September 16, 2014

––––––––––––––––––––––– PART II ––––––––––––––––––––––– Law Can't Run on Tech Alone: How Technology Will Help – not Replace – Lawyers




In our last post we began a discussion about the relationship between legal technology and the perceived threat it poses to lawyers’ job security. We noted that claims abound warning of technological advances that will all but supplant lawyers and – gasp! – even law firms.
So what’s wrong with this notion of “robot lawyers”?

To oversimplify, the law is a human thing. Technology is a great enabler, allowing humans to focus less on the necessary cumbrous bookkeeping, administrative and practical tasks, and more on the law.
Laws regulate people (and, lest we forget, the corporate ‘person’), and are written, interpreted and enforced by people. No matter how regimented and rote, the law and its application contain degrees of reason – human reason – that algorithm cannot account for. These limitations become even more pronounced as complexity increases. And whenever reason comes into play, technology can only support – but not supplant – flesh and bone legal professionals. The real question, then, is what aspects of the law depend on human reason? Turns out, almost all.

Let’s set aside the obviously humanity-centric areas such as Constitutional and Family Law, and go straight to the heart of the beast: contract law. Technology can – and does – play an increasingly important role in contract law by enabling streamlined contract creation, tidier negotiation, intricate contract data-based reporting, and overall visibility into the lifecycle of a contract. But, in contract law as elsewhere, technology is only as useful as its use by lawyers is consistent and deliberate. Plus – and this goes without saying – it takes skilled people to create the rules, logic, and enter the data that make the software run and keep it running. 

A glimpse at four aspects of contract law should clear up any doubt as to the human nature of contract law:


Creation:

A contract’s viability depends on whether there was a “meeting of the minds” – shared intention – at creation. No shared intention, no contract. Computers cannot intend anything, and the human brain is so complex that building a computer-generated brain is highly unlikely. Technology that, for example, allows lawyers to search for best practice clauses or draft contracts using intelligent templates certainly speeds up creation where documents are inherently predictable. But creation itself depends a priori on the parties being people intending to make a deal. It depends more on the relationships in play than the signatures on the page.

Negotiation:

Computers also cannot negotiate. While they can streamline collaboration, communication and record keeping involved in the back-and-forth, negotiations involve judgments based on experience, analysis, knowledge, power dynamics, impressions and assumptions, all of which are based to varying degrees on the parties and their circumstances. The ultimate success of difficult negotiations is predicated on the parties’ trust in each other and their respective stakes – financial, emotional, or otherwise – in the outcome.

Interpretation:

When something goes wrong in contract law, arbiters look to myriad objective and subjective factors to determine the enforceability of contract terms, the intent of the parties, and degrees of liability in case of breach. In the United Kingdom, legislation requires contracts terms meet a standard of reasonableness, which, though defined by an objective test (outlined in the Unfair Contract Terms Act 1977 section 11), depends on the subjective circumstances of the parties. International law similarly seeks to define terms in sale of goods contracts by looking at both the objective and subjective intent of the parties (see the United Nations Convention on Contracts for the International Sale of Goods (1980)). Contracts are reflections of human relationships, desires, beliefs and circumstances. Courts take these human elements into account when reaching decisions as to their viability and the liabilities they impose.

Litigation:

While legal technology has proved a boon to litigation – especially in reducing the burden of discovery and review – software cannot make determinations as to a course of legal action. When harm results from an accident, a deal gone bad, or a soured relationship, attorneys use – once again! – judgment, reason and experience to weigh the options available to their clients, and they use – can you guess? – reason, experience and intellect to determine which legal arguments best serve their clients’ interests. Factors may include intangibles such as the reputation of a judge or opposing counsel, degrees of sympathy or credibility. Technology may help consolidate, organize and locate information – it may even be able to offer suggestions based on past outcomes – but it does not replace the fundamentally human element in legal decision making.

And finally, just to drive home the point, a comment about trust. While we could go on about this all day, suffice it to say that the legal profession is built on trust. Dressed up as diligence, candor, truthfulness and integrity, it is the golden thread running through the rules of professional conduct, the backbone of the profession. Lawyers maintain a duty of care to potential, current and future clients, and assume responsibility for the advice they give and actions they take. How would a program be held to account? If, as has been claimed, the advice of an attorney could be replaced by algorithm, who would be responsible? If we were to rely on technology, where would the line between being inculpated in or excused of negligence or a conflict of interest?

Technology is, in essence, an enabler and an amplifier. It allows people to create contracts or search documents at lightning speeds, and have visibility into the terms and conditions embedded in their contracts with startling accuracy. But its effectiveness and trustworthiness depend on how humans build it and put it to use. Technology is not a threat, it’s a catalyst for lawyers to return to their roots. In short, legal technology can free up lawyers’ time, minimize human error, and reduce the cost of legal work. When used well, technology means more humanity in law and more and better access to justice, not more pink slips.

September 10, 2014

––––––––––––––––––––––– PART I –––––––––––––––––––––––– Law Can't Run on Tech Alone: How Technology Will Help – not Replace – Lawyers


So it was written...

We’ve been talking a lot about the rise of legal technology (here) and how it will help corporate lawyers – and the businesses they work for – in exciting, invaluable ways (here and here). In this, the first in a two-part series, we’ll briefly explore the rhetoric surrounding the relationship between legal technology and the longevity of the legal profession.

While there are new and evolving technologies affecting all areas of law, we’ll mostly be talking about contracts because they represent tangible and meaningful outputs throughout the law. And because, frankly, they’re what we know best.

Advancements to the profession provided by legal technology have proved nothing less than thrilling (for us, anyway). As the practice of law has become increasingly bogged down in regulation, paperwork and mountains and mountains of documents, technology eases the pain of dealing with what could otherwise become convolution. In the contract world, for example, automation and lifecycle management saves lawyers significant time otherwise spent on low-level tasks, from digging through filing cabinets to drafting standard contracts. As technology becomes better at completing rule-based jobs such as easing document creation, collaboration, sharing, storage and analysis; compiling clauses in searchable libraries; setting notifications for renewal and expiry; flagging high-risk/non-standard clauses; cleaning up and recording changes made in negotiations; and accumulating and reporting on data, lawyers have more time and wherewithal to dedicate to engaging legal work. In the realm of civil litigation, e-discovery software effectively automates what were once hugely expensive, drawn-out manual discovery processes, leading to significantly reduced costs. In general, by reducing time spent (dare we say wasted?) on value-poor tasks, technology can and will lower the overall cost of access to legal experts.

Yes, we’ve heard the panicked warnings that the role of the junior lawyer will soon be made redundant by legal technology. A CNN article entitled Here Come the Robot Lawyers notes that Josh Blackman, assistant professor at South Texas College of Law, believes that artificial intelligence programs will be able to perform predictive and advisory functions “in the not-so-distant future.” The article goes on to claim, with a hint of schadenfreude, “As law firms weigh the pros and cons of using algorithms instead of lawyers, technology might even render some of the firms themselves moot.”
While it’s true that technology such as document automation, online billing and cost recovery systems, contract lifecycle management, trial support and e-discovery can and do enable the shifting of lawyers’ time by facilitating often tedious manual or rule-based legal work, this does not mean law school graduates need to look beyond the profession to pay off their student loans. In fact, we maintain that technology is a good thing for the young lawyer, the corporations or firms they work for, and the communities they serve.

So why won’t technology replace lawyers and law firms?

The answer is simple.


To be continued in Part II... 

August 26, 2014

The Contract Shield: How the Management of your Contract Portfolio Protects - or Exposes - your Business



Contracts contain a wealth of information that tell you what is going on in your business. When properly drafted, negotiated and managed, they also defend your business against risks such as liability, being underpaid or overcharged, and a wide variety of the unknown and unforeseen. In short, contracts protect against risk by giving you the information you need both on an everyday basis and in times of crisis, when speed, decisiveness and certainty are key.
And, just like the battleground shields of yesteryear, the amount of protection your shield provides depends on its construction. Where your contracts or contract data are not able to be easily drafted, negotiated, perused, approved, located, attached to triggers, organized, understood, re-purposed or analyzed, your contract portfolio shield may leave you vulnerable to risk.

Let’s look at the different ways the management of your contract portfolio might be creating unwanted exposure by exploring some different issues with your shield.

FULL OF HOLES:

If – like a sizable percentage of legal departments – you do not currently store contracts in a central, searchable repository, your shield may be full of holes. When you don’t know what and how many contracts you have, where you have them and when they expire or renew, you are exposing yourself to risk. Some legal teams still maintain a come-what-may approach to contract management whereby each lawyer sorts and stores past drafts, contracts and personal templates in their own email folders and refers to their own “best” language when drafting new documents. This means that there is very little insight into the totality of your company’s contract profile, especially where a company’s legal team spreads over offices or countries. It also means that lawyers waste time reinventing the wheel by drafting contracts from scratch or based on non-standard templates while they could save time and effort by using company-wide, tried-and-true best practice clauses. Finally, risk is created where variations exist across negotiated terms in similar contracts, as it leaves gaps in knowledge as to where non-standard/high-risk terms exist. All parts of your business rely on the strength of your contract portfolio; in order to make investments to grow your business, your financial team must be sure of what and when revenue is coming in. A contract portfolio full of unknowns means your shield is full of holes and you are left exposed to the sword.

FLIMSY or TOO SMALL:

Your shield may be too small if you have a system for organizing your contracts but it is simply inadequate to thoroughly protect you from risk. This could be because it merely stores your contracts without offering insight into the data they contain. Or that you store contracts centrally but have no way to easily search or organize them. Another example of a flimsy shield is if you currently use a contract management system that lacks some important functionalities - such as alerts at renewal time - or cannot handle the variety or complexity of your documents. This is particularly dangerous as it gives you a false sense of security.   

UNWIELDY:

To serve any purpose at all, you have to be able to use your shield. An unwieldy shield may mean that you have a system in place for organizing contracts and contract data but it is not user-friendly. It could be that in order to draft contracts your system requires expert technical knowledge or time consuming data entry. Cumbersome systems inevitably lead to improper or insufficient use. An unwieldy shield may also result from a management system that does not produce trustworthy data. If you cannot trust the data 100%, you are unable to quickly, confidently defend yourself when the accuracy of your contract data matters most. 
In order to make the best, most informed decisions for your business, not only must your contracts be watertight, you need a contract management system that comprehensively protects you. A strong, resilient, manageable shield is one created of a coherent contract portfolio that is centrally stored and offers complete insight into and management of the lifecycles of your contracts. 

August 19, 2014

Resistance is Futile: Why General Counsel Must Embrace Technology

Time to get your head out of the sand - legal technology is here to stay and will transform your practice for the better

The legal profession is steeped in tradition and history. In fact, the law itself tends to respond to contemporary problems by looking back, and legal professionals are no different. If we should believe stereotype – and many firsthand accounts – lawyers tend to resist change tooth and nail. After all, they were bred – and are handsomely remunerated – in an age-old institution that lauds ethics and intellect, not innovation and reinvention.

A recent Law Practice Magazine article, Why Do Law Firms Resist Innovation? 10 Reasons, observes, “What passes for a radical change in a law practice—a new training program, some alternative billing, an extranet—is old hat in other markets.” As a profession that sticks to the beaten path, with a generation of young lawyers that has come to expect a few years of filing, drafting and proofing before they begin to tackle stimulating legal challenges, it is no wonder so many legal teams are hesitant to embrace legal technology.

But a general reticence to change doesn’t mean change isn’t coming. Indeed, an article published earlier this month in Law Technology Today claims a legal technology skills audit – in which legal teams will be assessed on how well they use technology to complete legal tasks – is on the way. The reason for this is clear – when considering the bottom line, taking advantage of new products in the legal sphere is a no-brainer.

Document automation and contract management, for example, would allow those document-crunching young lawyers to spend more of their time and competence on higher-value tasks. According to What Really Should Be in General Counsel's Skill Set published a few weeks ago in Law Technology News, these are among the technologies general counsels must explore in order to bring their departments into the 21st century. We couldn’t agree more.

Automation turns what were once manual, labor-intensive legal processes – such as locating a specific non-standard clause – into a simple one-click search. Document assembly software may especially suit large law firms, where the quantity and variety of contracts demand a streamlined, user-friendly approach. For general counsel of large corporations who potentially deal with thousands of contracts, software that combines document assembly with a suite of intelligent contract lifecycle management tools will prove essential in bringing the legal department up to speed with (if not light years ahead of) the rest of the company. Standard contracts can be pre-approved, so salespeople can see a contract through from beginning to end, avoiding bottlenecks in the legal department. With Contract Lifecycle Management software, not only will all of your contracts and standardized contract terms be stored in a central repository, but you will have the ability to search, receive notifications for renewals, be sure you’re sticking to negotiated terms, and analyze changes made during negotiations, among other things. Technologies like these ease the entire lifecycle of the contract, while providing invaluable insight into the nature, value and strength of the contracts upon which your business depends.

With features like this, it’s no wonder investing in legal technology is more than just a rising trend. Indeed, the abovementioned LFT article insists that “Not having the basic knowledge of the automation tools that are used or could be used in the department is a throwback to the old days…Today, as several states have made clear in their ethical rules, it borders on malpractice.” Clearly, hiding one’s head in the sand is no longer an excuse. As the rest of the corporation takes advantage of technologies providing management of and insight into information affecting the business, legal has no choice but to keep up.

August 14, 2014

Contract Negotiation On-Demand: Introducing the Exari Negotiator Ribbon

Exari's Negotiator Ribbon takes state-of-the-art negotiating and makes it even easier.



We take pride in Exari’s reputation for being responsive to the ongoing feedback we get from our clients. One of the newest features of our Intelligent Contract Management software, the Negotiator Ribbon, is the direct result of this input and represents yet another step in our mission to help organizations streamline, manage and track the lifecycle of their contracts. 

The Ribbon works in conjunction with Exari’s existing RoundTripping™ functionality, a feature of our Contract Management software designed to streamline contract negotiation by making it easy for users to compare contract versions and analyze the differences between them. 

Catering specifically to the needs of the negotiator, the Ribbon allows users to access many of the functions of Exari Contract Management software straight from the comfort of Word. Essentially, it gives clients the ability to add a new “ribbon” containing specialized, flexible action buttons to their Word Menus. When the ribbon is turned on, negotiators can view, compare, track, edit, save and efficiently manage versions of contracts – whether or not they were created within our Contract Management software or on other people’s paper – without ever leaving Word.

The Ribbon saves changes to and versions of contracts in negotiation to the Contract Management repository, where those changes are tracked and stored. It also allows users to access clause and document libraries directly from Word, further easing the negotiator’s experience. 

To learn more about the Negotiator Ribbon or any of the other Contract Management tools Exari has to offer, click here.

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