Boilerplate

We lawyers deal all the time with twenty-plus page documents. In different matters, parties care deeply about certain clauses and provisions. Which ones are hotly contested vary from matter to matter. The parts of a document nobody cares about we call "boilerplate" -- just any old filler terms there, as long as they're reasonable. I don't have a clue where the term comes from.

When I was working at a venture capital company I would read these 8 or 10 or 15 page Preferred Stock Purchase Agreements and think, what is all this eyewash? All the terms except the price and certain of the rights of the preferred stockholders looked like the most boring gibberish to me. I was in law school at the time, though, taking corporate law and tax and advanced business associations, and with every case I read, I began to see why the boring gibberish clauses mattered.

After two years of practice and a lot of bankruptcy cases where it's my job to read boxes of transactional documents looking for mistakes to find a handle by which the company who can't pay the money they promised can invalidate that promise, I am getting to a point where I don't find so much that's boring in these long documents. (Don't get me wrong -- there's still a LOT I don't really understand, and my eyes still glaze over, and depending on the document there's still plenty of clauses whose purpose or import isn't particularly clear to me.) I know now that even the boilerplate can give rise to horrible hypotheticals, and I'm developing a personal memory bank of examples of how this clause or that clause changed the outcome of a particular case.

There's still a lot of language that doesn't matter much -- a lot of ways to say the same stuff. Some complaints begin with "NOW COMES the Plaintiff, by and through his attorneys, and prays....." and some just say "Plaintiff complains against Defendant as follows" and some say it other ways. We file a zillion notices that need to say, look, this motion will be heard in court on X date; if you don't like it, you should show up then, and if you want to file something saying why you don't like it, you've got to do it by Y date. Who cares which way it gets said?

I do. I know it means I'm turning into a real lawyer. I say that with trepidation. I am taking over some cases that were run by a departing attorney. And I'll be working with her assistant. So I'm inheriting her forms. And I don't like them. I just took a draft of a notice of hearing and made a bunch of little changes -- get rid of these hyphens between these words, put a comma here, change this word, this phrase shouldn't be in all caps. Just wait until I start playing with the phraseology of the boilerplate. I'm actually itching to make it a little more readable. Why does this kind of thing happen to lawyers? We get so used to scrutinizing every substantive word that we can't turn the habit off and obsess over the right way to say something that can be said just fine in a dozen ways.

Comments

[ijk]

Boilerplate: [from some site several months ago when a related term annoyed me]:

In the latter part of the nineteenth century, news agencies and syndicates in the United States would regularly send out material to the many small-town papers across the country. To make it as simple to use as possible, the text was supplied ready typeset on mats (short for matrices), squeezed paper moulds created by stereotyping, from which type could be cast locally. All the editor had to do was slot it into the right place on the page, in the process often brutally trimming the text to fit the space.

These presumably reminded printers of the standard-sized metal plates that were supplied by iron foundries to riveters constructing steam boilers.

Because the syndicated material was often third-rate filler stuff, or semi-disguised advertising puffs, boilerplate quickly came to mean hackneyed or unoriginal writing, a meaning very close to that of stereotypeitself.

The same term was taken over by the legal profession (only from the 1970s according to the citations I’ve seen, but it is almost certainly older) to refer to the standard clauses in a contract, which didn’t change often and which could similarly be slotted into place in the text.

[Christine]

I am waiting for the software that translates boilerplate into layperson english. I on occasion attempt to read law cases just for fun, to see if I can actually figure out what the case was about and determine the particulars. Better yet, someone should develop software that translate congressional bills.