C. Precedent Development

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 306-309

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The documents in a DM with some of the highest "reuse" value can be precedents, which are the agreements and litigation documents drafted by lawyers on behalf of clients. Precedents - broadly defined - can include a variety of documents: model agreements or pleadings that, over time, have been developed and annotated to include the "ideal" or model document; sample precedent agreements or pleadings from past transactions or lawsuits; clause banks of boilerplate provisions or

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important contractual provisions; checklists for typical transactions (e.g., for the purchase or sale of a business) or lawsuit procedures (e.g., a trial preparation checklist); transaction opinions; and deal closing documents (that many firms are now digitizing once the deal has been completed to make the full text searchable and easily accessible). Precedents, therefore, are an example of the core "explicit" knowledge or intellectual capital of a law firm (compared with the equally if not more important "tacit" knowledge of the law firm, being the knowledge or experience resident with the brains of firm members).

Even though there is typically no standard precedent perfect for every possible legal situation, many precedents can be reused and adapted for future transactions. The recycling of agreements as precedents has in fact been recognized (and implicitly endorsed) by the Supreme Court of Canada in the following comments of Mr. Justice Binnie:

Recycling precedents is the life-blood of corporate law practice. A document prepared for Client A is part of the lawyer’s work product and may go through numerous iterations in the service of other clients. The practice of law would be hopelessly inefficient and costly for clients if transactional documents had to be reinvented rather than customized.²¹Precedents also help define a baseline standard of content to address the typical issues that might arise in connection with the issues for which the precedent was designed (for example, a model share purchase agreement may contain pages of sample representation and warranties clauses, not all of which might be needed or be relevant for a particular transaction in the future). However, it is easier to catalogue the most likely clauses in the model agreement as a "checklist" of issues for the drafter to consider and to later remove those that are not needed when the model document is applied to a particular transaction.

Although some lawyers are very...