Have you ever wondered where the term “boilerplate” comes from?
In today’s blog, LESA’s Distinguished Adviser, the Honourable J.E. Côté, sheds some light on the word’s etymology, explains why you should use boilerplate language with caution, and offers tips on how to develop your own collection so that the best boilerplate clauses are available at your fingertips when you need them.
Enjoy!
The word “boilerplate” comes from the days of high-speed printing presses for books or newspapers. How could printers keep and later reuse typeset materials? They would make a single-piece metal cast of that type. For a high-speed rotary press, these sets of words and pictures ready to print were curved half cylinders. They looked like a piece of curved plating ready to assemble into a boiler. That’s why printers and lawyers call standard wordings boilerplate.
A lawyer drafting a contract, a lease, a mortgage, a trust deed, or other legal document, rarely builds it all from scratch. (Nor do engineers often design right from scratch.) Usually the lawyer copies parts from previous documents used for other clients. The lawyer may get those from a published book, internet site, or from the lawyer’s own collection of previous documents. (They are often called “precedents” – but the term is confusing, as it also suggests previous court decisions.)
There is a good and a bad way to reuse such previous work. Simply selecting one or two previous contracts (leases, mortgages, etc.) and applying them for this new transaction is dangerous. There are many reasons for that, including poor quality, obsolete precedents, or ones unsuitable for your client or transaction. Another danger is that precedents often favor one side, possibly not your side.
However, there are many general types of clauses that necessarily recur in a host of contracts, leases, or other documents: for example, clauses near the end providing addresses for serving notices or clauses allowing assignments or succession of interests. It is rare that the particular circumstances of the document at hand require much, if any, change in such standard clauses.
These standard clauses are what we now call boilerplate.
Why You Should Organize Your Own Boilerplate Collection
Such standard clauses are easy to use. The only really serious judgments for you to make are which of them to include in a new document you are drafting. But that task is risky unless you have (and keep adding to) a good full checklist of possible boilerplate clauses to select from.
So an up-to-date collection of such standard clauses yields huge benefits. First, it (or its index) provides that checklist of possible boilerplate clauses. That way a useful standard type of clause will not be overlooked. (In the interim, as a first stab at a checklist, look at a book or website, and compare its boilerplate to the boilerplate in the fullest, most elaborate contract or trust deed you can lay your hands on.)
Second, if you collect a number of examples of clauses on one subject (such as mode of payment), you will notice that some are much fuller than others on the same topic. They cover problems that others omit, even though all seem to have the same general aim.
So if you merely collect samples of (say) leases, you will miss that focus on individual clauses. You may well copy from previous leases some standard clauses (boilerplate) that are far from the best standard clauses available.
But if you make an organized collection of various standard clauses on a number of topics, after time, you will find one version of a certain standard clause that contains clear improvements found in no other examples.
If you keep weeding such a collection, using the best possible version of some standard clause costs you almost nothing. Negotiations rarely focus on standard boilerplate clauses. Do most lawyers do more than skim them?
Therefore, if you draft many documents, you need a collection of standard boilerplate clauses. And you need to keep updating it as you run across other possible clauses or versions of them.
How to Get Started on Your Collection
For a long time, it was hard to find any published book containing such standard clauses. But there is one English one now. See Christou, Richard, Boilerplate: Practical Clauses (Sweet & Maxwell, 4th ed. 2005). You will have to examine that book and decide whether it is adequate for your needs. Even if it is, your own law practice may well require some standard clauses not found in that book. So your own or your firm’s own collection of extra clauses is still useful.
I have also found a useful article with examples of boilerplate on the internet. It is by the University of Adelaide. Presumably there are many others there too.
Maintain Your Collection Electronically
Your boilerplate collection is best kept on a computer. That way, later it will be easy to print out a hardcopy version of it or a number of its clauses. And the computer version will always be available for quick cutting and pasting.
Besides, even the best hardcopy book will require you to retype and proofread every clause taken from the book to adapt it for a specific contract. Even if you manage to scan a clause into your computer, proofreading is still necessary. (Scanners often mistake one letter for another.) And that process is slow. Yet the boilerplate part of drafting is often properly left to a late stage. By then deadlines may loom, and you and your clerical staff may be tired.
Therefore, you should have a collection of standard clauses on a computer, ready to cut and paste into a new draft document. That means the clauses must be machine readable. A mere picture of them will not do for drafting purposes. For one thing, even if a clause’s wording is excellent, it often needs minor changes, such as changing “his” to “her” or inserting addresses.
Build Your Boilerplate Collection
How can you or your firm build up a good collection of standard clauses? Here is a list of steps to create a workable collection of standard clauses:
- Collect what complete contracts your firm already has, and break them down by individual standard clause topic (e.g. notice clauses, confidentiality clauses, interpretation clauses).
- Enter the various clauses into a computer in machine-readable form (not as mere images).
- Arrange them by subject.
- Create an alphabetical index of subjects.
- Find and examine large, well-drafted legal documents from elsewhere, and look over their standard clauses. Select those clauses that are novel or seem better drafted than the usual versions. Good sources for such documents are filings with a securities regulator and prospectuses or information circulars sent to shareholders or prospective purchasers of shares or bonds. Typically the information part of such a document attaches as appendices a number of contracts or trust deeds in full. They are all free, and most are probably accessible by computer via securities commissions. Anyone will get a number of them automatically simply by being a shareholder or by purchasing newly-issued shares or bonds. (Holders of mutual funds can probably elect to receive them.) Add individual clauses from them to your computer file of standard clauses.
- In you practice, keep your eyes open for all large, well-drafted legal documents, and skim them for novel or good standard clauses. Add such individual clauses to your computer file.
- Go through all the examples of one type of standard clause in your computer collection. Delete the examples of each type that (by comparison) seem inferior.
- For each clauses topic, try drafting one or two composites, incorporating all the best features of the examples you have.
- Update and revise the index.
Using a collection of standard clauses yields a final bonus, quite apart from better drafting. The collection will let the senior solicitor do only the work that requires experience and judgment. He or she can delegate a lot of the more straightforward work to a junior.
Honourable J.E. Côté
LESA Distinguished Adviser
