The premise of copy-and-paste has merit. Truth be told, there are a finite number of general and specific objections. There is little reason to reinvent the wheel. Execution, however, is generally haphazard. Few lawyers can identify the source of the boilerplate they are grafting onto their responses. Even if the original source document was stellar, integrity degrades as iterations multiply, mistakes are compounded, and artifacts of unique situations are carried forward to incongruent circumstances.
Ideally, the associate would start with a true template — a document that provides a comprehensive selection of general and specific objections that reflect the firm's best practices. The associate should be able to use such a template to guide the word processing department to provide more than blank responses. Selecting from the template or a related document, the associate or partner, who might actually have the time to oversee the process once it is made less labor intensive, would, for example, direct the word processor to insert general objections 1, 2, 4, 6, 9, and 11. Similarly, the associate might instruct the word processor to insert specific objections 1, 2, 3, and 5 in response to Request for Production No. 1 and specific objections 1, 3, 5, and 8 in response to Request for Production No. 2. And so on.
Of course, drafting discovery responses should not end there. As with her expert selection of objections, the lawyer will add value in tailoring the responses to exigencies of the litigation. That is, the reliance on the process is not meant to remove the lawyer from the equation. Rather, the objective is to relieve the lawyer of costly drudgery and focus her efforts on the small but vital differences that make the case unique.
Similarly, in Audit Assignment #4, the associate modifies a settlement agreement. Again, the associate's drafting skills are not at issue. Instead, the audit is investigating whether the firm provides effective mechanisms for tapping into institutional knowledge. Are there checklists for what should be included in settlement agreements (e.g., confidentiality, choice of law, attorneys' fees)? If the agreement is lacking a necessary provision, does the firm have a curated repository from which the associate can select approved provisions?
Despite the snowflake-like uniqueness of every agreement, standard provisions are, as the name implies, standard. No one expects (and, indeed, no one wants) the associate to draft standard provisions from scratch. If the associate is not provided a readily available resource, he will go hunting for a prior agreement from which to copy and paste. He may very well settle on the easiest to locate, rather than the most suitable to the situation. Though there may not be any cost difference between the two methods, the deliberate guidance provided by the process-driven approach is more likely to deliver a quality outcome. Effectiveness is an even larger consideration than cost in assessing cost-effectiveness.
D. Casey Flaherty is corporate counsel for Kia Motors America. Flaherty's opinions are his own, not those of Kia Motors.
This article originally appeared in Law Technology News.
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