A postscript on form files

My July 22 post, Burn your form file, generated more dissenting comments than any prior post on this blog. I'd like to offer a couple of postscripts: one from me; the other from Bryan Garner's Redbook.

1. The suggestion, "Burn your form file," is hyperbole, an exaggerated statement used as a figure of speech to drive home a point. I see too many young lawyers who tackle every writing project the same way: find a form and adapt it—without questioning whether the form is any good. I think most lawyers would be better off in the long run weaning themselves from their forms and learning how to write for themselves.

2. Here's what Garner says about using form books for various legal documents:

• Contracts: "Experienced lawyers know that forms are a better guide to content than they are to form. They will help you think through the kind of issues that you will need to address, but they will probably be of minimal value in wording the provisions. Inexperienced lawyers sometimes slavishly follow forms (commercial or in-house) and end up not thinking through the issues as penetratingly as they should. Or the lawyers don't stop to think through how a particular boilerplate provision might affect a client with specific requirements and needs." Redbook § 20.3(e).
• Motions: Garner cautions against overreliance on forms. "[M]any cut-and-paste forms are time-wasters. If you do not take the time to redraft the form to fit the particular facts of your case, you may inadvertently leave in irrelevant material." Id. § 18.3(c). But he recommends as "excellent models" the appendix to the Federal Rules of Civil Procedure, Michol O'Connor's Federal Trial Forms, and an example in his own book, The Winning Brief. Redbook § 18.4(a).
• Pleadings: "Consulting forms may be a good start. But whether the forms are commercial or in-house, they are only general guides. The facts will always be different. Laws change; so do courts' pleading requirements. And older pleadings are typically written in stuffy legalese. Draft pleadings in plain English, and tailor them to the facts of your case, the specific claims, the current state of the law, and the local rules." Id. § 17.3(f). "Standardized forms are most helpful as formatting templates but should never be used as fill-in-the-blank pleadings. In other words, do not follow an illustrative form mindlessly; make certain that the form is fully tailored to your facts." Id. § 17.4(a). Garner recommends as models the appendix to the Federal Rules of Civil Procedure, Wright & Miller's Federal Practice & Procedure vol. 12A, app. D (2001), and Michol O'Connor's Federal Trial Forms.

Incidentally, if you're wondering whether you should buy a copy of Garner's Redbook, the answer is "yes."