Contract analysis
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Luminaries, thought leaders and digital prophets will tell you that machines can now read and annotate contracts, such that yon poor legal eagles are no longer needed and will shortly by out of a job.
- Besides manipulating the physical world, machines are also increasingly encroaching on tasks that, until now, have required a human ability to think and reason. In the legal sphere for example J. P. Morgan has developed a system that reviews commercial loan agreements, it does in a few seconds it does what would have required, they estimate, about 360,000 hours of human lawyer time.
Sounds fantastic, doesn't it? Preternaturally intelligent silicon minds scanning and processing gigabytes of diverse text in an instant and analysing it for all material quirks and issues, like Zen from Blake’s Seven.
Data extraction tools
But let’s just stop and consider what is actually going on here. J.P. Morgan reviewing, presumably tens and probably hundreds of thousands of commercial loans. (I am allowing JPM’s legal eagles, for whom I have great respect, ten hours to review each loan.)
These loans will, to ber sure, be lengthy and rendered in the hideous, overwrought prose of the banking lawyer, to be sure, but — with template variations and periodic flourishes of flannelry, every one will be the same. There will be a basic, predictable, schedule of customer details and economic variables — dates, amounts, currencies, rates, and optional elections — but the legal terms of the loans will be more or less homogeneous.
Processing thirty thousand tables of variables would, doubtless, take a working lifetime of person hours, and would drive each of the poor saps assigned the task to distraction, but to be clear there would be absolutely no judgment, let alone legal acumen, required to process and extract this information.
Assigning a lawyer to this task would, in any era, have been an act of unusual economic folly and cruel punishment on the lawyer. It is not news that difference engines can process information better than the meatware. JP Morgan’s sensible use of information processing power is no horseman on the ridge.
Contract review tools
More potentially transformative are the emerging range of artificially intelligent contract review tools on the market. These promise to take a contract draft received from a counterparty, and analyse it against a pre-defined playbook, together with other examples which the machine has already learned from, mark it up, and return it for completion of the negotiation. A common subject for these contract review tools is confidentiality agreements.
But even here the technology disappoints and, in predictable ways, makes an existing problem even worse. It is worth investigating why.
The problem statement
Start with the problem the contract review tool is designed to solve: Confidentiality agreements are seen as generally low-importance, low-risk agreements — assuming they are properly negotiated — that one must get through as quickly as possible in order to get on with more fruitful commercial negotiations. They tend to be “I’ll show you mind if you show me yours” kind of an affair. But — especially in this data obsessed world — they are buried risks if you don’t watch them carefully. The JC has a whole confi anatomy you can peruse if you would like to know more.
So you need your legal eagles to be en guard to stop the stupid getting in.
Now: confidentiality agreements come in all different shapes and sizes. They needn’t be longer than a few paragraphs, but our American friends are given to presenting 15-page bunker busters, which in the main amount to much the same thing as a concise one, but you never know and you must watch them like a hawk. There are a few points you need to check: the definition of confidential information, exclusions from the general definition, rights to disclose information that is confidential, the term, scope of remedies for breach. It is all, in concept, standard stuff. But it is a faff — depending on how excruciating is the writing style of the author, it might take up to an hour to review, correct mark up and send back. And it isn’t exactly glamorous.
So the problem: it’s slow, it takes a bit of time, the review parameters are fairly complicated (but not complex) — there is a limited risk of missing something — and ones inhouse legal eagle has invariably got better things she could be doing. This is, in person hours, effectively costing the firm money.
The contract review tool as a solution.
The contract review tool promises to perform this first basic check by reference to a pre-defined playbook of confidentiality policies, rather like a triage unit at a military hospital. You give it a once over and it goes out the door. Brilliant.