For the London Free Press – October 20, 2008

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Agreements are often created using standard “boilerplate” wording.

A British court was recently critical of bad drafting and attacked the lawyers who let word processors do their thinking for them.

The High Court in the case of Oxonica and Neuftec was interpreting an agreement that licensed patented technology from one company to the other.

At issue was how much of the technology the agreement actually licensed. The court said word processors have made it much easier for contract drafters to create agreements that are ambiguous, error-filled or unclear of purpose.

The judge stated that the drafting “cause(d) me to believe that the draftsman was not very familiar with patent practice and terminology. It conveys an impression that he was not always clear in his own mind about what he was doing and, when not clear, allowed his word processor to do his thinking for him. Bits of legal phraseology have been lifted from I know not what precedents and (were) assembled in a strange way.”

Many common, standard clauses appear in most agreements. It’s quicker and easier to cut and paste, than to recreate an entire agreement clause by clause. It also lessens the chance of making errors in drafting those clauses and lends familiarity to typical clauses.

As the court pointed out, however, simply using boilerplate paragraphs without thinking about how or if they fit a particular agreement is dangerous.

The clear message from this case: If the person drafting the contract doesn’t understand precisely what they’re designing the contract to do, or doesn’t put their mind to the drafting of each clause, it’s unlikely that the contract will do what the parties want it to do.

Word processors have created an escape by letting drafters cut and paste phrases and expressions where it may be unnecessary or unwise to do so. At the time, it is the easy way around these difficulties, but it can be a dangerous or sloppy way to draft.

The British judge begs drafters to learn what the real intention of the agreement is, develop a familiarity with the subject area and its terminology, and adjust the language or create new language to fit the need. In the end, the result is an agreement that’s clearer, more precise, and probably shorter.

It’s easy to take standard language, templates, precedents or boilerplate, and put together an agreement. To create an agreement that properly reflects the arrangement, however, requires the drafter to understand and think about the situation, adjust the language to fit, or write new language.

In other words, the ability to tailor a standard or precedent agreement or clauses to fit the specific needs of a particular agreement is far more valuable than the standard agreement itself. A well-drafted document might take a bit of time and money to create, but a poorly-drafted document could potentially cost millions.