UK Court Attacks Cut-And-Paste Boilerplate Lawyering
from the legal-documents-shouldnt'-be-cut-and-pasted dept
One of the results of the word processing era is just how easy it is to simply cut-and-paste things, and perhaps no profession has made more use of this than lawyers. We’ve seen it where lawyers include the name of the wrong defendant in a lawsuit, for example. Now, a court in the UK has slammed some lawyers for practicing boilerplate cut & paste lawyering, noting that a drafted contract was so meaningless at points that it’s clear the lawyer who drafted it had no idea what parts of it were talking about. The court noted “malapropisms, poor uses of terms and drafting errors” all of which “made interpretation of the agreement difficult.”
In fact, it was so extreme that the judge actually looked to figure out what was most likely meant between the two original parties, rather than what the actual contract says. This is pretty rare, as most courts tend to default to the actual text of a contract, rather trying to get into what was meant, as that opens up all sorts of questions. Yet, in this case, what was actually in the contract was apparently so terribly written that the court decided to go in the other direction.
Filed Under: contracts, cut and paste, lawyers, uk
Comments on “UK Court Attacks Cut-And-Paste Boilerplate Lawyering”
Two comments:
In cases like this Roman-Dutch law will normally find against the party responsible for drafting the agreement on the basis that they were responsible the wording that gave rise to the problem; and
What does this say about the parties who signed the agreement ??
This can lead to hilarious results. Last week two attorneys appeared before the judge I work for with the defense attorney asking for late discovery. The judge looked at the plaintiff’s attorney and told him,
Of course the plaintiff was allowed to refile the case, after paying all of the fees all over again. But still it was worth seeing the look on his face to have his case dismissed on a simple motion to compel.
Boilerplate Legal Documents
I worked as a legal secretary (years ago..when they first introduced the mouse into the office…)and am familiar with the boilerplates.
I remember reading one case in a law journal where they put too many zeros at the end of a dollar amount or something like that, essentially making the claim for several million dollars rather than several thousand dollars..and the court held it binding…
Personally, I experienced the idiocy of boilerplates in my personal life. I hadn’t seen my ex in 16+ years (he got our 17 year old babysitter pregnant) and I never filed for offical divorce – when remarrying I searched to see if anything was filed – and one was (within the last few years) filed. The court decision was not only full of conflicting gender references for all parties, but it also read that he had custody of my daughter…(she’s not 24)…and he had not seen his daughter since she was around 2 or so and I raised her her entire life. THAT angered me a little. I had to go to a child support court (not for her) and that order was brought up and the Judge said if it was a court order it’s binding. Thank God he was out of our life and she was in college at the time. Can you imagine what would have happened if he popped in after ten years of being away and suddenly wanted custody and that order was in effect? And I pointed out all the mistakes in the order – pointing out that it was full of obvious boilerplate errors – and I never signed it. The “what ifs” really irritate me. Fortunately, nothing will ever come of it.
Well..now that I’ve vented. I’ll leave my two cents:
1) Proof reading is for your protection.
2) File for divorce before your spouse does.
Re: Boilerplate Legal Documents
“I experienced the idiocy of boilerplates in my personal life“
I just wanted to point out that properly using boilerplates is not idiotic. What would be idiotic would be to start from scratch for completing essentially the same task every time. Can you imagine how much cars would cost if each and every part was built from scratch as opposed to being built on an assembly line?
The simple solution, as you point out, is to proof read everything! Too many attorneys are turning over the drafting of important pleadings and contracts to secretaries and paralegals who don’t understand the “why” of what they’re writing and don’t give a rats-ass about getting it done right. The attorney who signs it should use secretaries and paralegals only as a starting point, with all real work being done by them.
efficient
Ima Fish gets it exactly right — the intelligent use of boilerplate is highly efficient, and saves clients huge amounts of money. It’s the unthinking use of boilerplate that causes trouble.
I’ll also point out that Mike pretty much gets it backwards — most contract disputes that wind up in court are there because the contract does not spell out some provision clearly enough. In those cases, the judge will often have to get into the question of what the parties intended, not what the contract says, because the entire reason for the dispute is that it’s not clear what the contract says. It’s for that reason that there are doctrines concerning the introduction of extrinisic evidence — e.g., past practices of the parties, or generally accepted practices within a given industry, not to mention earlier drafts of the agreement at issue, communications between the parties, etc.
Ideally, a court can resolve a contract dispute without resorting to any extrinsic evidence, and no doubt there are cases where that happens. But in my experience, most contract disputes that end up in litigation are there for a reason: that it’s not so clear what the contract requires in a given set of circumstances (and, thus, the parties are fighting over competing interpretations).
Nasty Business
Was it drafted by Jones Day?