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Boilerplate Language – What is it Good For? (Absolutely somethin’?)
When you think of a document drafted by an attorney, what do you expect? Crisp, clean prose that conveys its meaning in as few words as possible? Probably not. Large walls of incomprehensible text that no one (maybe not even the lawyer) has read carefully? Sounds more like it.
In the legal profession we refer to these regularly used blocks of text as “boilerplate” language (although boilerplate can also refer to blocks of frequently used computer code). The term boilerplate comes from the similarity between the curved steel used to make boilers and the curved plates that printed newspapers in the early 1900s. Boilerplate legal language often covers repeatedly used topics like the court where disputes will be resolved or indicating that an agreement may be signed electronically.
While boilerplate can be a handy tool to insert your favorite attorney’s fee provision into a contract, it can be used as a crutch. This is particularly problematic when it makes a document internally inconsistent because it uses different terms, or worse, outright contradicts language elsewhere in the document. Boilerplate also tends to be passed down from prior document to current document without any refinement for the current purpose. Like a folk tale that has characters added with each generation’s retelling, this results in the bloated text we expect to see in a legal document.
A particularly annoying example I run into frequently are the boilerplate general discovery objections at the top of requests made in discovery. These often amount to nothing more than a litany of things that I might, or might not, object to, regardless of the substantive context. And yes… I admit I have regularly included these in my own response.
I recently ran across an article written by Shannon McClure and Kristen Ashe of Reed Smith for the Legal Intelligencer. In it they do a great job of highlighting how the Federal Rules are starting to prohibit these types of general objections. That led me to ask, why do I do this? What do I gain by saying I object to a request that seeks an attorney-client privileged record when I go on to say in the same breath that I do not have any documents? How can a document I do not have be privileged?
I have already made carefully reviewing and reducing boilerplate a part of my contract review process when I can. Unless I am under restrictions not to make too many edits (either because it blows up a deal or the client wants me to limit the time I spend), I try to either streamline language as I can or to use my own boilerplate that has already been streamlined. I think it’s time to do the same for my discovery objections.
Next time you ask your lawyer for a document, take a look and see if they have tried to cut down on the boilerplate. And don’t be afraid to ask whether that “henceforth heretofore” is really necessary.