LEGAL BOILERPLATE: CUTTING AND PASTING IS NOT THE SAME THING AS DRAFTING
Editor Note: This is the first blog post in a series on using boilerplate in legal practice. I plan to discuss the pros and cons of using boilerplate. My hope is to help attorneys learn to use it correctly and to make both judges and clients happier.
Since the dawn of mankind, lawyers have been searching for ways to sneak clauses into agreements. Once only the domain of large firms and corporations, recent advances in information technology have made it easy for all attorneys to insert pages and pages of irrelevant clauses into otherwise straight forward agreements. Cloud computing has made it possible to access those irrelevant clauses nearly anywhere on earth. Our time may be seen as the golden age of poorly written boilerplate contracts.
Using boilerplate by itself is generally a bad idea. For example, in Kim v. Westmoore Partners, Inc., 201 Cal. App. 4th 267, California’s Fourth Appellate District Court sanctioned an attorney $10,000.00 for boilerplate misuse. findlaw.com noted “[t]he judges were understandably peeved when the offending attorney simply copied – almost verbatim – another brief that he had previously filed with the same court.”
The take away is this: If you are going to use boilerplate, tailor it to be relevant. Cutting and pasting is not the same thing as drafting. Judges know. Judges read. Judges sanction.