Errors of omission. Errors of inclusion. And more. Many current approaches to legal document preparation leaves much to be desired (and introduces unnecessary risk). Learn how tools like the MSBA's document assembly service, mndocs, offer a better method for drafting legal documents.
From purchase agreement to recorded deed, document assembly can help you reduce errors and increase profitability. In this session, Mike Trittipo will demonstrate the power of document assembly.
Speaker:
Michael Trittipo , Attorney Editor, MSBA. Michael is an attorney editor with the MSBA. He earned his J.D. cum laude in 1981, and practiced law for several years. He currently maintains the MSBA's mndocs templates using the HotDocs platform.
Philippine FIRE CODE REVIEWER for Architecture Board Exam Takers
From Purchase Agreement to Recorded Deed - Document Assembly in Real Property Law Practice
1. How Do You Draft
Your Clients’ Documents?
Reviewing the most common methods
and their respective advantages and disadvantages
2. Why Is Your Drafting Method Important?
•1) Client Relations
• What does client see, touch, take, keep?
• What does client think she pays for?
•2) Professional Responsibilities
• Avoiding errors (several kinds)
• RPC 1.1: duties of competence, skill, and thoroughness: the “use of methods and
procedures meeting the standards of competent practitioners.”
• Being efficient:
• RPC 1.5: fees’ reasonableness (including flat fees’) depends on factors including
“time and labor required, … [what’s] customarily charged, [and] … results.”
3. Find Former Example
(Or Multiples), Then Modify
•Advantages
•Venerable: as old as ink and hand-copying
•Worked with Dictaphones and typing pools
•Still works with cut-and-paste – sort of
4. Find Former Example
(Or Multiples), Then Modify
•Disadvantages
•Slow: just the “finding” can be a problem
•May need multiple priors, if none is a good fit
•Errors, of both omission and inclusion
•Potential for one client’s information getting
mixed with or disclosed to another (simply
due to editing, not even metadata)
5. Errors of Transcription:
Introducing and Perpetuating Errors
•Hand-copying tended to introduce errors –
and then to perpetuate those errors, which
then become subject to newer errors
•Not limited to hand-copying or medieval
scribes; still an issue today
•Example: a translator friend trying to make sense
of the English of what should have been part of a
limitation of liability
6. Modern error transmission
•The liability of [Company] is unlimited for damages arising out of death or
injury to body or health based on a breach committed by a legal
representative of Company, as well as for damages that arise from the lack
of a guaranteed characteristic.
•The liability of [Company2] is unlimited for damages arising out of death or
injury to body or health based on a breach committedconducted by a legal
representative of Company2, as well as for damages that arisearose from
the lack of a guaranteed characteristic.
7. Modern error transmission
•The liability of [Company2] is unlimited for damages arising
out of death or injury to body or health based on a breach
committedconducted by a legal representative of Company2,
as well as for damages that arisearose from the lack of a
guaranteed characteristic.
•The liability of [Company3] is unlimited for damages arising
out of death or injury to body or health based on a breach
conducted by a legal representative or designated agent of
Company3, as well as for damages that arose arouse from the
lack of a guaranteed characteristic.
8. Modern error transmission
•The liability of [Company3] is unlimited for damages arising out of
death or injury to body or health based on a breach conducted by a
legal representative or designated agent of Company3, as well as for
damages that arose arouse from the lack of a guaranteed
characteristic.
•The liability of [Company4] is unlimited for damages arising out of
death or injury to body or health based on a breach conducted by a
legal representative or designated agent of [Company3], as well as for
damages that arise arose arouse from the lack of a guaranteed
characteristic. -- https://worldofwarships.eu/en/content/santa2017/ and https://warships.net/
9. Errors of Omission
•Original(s) lacked reason to include some
provision
•An included provision is overlooked in the
dictation or copying
10. Guards against Omission
•Multiple documents: increases odds one will
have included a desired provision (but
increases time to find, choose, modify)
•“Master” documents (especially with
multiple versions of clauses – all options)
•Checklists and flow-charts
11. Guards against Over-inclusion
•Mainly your editing prowess – especially
with “master” documents that cover all
possible alternative choices
•“Why is this here for this client”?
•“Does this make sense for this client?”
•Checklists or flow-charts can also help
12. Approaches to solutions
•Word-processing advantages
•Everyone has a word processor
•Can begin with a master all-inclusive
document
•Can have fill-in-the-blank prompts
13. Approaches to solutions
•Word processing disadvantages
•Lists and re-use of information can be a
problem, even with automatic text fill-in
•Available logic is limited; still relies on
highlighting to get lawyer’s attention, or on
annotations, and on search-and-replace (and
“replace all” is dangerous)
17. Other People’s Forms
•Every state has a publisher,
often more than one
•Especially for “relatively”
common, “relatively”
standardized transactions
18. Printed Forms’ Disadvantages
•If “locked down,” either as ink on paper or as a
locked PDF, not editable apart from filling in the
blanks:
•Locked into all aspects: font choice, font size,
space allowed (or wasted) on names, legal
descriptions, etc.
•Could contribute to client mis-perception of
lawyer as a mere scrivener, not an analytical,
transaction-savvy, experienced helper
20. Issues
•Reasonable lawyers can make good
arguments for why a locked-down, fixed,
uneditable, known-text form is good.
•Efficiency: I’ve seen this, I’ve vetted it, I know
exactly what I sometimes strike-out & initial
(duties of competence, zeal, fees all met)
•Can tell client how well this form’s been
vetted, and its benefits over other forms
21. Issues
•Many members have asked how to make
the text editable (vs. strike-outs and custom
addenda or initialed insertions)
•In some ways, the issues are like those faced
when deciding to use an official state-
created UCB versus the MSBA’s HotDocs-
based ECBs
24. How does it work?
•Software assembles the finished document
(including text, deleting text, choosing
between options) based on lawyer’s
answers to questions
•Similar to what the lawyer would do with a
master document that included alternate
clauses or text, based on the same answers
25. Document Assembly
•Cf. TurboTax or H&R Block tax software:
•Similarly Interview-based
•But end product is editable in all respects
•Several companies (because of the method’s
value in several fields)
•MSBA uses HotDocs; branded as mndocs
26. Walk-through
or demo
•Depending on connection, time, and
audience, can either do a live demo, or walk
through some screen captures from a live
session.
•Include re-use of answers demonstration
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44. How to handle alternatives
•Option 1: put check-mark in the chosen
alternative; still show others without a
check-mark
•Option 2: put check-mark in the chosen
alternative; hide unchosen alternatives
•Option 3: integrate all text, eliminating need
for check-mark at all
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50. Re-use of answers
•Main fields consistent across documents
•The seller or buyer in the purchase agreement
will be the grantor or grantee in the deed
•Legal descriptions, addresses, etc. carry over
without the need to re-type
•Reduces re-typing, reduces room for errors,
reduces work
58. Advantages of Automation in Drafting
•Known, vetted base text
•Interview functions as a checklist, a basic
protection for inclusion/omission errors
•Fixed text functions a protection against
typos – especially in client names
•Editable in all respects; clients see a finished
document, consistent with others you make
59. Practical Advantages
•No need to install software (IT, security Qs)
•No device-based installation, license limits
•Accessible via any browser and any word-
processor that can handle RTF
•Answer files savable, re-usable, transparent
(no limited, proprietary format)
60. What about inter-lawyer
trust-but-verify issues?
•Passing-off issues should be limited, as with
UCBs and ECBs, by different looks
•Text changes can be quickly located via text-
comparison software
61. Limitations and Open Issues
•The purchase agreement is the first document
from the RREC that the MSBA has automated –
no others yet – especially not closing financials
•Member feedback on some choices would be
valuable
•Example: showing unchosen options or not (e.g.,
checked and not-checked boxes, or just eliminate
the one not checked?)
•Example: ever a reason to create a “blank” form?
62. Feedback – Sharing is Good
•Comments welcome: preferred handling of
alternatives; which residential transaction
forms next; offers of help with the financial
documents for closing; etc.
•Comments on existing documents: an
association exists so its members can help each
other; staff resources are lean and staff may
not know subject matter, but you do.
![Why Is Your Drafting Method Important?
•1) Client Relations
• What does client see, touch, take, keep?
• What does client think she pays for?
•2) Professional Responsibilities
• Avoiding errors (several kinds)
• RPC 1.1: duties of competence, skill, and thoroughness: the “use of methods and
procedures meeting the standards of competent practitioners.”
• Being efficient:
• RPC 1.5: fees’ reasonableness (including flat fees’) depends on factors including
“time and labor required, … [what’s] customarily charged, [and] … results.”](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)