Word Processors Won’t Help in Court
That’s the title of my latest London Free Press article. I thought Slaw readers might find the article interesting. Since my arrangement with the newspaper does not allow me to republish it for a period of time anywhere but on my own blog, you can read it on my blog, or on the Free Press site, or on the Canoe technology news page (although this weeks article is not yet there at the time I write this.)
The gist of the article is that a UK judge was very critical of the drafter of an agreement, accusing him/her of just using boilerplate without thinking about what it should say, or perhaps not even understanding the subject matter.
In part my article says:
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.
Interesting article David. This explains the recent raft of contract checking software that is crossing the request list of our firm’s technology planning committee.
I don’t know if a software solution (Deal Proof comes to mind, though there are competitor products) is enough to guarantee no mistakes, but the thought of a double check certainly would be better than being criticized in court.
The problem isn’t one that any conceivable software programme could solve. The most important statement in the judgment of Judge Peter Prescott is this apho-rism: “Ce que l’on conçoit bien s’enonce clairement et les mots pour le dire arrivent aisément.” In other words, “garbage out (of the mind), garbage in(to the document) ”. Computers are notoriously bad at handling garbage (in either direction).
I have great sympathy for what the judge said as general principle, but I found the actual text that inspired his remarks to be pretty clear and unproblematic – his ultimate interpretation of them was just what I would have expected. He must have had a bee in his bonnet (fair enough, I have a few myself) and thought this case was his chance to let it out to sting a few sloppy drafters.
It might be worth noting that this case is the same one that I blogged about back in September http://www.slaw.ca/2008/09/12/contra-proferens/. The comments then were interesting too.