This blog, part of our “Foundations of Knowledge Management” series, outlines best practices for creating and maintaining precedent collections.
What are precedents?
A collection of template contracts and other documents that can be adapted for use or referred to by lawyers on specific matters (predominantly transactional work). Sometimes they are called model forms, standard forms, or templates – ‘precedents’ is the catch all term used in this blog.
Why have a precedent collection?
It mainly comes down to efficiency and quality. Having a collection improves consistency, reduces risk, avoids reinventing the wheel, and lowers drafting costs that often cannot be recovered. There is also an element of competition, as all law firms (particularly large ones) tend to have a precedent collection so you may be at a disadvantage by not having one. Junior lawyers will benefit the most from a precedent collection, as they will not have the experience to draft from scratch.
“But everything I do is bespoke!”
Some lawyers may say this to you but, arguably, all work that leaves a firm is bespoke/tailored to clients. Precedents do not replace that need. What they do is get your lawyers there quicker and in a format that is consistent for the firm and as risk free as possible.
Do you always need precedents?
Not necessarily. Creating and maintaining precedents is an investment that is time consuming and will be of limited benefit if not well thought out. Sometimes a collection of good example documents from previous matters could be just as valuable. External resources (such as Practical Law) also have extensive collections maintained by large teams (the main disadvantage of using these is that they will not take into account preferred drafting style, content, or commercial context).
Where to start?
If your collection is small or you have nothing yet, it can actually work to your advantage! It means you can focus on what is needed by having conversations with your team and deciding on what initial categories or areas will have the most impact. For example, it could be the document types that are most common, most likely to be drafted by a junior lawyer, or the ones that have the most time written off. Once you have decided on this, you can base each precedent on one or more good examples and grow your collection from there.
If you have a large collection then you should periodically review what is in there (see section on metrics and measuring).
What should they look like?
They should look consistent, be clear, and technically robust, as they will be relied upon repeatedly. You should also include a cover page at the front highlighting any key dates associated with the precedent (when it was last updated), a description, and details of who drafted it.
Drafting notes/guidance should be included (either at the start, throughout, or in a separate document) and different drafting choices should be integrated; doing this helps to provide valuable context. Make it obvious if text needs to be adapted or inserted by highlighting it, using square brackets etc.
Precedents should not contain any client, matter-specific, or sensitive information.
Who drafts them?
If you have knowledge lawyers they will usually be the ones to identify and draft the precedents. However, the associates and partners in your group may also want to be involved and their participation should be encouraged. Be mindful and realistic of the time pressures and priorities that partners face as, for example, involving them heavily in the signing off process could end up causing delays.
If there is any downtime, for example during the current pandemic, then involving lawyers is a great use of time as it will be a rewarding learning processes and the team will end up with a valuable work product. Consider incentivising your lawyers through recognition and reward for their efforts too.
In all scenarios you will need someone with experience to draft the precedents. Juniors are unlikely to have the experience to draft precedents and your team will have more confidence in the collection if it has some experienced credentials associated with it.
Where should they go and what about access?
At Reed Smith we store our precedents in our document management system. Precedents can also be stored on the intranet, or other separate platforms dedicated to knowledge materials. There is no right or wrong answer but think about who will be accessing them and who will be drafting them, then ensure that the right people have the right access.
To make your collection easy to navigate think about the taxonomy, folder structure, and/or simply create an index in one document of all your precedents broken down into categories. Technology can also play a role in helping surface and categorise documents, however, the right content needs to exist first.
Make sure, also, that you collection is easy to find. You can do this by linking precedents on an intranet page or regularly advertise them in meetings, newsletters or other knowledge communications. Ensure that your new joiner process includes reference to the relevant collection.
There are sometimes valid reasons to lock down a precedent collection, however, you should strive to make them open and accessible as this creates a positive culture of knowledge and sharing. One thing to be careful of is who has edit access. Select a core group of people who have the necessary edit permissions, as this will help prevent any accidental edits from happening.
“But who will maintain them?!”
There is no skirting around this; you need to have a maintenance process in place. This could be achieved through a small group that convenes on a regular basis to discuss legal developments and changes in market practice. If you have knowledge lawyers they will lead this process. Any changes to precedents should be clearly marked on the front page together with a description of the change.
If it is not going to be possible to maintain the precedents, then consider instead having a collection of example documents and/or make it very clear at the front of the precedent that it is not maintained.
Metrics and measuring
Explore how to get hold of metrics for your precedent collection. At Reed Smith because our collection is stored in our document management system, we can gather usage data on a regular basis (we do this monthly).
If particular precedents have very high usage then you should focus your efforts on maintaining them. This might also be an indication that more materials (or training, thought leadership etc.) can be generated in that area.
If nobody is accessing certain precedents then it may mean you need to advertise them more, or an indication that the precedent needs to be retired. Deleting or archiving a precedent is actually more beneficial to the rest of the collection as people will have confidence in the remaining precedents.
Having a robust and relevant precedent collection is an investment that, when done well, helps drive quality and efficiency to benefit both firm and clients.