As the CEO of a company selling software designed to eradicate “cut and paste” errors in documents, I’m accustomed to seeing examples of mistakes in paperwork from around the world and at every level of endeavor. Still, it’s a shock to see that the United States Department of Justice, “the largest law firm in the world,” made a pretty significant cut and paste  error in a headline grabbing case.

In its 2012 motion to seal the search warrant for James Rosen’s email account at Google, in a case that focused on reporting North Korea’s intentions in a verbal mini-brawl the substance of which the public no longer recalls, the lawyer filing on behalf of DoJ as an officer of the court affirmed a completely unrelated and demonstrably false “fact” supporting the need for extended secrecy

Holder Rosen Aff Ex B

“Cut and paste” strikes again.

Leaving aside the controversy swirling around the James Rosen/Fox News case, to include a presumably unintended reference to fugitive bombers as one of four “fact” paragraphs supporting a sealed search warrant ranks high in the pantheon of document errors. It’s particularly notable given that the Justice Department claims 112,000 employees, more than 10,000 of whom are attorneys. One would expect one of them would have proofed the document before the Attorney General approved filing and later publicly associated with it.

Such is the nature of cut and paste errors.

They are insidious, difficult to catch and nearly impossible to root out. I’m reminded of the story told by a friend, a guru at the intersection of law and technology. Faced with a difficult divorce where every iota was bitterly litigated, he settled the last, most contentious item with a paragraph on custody of the dog. Much later, he realized that every divorce order that followed from his office for months thereafter had included the same provision, whether or not later couples had a dog to argue over.

Acceptable Error Rate?

While there are no statistics yet on the prevalence of errors in legal documents, the National Institutes for Health estimates that nearly one in four medical records includes a material error that could affect patients’ treatments. In presentations to legal audiences, I ask, “What’s an acceptable error rate?” After a few minutes of discussion that too often sinks to solipsism, I like to make it more tangible with, “What’s the error rate you consider acceptable at your doctor’s office?”

By the way, what’s your answer to that question? Should your clients expect and accept any less than perfection?

We’re all familiar with reports of wrong client names, wrong property descriptions, wrong venues and wrong terms that too often make it through layers of vetting. At TheFormTool, comments from our lawyer customers support my belief that material error rates in final documents range from 25% to more than 60%. Rates seem higher among Americans and interest in the area seems lower than in other countries.

When called on the carpet by their clients, lawyers too often excuse an error as “just a typo.” As a former heavy consumer of legal services, I can confirm that those “typos” discovered in what are intended to be final documents do immense damage to client trust, chipping away at the confidence that forms the foundation of the client/attorney relationship. A single occurrence can destroy half of a client’s confidence previously built up, sometimes through years of work. Obviously, too many whacks with a 50% axe fells even the sturdiest oak.

All current word processors include features to prevent mistakes in documents. The market offers a dozen tools of varying price and complexity to make cut and paste a practice of the past. The best of them do a great job of eliminating errors, speeding processes, reducing stress, and cutting costs. In a recent survey, 81.4% of TheFormTool’s owners describe reducing errors as a “key benefit” of their usage. That speaks of strong interest on the part of professionals to address the issue.

Partially due to impressions propagated by LegalZoom® and other new legal services providers, clients are starting to view documents as merely a free byproduct of the expertise or advocacy they hire attorneys to produce. Courts are starting to raise their expectations for lawyers’ work product. Canadian courts have begun to impose the costs of documentation errors on the professionals who make the mistakes. Those pressures will accelerate adoption of modern technology and professional practices.

The day is near when the failure to use state of the art document assembly tools will be viewed as antiquated, unprofessional, and less than a best practice.

Even by “the world’s largest law firm.”

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