Forms Over Substance

Legal forms abound in almost every area imaginable — business formation, contracts, estate planning, real estate … . With everyone having access to legal forms, do you even need a lawyer? Are forms over substance enough?

Forms are never enough. A good lawyer is critical, unless of course you don’t mind stepping into the quicksand of ambiguities, liabilities, disputes, and destruction. Forms over substance is dangerous territory and a good lawyer can help steer you clear of the dangers.

Aren’t these forms prepared by lawyers?

Maybe, maybe not, but they could never contemplate any one person’s individual needs and goals, after all, the drafter does not know you or your situation. Unfortunately, I’ve had a number of clients who came to me after they started the slow sink into the quicksand. A number of them used a company for which they paid good money to form their company and get it up and running. I pulled them out of the quicksand and brought them to safety, but their issues originated with a company who used forms, and this company did not employ lawyers — it’s called practicing law without a license.

Don’t lawyers use boiler plate language?

Absolutely. For example, certain provisions are required for the protection of all parties to a contract and can only be written a few different ways. These provisions are called boilerplate clauses and they not only offer protection for the client, but they save the client money since they do not need to be drafted from scratch. Some of these contract clauses include:

Governing Law
Notice
Waiver
Assignability
Binding Effect
Severability
Headings
Merger

These types of boilerplate clauses are typically found in the Miscellaneous section of most contracts. Because there are only so many ways to say the same thing, that language is not even copyrightable. However, boilerplate clauses do not fit every situation and may prove harmful. It’s important to know which to use and which to revise to fit a person’s particular circumstance.

What type of forms do lawyers use?

I can only speak for myself. I use a form that I have either created myself or is created by a committee of lawyers that provides for the statutory requirements as well as potential issues I’ve seen throughout my legal career, and trust me, I’ve seen a lot. These forms provide a base that saves my clients quite a bit of money, but is definitely not the be-all and end-all. When I use a form, I revise it to incorporate the needs, objectives, and goals of my client. As a lawyer who handles a lot of business and estate planning, I ensure that my client’s succession planning is addressed in both the business and estate planning documents. Each of my client’s welfare and peace of mind comes first — always.

Forms Over Substance