the traditional way.
Well, I don’t accept that. The only limit to the permutations you can include in a ContractExpress template is whether the likelihood of someone using a given option makes it worthwhile (1) adding another question that the reader has to consider and (2) investing the time to include that question in the questionnaire. Otherwise, you can build into a ContractExpress questionnaire more complexity that any drafter could be expected to have at their fingertips. My showcase confidentiality-agreement template (here) offers way more complexity than would be available to a lawyer putting together a new confidentiality agreement based on a couple of precedent contracts.
Document assembly is a “black box” system: answer the questions and the system spits out a draft. There’s no way that a serious transactional lawyer would surrender control over wording in that manner.
Oh, boo hoo. For one thing, when you read the output document, it takes only a modicum of perceptiveness to connect its provisions to the choices you made in the questionnaire. But more to the point, ContractExpress’s “Preview” mode allows you to see exactly how your answer to a given question affects what ends up in the draft. Lack of control isn’t a valid objection to document assembly.
Document assembly takes away from me the autonomy to draft contracts as I see fit.
Yes, that’s true. But as a practical matter, that autonomy, indulged in across a law firm, translates into the poor quality and inconsistency that are hallmarks of BigLaw drafting. (That’s something discussed in this article I wrote with Tim Allen of Business Integrity.) If you don’t think that, in general, BigLaw drafting needs significant help, you’re not paying attention. So go ahead, indulge in that autonomy, but realize that you’re paying a steep price for it.
We don’t do enough of a given kind of deal to make it worthwhile investing in a document-assembly system.
Deciding whether to invest in document assembly requires a cost-benefit analysis: Do we do enough of a given kind of deal, with enough permutations, and enough value, to justify the technology costs and the time and expertise required to automate the content?
But I suspect that only a small proportion of those practice groups that might benefit from document assembly have gotten around to doing such a cost-benefit analysis.
Furthermore, with a bit of ingenuity one could find economies of scale that would ensure that a document-assembly system is viable. For example, if the M&A bar were less of a Medieval guild, they’d pool resources and create a set of document-assembly templates for use industry-wide. That was advocated way back in 2007 in this item by two Jones Day partners, but of course nothing ever came of it.
We don’t need to invest in automated contract creation—we’re quite profitable doing things the inefficient way.
This rationale I can respect. At least it’s honest.