“What the heck is a ‘precedent’?”, I remember thinking on my first day when I heard corporate colleauges—who clearly weren’t invoking the caselaw principle every law student knows and loves—refer to them. I quickly learned, however, what most of you already know: a “precedent,” in firm jargon, simply means a past example. A similar work product that can be a guide, a roadmap, or—in many cases—a first draft for whatever you’re working on (as we talked a bit about in our “Staffing Meeting” post).
I remember being surprised—and, I’ll admit, a bit disappointed—when I learned how heavily Biglaw lawyers rely on precedents when doing their jobs. (I think I had this idea that lawyerly drafting involved starting with a clean sheet of paper and filling it—from soup to nuts—with the brilliant fruits of one’s own mind.) But I quickly learned why. As a Biglaw associate, a good precedent is your best friend.
Precedents Are Key
It’s not just about convenience. (Although, the convenience is huge. If drafting a merger agreement is running a marathon, a good precedent is like a head start to mile 20.) No one comes to Biglaw—and pays Biglaw rates—for simple, straightforward work. (At least, not usually.) The work is almost always complicated. And often high risk. And the documents that govern the transactions and cases you’ll be working on are commensurately complicated. There are innumerable details reflecting language that is crafted just so to respond to a particular concern or a past case, dispute, or regulatory issue.
To do your job well, even working from a good precedent, you’ll have to engage with each and every one of these details along the way to ensure your documents are well tailored to your case. But if you were writing on a clean slate, instead of leveraging precedent language that incorporates the prior learning and past experience of your colleagues, it would be nearly impossible, on any reasonable timeline, for you to deliver work of the highest quality to your clients. Your best work necessarily reflects the institutional memory of your firm—a memory that is broader and deeper than you might expect.
Never assume that what you’re being asked to has not been done before. In nearly every case, someone at your firm will have done a task similar enough to what you’re being asked to do that their work can facilitate and improve your own. Make your life easier—and ensure that your clients are receiving the very best work product you can offer—by standing on the shoulders of those who came before. It will help you work efficiently. It will help you avoid mistakes. And it will permit you to spend the maximum amount of time possible doing original, greenfield thinking on how the unique interests of your client in your specific context need to be reflected in a document, as opposed to reinventing wheels.
So how do you go about finding the right precedent (or collection of precedents)? It begins with a strong 360-degree understanding of the matter (e.g., the interested parties, their commercial objectives, deal structuring) and the specific needs and interests of your client. Think about what your client is trying to achieve with the document in question. Identify their chief concerns, and consider the features of this particular matter that might drive the final elements and structure of your work product.
Once you have a handle on those things, you need to find a document or set a documents with a critical mass of overlapping features and attributes that you can use to guide your drafting, beginning with those features and attributes that are most essential to your client’s interests and that might be distinguishing features of your matter (i.e., be responsible for your document deviating in form from a prototypical example of that document type). For example, if you’re working on an acquisition that contemplates a particular type of equity rollover, you need to find a good precedent that contains that sort of rollover to see how it’s done, whether and how it affects the structure of the broader documentation, etc. Or if you’re drafting a share purchase agreement to acquire a highly regulated business (e.g., a telecommunications company), your precedent for the reps and warranties needs to come from an acquisition agreement for a similarly regulated target (therefore addressing issues of regulatory compliance, licensing requirements, etc.), regardless of how much you liked the drafting of the reps in the SPA you just finished for the purchase of a home improvement retail chain.
Believe me, trying to reverse engineer an ill-suited precedent to shoe-horn in/shuffle around elements later on is both difficult and risky. Before you put pen to paper, commit to finding the right precedent set and reviewing it carefully. It’s one of the most important things you can do on behalf of your client.
Given the importance of precedents, you’d think it’d be easy to find them. That firms would be highly invested in ensuring that access to the braintrust—the all-important reserve of past experience and prior learning—is as unfettered as possible. Think again.
Never assume that what you’re being asked to has not been done before. In nearly every case, someone at your firm will have done a task similar enough to what you’re being asked to do that their work can facilitate and improve your own.
It can be immensely difficult to find what you need inside of even the best Biglaw firms. Many firms don’t have a particularly functional precedent database for most of their practice groups, and even the most community-minded lawyers are often simply too busy to regularly contribute to a well organized knowledge retention/management effort—at least in the labor-intensive form that most firms’ current technological infrastructure requires. Firms’ electronic search tools are often rudimentary at best, and finding peer-to-peer guidance can be a challenge because the firm’s expertise is dispersed among hundreds, if not thousands, of lawyers and, given Biglaw turnover rates, there’s a decent chance the expertise you’re seeking may have walked out the door years ago.
(Author’s note: This is actually a problem I’m passionately interested in solving and am working on a separate project to create some of the tools and technical solutions that would allow a firm to more effectively manage and curate its internal braintrust. I’m always interested in hearing about the experiences and technical challenges faced by other Biglaw lawyers, so if you’re someone who is interested in these sorts of problems and likes thinking about potential solutions, please reach out—I’d love to chat. Additionally, I’m in the throes of a search for the right a technical co-founder to help me launch the business. If you happen to know of someone that you think would be a good fit for this sort of project, please let me know.)
In the absence of better tech that allows you to directly and more effectively source your own precedents, let’s talk about how you can go about locating the rights precedents at your firms.
(1) Ask your supervising lawyer(s). Your first step should always be to ask the partner and/or senior associates on your matter for two important reasons. One, their familiarity with the matter and greater experience in practice will make them best placed to recommend the right starting point. Two, they’re the ones reviewing your work. If they expect it to look a certain way or to follow a certain structure—believe me—you want to know that from the very beginning.
(Pro tip: When it comes to soliciting precedent guidance, there are more and less effective ways to go about it. As we noted in our “Staffing Meeting” post, you want to convey an impression that you’re trying to be helpful, not that you want them to do your work for you. So I’d recommend framing your requests along the lines of: “Do you have a preferred precedent for this sort of agreement/document?” or “Is there a particular precedent you’d like me to follow?”.)
(2) Conduct electronic searches. Depending on your firm and practice area, there may be a precedent database for the sort of document you’re looking for. Make sure you’re familiar with your firm’s available resources, and use them as your first port of call after your seniors. Additionally, it’s usually possible to also search your firm’s full, unstructured collection of documents directly through whatever search tools plug in to your firm’s DMS. These searches can be difficult and slow going for a host of reasons (e.g., Boolean terms and connectors searches return too many or too few results, firms don’t do a good job of capturing the metadata needed to effectively search for documents based on document or deal attributes), but what you need is usually in there somewhere, if you commit yourself to finding it.
(Pro tip: Juniors often spin their wheels for too long with these frustratingly limited search functionalities before availing themselves of options three and four below. It’s important that you do your diligence so that you know what you’re looking for and what’s readily available. But once you have a basic handle on the lay of the land, I’d recommend plowing ahead to option three before circling back and hammering away further at the electronic search process. The same goes for option four, but you’ll want to a good bit more digging on your own, depending on how widely distributed the blast email will be, unless it’s a time-sensitivity thing.)
(3) Targeted asks of colleauges. Your colleagues are great resources. They may not have all the background on your matter like the relevant partner or senior associate, but they will have a host of their own matters and experience to draw upon. Once you find out when you’re looking for, ask around. If you know a particular person is likely to have relevant expertise, it makes sense to start there. Otherwise, I’d recommend starting with those colleagues that you’re closest to (likely at your level) and working your way out and up. (Your fellow juniors may not have exactly what you need themselves, but they may be able to direct you to a particular senior who will.)
(Pro tip: As addressed below, most firms have email lists for different segments of the firm (e.g., practice groups, offices). As part of your precedent search, review any precedent requests that you’ve received by email in the past. If anyone has requested similar precedent guidance, see what their request turned up.)
(4) Blast emails. If all else fails, you can just ask lots of people all at once by sending out a blast email to one of the aforementioned email lists. Again, it might make sense to start small (e.g., the associates in your group) and work your way up and out. Just make sure you’ve done your homework so that you can make a clear ask for something specific and you haven’t overlooked something easily accessible. (Blast emails are a powerful resource for beating the bushes, but it’s not a good look to send emails to hundreds of busy people (including your bosses) looking for something you could reasonably be expected to find on your own. Don’t be that junior associate sending an “all.lawyers” email looking for a copy of an escrow agreement precedent where Bank of America was the escrow agent. It’s funny, but not funny—if you know what I mean.)
Finally—and this is sort of a global pro tip—if you find a good precedent through any of the above avenues, poke around in that directory. Someone created that document, and before they did, odds are they were in exactly the same boat you’re in now: precedent hunting. And even though it is a disaster for the organization of your firm’s DMS, folks tend to save new copies of the precedents they find into the directory of the matter they’re currently working on so that they have everything they need in one place. Which means that you can often find a treasure trove of precedent research waiting for you. Of course, you’ll have to bring it down yourself (translation for the newbies: do your own research to ensure nothing was missed and, in particular, pick up new relevant precedents that post-date when the trove was created), but it can be a massively valuable short cut.