Creating a bank of precedents, whether for a law firm or an in-house department, is a significant challenge. In my previous posts (Part I – Getting Started and Part II – Crucial Elements), I addressed the major challenges involved in building a precedents collection. Maintaining your collection is an even more important, and daunting, task. That is the focus of this last one of the series.
Reasons for keeping your collection up-to-date. Your precedents will only be useful if those who might make use of them are confident that they are current. Once the text (of the first published version) of the agreement is finished, the precedent’s author can easily leave it and move on to other projects. But the risk here is “out of sight, out of mind.” Failing to keep your precedents “green” will mean that, over time, others will become reluctant to use them, worried that they are out of date. Having invested considerable time and intellectual capital in creating your documents, it is crucial not to throw away that investment.
The following steps will help you do this.
Make your collection accessible. Even if you are only organizing a precedents collection for your own use, ensure that everything is saved in an accessible location, and the contents are organized in a logical, consistent manner.
Hyperlinked index. Create an index (ideally hyperlinked) that enables users to find content either by browsing or by searching key words.
Identify an “owner” of each agreement. Identify one person responsible for keeping the agreement up to date and identify his or her name at the top of the document. This ideally should be a subject matter expert (SME) in the area and not just the KM/admin person who does the background work. Users will have more confidence if they see an SME’s name associated with the document. This will also encourage the SME to keep the agreement green, since his or her name is associated with its quality.
Encourage feedback. If the collection will be used by others, encourage feedback. Include a notice in bold at the top of each document soliciting comments. Make contacting the “owner” easy for anyone with comments. Ideally, set up the feedback tool so that the comment goes to the SME but is also copied to the KM/admin person.
Make commenting easy. Create a copy of the current precedents that users can annotate with their suggested changes, which identifies the author of the changes in case there are questions.
Acknowledge contributions. If you have adopted changes suggested by Lawyer X, acknowledge that fact in the next update. This will encourage others to comment.
Indicate date the last updated. Do this in both the name of the agreement (such as Precedent Asset Purchase Agreement – 2017-01-23) and at the top of the first page. Users will have more confidence in an agreement that has been updated recently (in other words, within the last year, if not more recently). Even if after no changes are needed after the review, note the current date as the most recent update. (As a practical note, given variances as to how users will interpret a date noted as 2-12-2016, I suggest that you adopt the year-month-day format, just to make things clear.)
Diarize the review. Ensure that each agreement is brought forward for review on each anniversary of its publication. (If two or more are published on the same date, consider staggering the dates.) Refer the current draft and any comments received to the SME who “owns” the agreement at least two months before the anniversary date and follow up to ensure the deadline is met.
Leverage recent experience. If possible, when preparing for the annual review, search your collection of saved documents (for example, your document management system, if you have one) for similar documents that your colleagues have worked on since your precedent was last updated. A comparison against your precedent may show up changes that may need to be made but that haven’t been flagged. Highlight those to the SME.
Review suggested changes. Ideally, you should have a general editor of your precedents collection, who is charged with ensuring that the collection is consistent and conforms to your style guide. Any changes that the SME proposes to make should be reviewed and approved by your general editor before publication to ensure, among other things, that the changes conform to the 80/20 rule. Avoid the temptation to “bloat” your agreements!
Communicate your updates. Let your users know regularly that new agreements have been published and existing ones updated. This will instill further confidence in your process and the perceived quality of your documents.