Canada: Document Assembly As A Means To Improved Client Service

Last Updated: March 9 2012
Article by John Gillies

Previously published in Practice Innovations, January 2012

The bad economy has given new life to knowledge management, as clients pay more attention to law firm efficiency. Document automation is one method of improving document drafting speed and consistency. Several new products have entered the legal market in recent times, affording opportunities that were not previously available. In this article, the author details his firm's experience with "kiiac", a linguistic analysis tool that the firm is using to help generate precedents.

The recent down economy is making knowledge management (KM) more popular than it has been for a while, due to the need for increased efficiency. As a result there has been a renewed focus on the use of document automation tools. Several new products have entered the legal market in recent times, affording opportunities that were not previously available. My firm is in the process of embracing one of these new tools as a means of providing improved client service.

By way of background, my firm, Cassels, Brock & Blackwell LLP, is a single-office firm in Toronto with about 200 lawyers and 45 law clerks, which offers the full range of large firm corporate and litigation services. We have a much larger percentage of lateral hires than most firms, which brings with it many advantages but also carries the risk that there may be many different approaches to the right way of doing things. One key sentiment that is widely shared, however, is acknowledgment of the need to create a comprehensive collection of authoritative and up-to-date precedents.

Creating a precedent bank and then keeping it up to date has been one of the cornerstones of traditional KM. Unhappily, though, this initiative commonly has not been as effective as it could have been. Indeed, precedent projects often fail, mainly due to the huge time investment in creating them, the often overly cumbersome documents that are produced, and the failure to keep them "green."

There is usually a disproportionate amount of time devoted to producing what ultimately appears to be of little benefit. This is because the authors (or owners) of the precedent tend to want the document to be as perfect as possible. Therefore, the resulting precedents often contain large numbers of possibly unnecessary clauses, requiring users to strike large sections of unnecessary text in order to prune the document back to essentials. The risk of this approach, though, is that users may end up throwing the baby out with the bathwater as they cut vast swaths of what appears to be unnecessary language.

More significantly, the resulting precedent might simply reflect the personal predilections of the drafters on the precedent team. It may be a pretty good starting point, but nonetheless may be missing essential clauses. Finally, the precedents, once developed, tend not to be updated to reflect current experience, since users in the heat of drafting rarely think to incorporate their improvements made to the base documents.

Essentially, the spanner in this approach is exclusive reliance on human effort to generate these documents. However, today's linguistic analysis software tools, which did not exist even five years ago, enable a significant degree of automation not previously possible. Document assembly tools that previously made sense only for very frequently used documents can now be used for regular documents.

It is now possible to leverage computer-based content analysis to:

  • Fast-track the process of precedent production and renewal
  • Generate good, reliable precedents
  • Guide users in including necessary, and excluding unnecessary, clauses

This has essentially re-energized the firm's precedent initiative.

While increased efficiency and consistent branding of the firm's content always have been the primary business goals for a precedents initiative, there are other important ones. From a risk management perspective, it is crucial that all necessary clauses be included, all unnecessary clauses be eliminated, a logical structure be adopted for the final document, and there be consistency of language across similar documents.

These goals are now more easily attained when using computer-based linguistic analysis tools. From the point of view of training, good precedents also constitute a just-in-time means of delivering professional education. Further, there is increased satisfaction of professional staff, particularly associates, who have immediate access to top-quality content. Although impossible to quantify, this could have a positive effect on associate retention.

In the last year, we have begun using kiiac, the linguistic analysis tool developed by Kingsley

Martin, to help focus our precedent activities. We identify a particular document type and then, using our enterprise search engine, gather a representative sample (ideally at least 20, preferably more on the order of 40 or 50). These documents are then fed into kiiac, which identifies commonly recurring clauses and the consistency of drafting within clause types. Through what is essentially a computer-based elucidation of the wisdom of crowds, we can identify both a logical structure to the particular document type and all the necessary clauses, as well as the most commonly encountered drafting of each particular clause.

There is, however, a concomitant need for lawyer review, not just computer analysis. Kingsley's clear conclusion, after reviewing both publicly available documents on EDGAR and those submitted from many different firms, is that similar substantive clauses are often jumbled together with others. The process, therefore, involves teasing out the separate substantive issues so that each can be addressed on its own. There is accordingly a consultative effort involving Kingsley and the appropriate KM lawyer to arrive at the optimum form of the template document.

The resulting draft is then put out for use, and suggestions are invited. Realistically, however, drafting improvement suggestions are rarely made during the heat of document-drafting sessions. Accordingly, once a year we will identify and collect documents created from each particular precedent, run them through kiiac, identify substantive improvements that have been made to the underlying document, and update the precedent accordingly.

There are at least two advantages of using this computer-based tool in precedent drafting. First, the structure of the template document enables markers to be embedded within it (to identify things such as the names of the parties, the jurisdiction of the governing law clause, etc.), which can then be used to generate a document assembly checklist. A lawyer can, for example, review the opinion checklist to determine the relevant assumptions, opinions, and qualifications needed for the particular matter.

Instead of having to strike out unnecessary clauses from an omnibus precedent opinion, the drafter can focus on the substantive issues dealt with in the opinion. The resulting document accordingly should include only the necessary clauses. There are clear risk management advantages to having the drafter review the document assembly outline and think carefully about each potential issue. As well, the list can be given to a more junior member of the team, who will be obliged to think about the various substantive issues, thereby providing that lawyer with an excellent professional development opportunity.

Even five years ago, document assembly tools such as HotDocs" were available, but at a significant cost and intended for documents that were used repeatedly. With the checklist tools embedded in the precedent software, document assembly is now available even for documents that are used only occasionally.

The second advantage of newer solutions such as kiiac is the benchmarking capability. A firm's precedent document will only be useful half the time, namely when the firm creates the first draft. The rest of the time, the firm's role is to review the first draft prepared by opposing counsel. One cannot, however, blackline the latter document against the firm's precedent because its structure is completely different. The kiiac tool, on the other hand, because it analyzes the document's substance, provides a benchmarking capability to quickly identify what is missing, what is added, and what the drafting variances are.

While we are still at a relatively early stage of this process, there are some words of advice that I can offer.

  • First, as with any similar initiative, it almost goes without saying that it is best to start small and to target the low-hanging fruit first.
  • Second, it is important to recognize that this initiative strikes at the heart of the lawyers' drafting prowess. Generally speaking (and this is a conclusion that Kingsley has seen across the range of documents he has analyzed), there exists a much greater diversity in drafting styles than one would expect. While each lawyer recognizes the need for greater consistency in the drafting of firm documents, many do not recognize that this will require each of them to adapt (and indeed change) his own drafting practices.

As these documents become more common and are seen to be updated according to the firm's experience, and as lawyers use the document assembly checklists to generate first-draft documents, firms should see more consistent and substantively reliable documents being produced, thus advancing the business requirements that the precedents were intended to serve.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John Gillies
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.