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 But it turns out unseen text isn’t as easy to review as all that. Even boring syntactical things like plurals, irregular verbs and parentheticals (we lawyers ''love'' parentheticals)<ref>See what I did there?</ref> are hard to code for. In time the machine will get better, but the universe of possible ways of articulating a single idea remains infinite and, while [[legal eagles]] are stunted in many aspects of their creativity, when devising ways in which they may torture prose they are not. Along that axis, they are extemporisational geniuses.  Thus, most commercial [[contract review tool]]s hire paralegals, in low-cost jurisdictions, to check the machine’s output before sending anything back.
 This has three consequences:
-=====It’s slow=====
-Firstly, it slows down the output: Instead of getting your markup immediately, you get it three-quarters of an hour or more later — that ''same'' three-quarters of an hour ''in which you could have read the NDA yourself''. This is more than enough time to become comprehensively distracted by something else.
-=====It’s more expensive=====
-Secondly, it adds to the cost. Now, to be sure, [[reg tech]] providers are master [[rent-seeker]]s, but here, in their bench of paralegal sense-checkers, they have actual out-of-pocket costs. Thus, the [[contract review tool]] must carry a heavy charge ''per document'' review. Better ones charge less than a hundred bucks. Some charge as much as three hundred, ''per review''. ''But the point of automated review is that it shouldn’t cost anything.''
-Suddenly the cost proposition that swung the business case doesn’t work: you assumed you were saving an hour of [[Legal]]’s time, which you unitise at, say, $250. But that is a ''nominal'' cost. It is sunk.<ref>Unless you were briefing out your confis to a [[law firm]], in which case, ''really?''</ref> A new [[confi]] coming in doesn’t generate that cost, and firing the thing out to your [[contract review tool]] doesn’t save it. The cost of your own [[legal eagles]] is fixed, and notoriously hard to [[shredding|shred]] back to your business. Legal eagles just sit there, on the firm’s dime, ''whether you use them or not''. Most work very hard, of course — the [[legal eagle]] who punches out at 5pm on the smacker on ''any'' day, let alone ''every'' day is a rare bird. He ''will'' look at that [[confi]], and anything else that needs to get done, at some stage during the day. ''[[Legal eagle]]s don’t work to rule''.<ref>As it happens, the occasional [[confi]] can be a pleasant distraction: a nice re-charger after a hard morning slogging through a series of regulatory change stakeholder [[Skype]] calls. Hey, management team: why don’t you try to get rid of all the ''stakeholder management calls''? ''There'' is a question.</ref>
+Firstly, it slows down the output. Instead of getting your mark-up immediately, you get it three-quarters of an hour or more later — this is enough time to become comprehensively distracted by something else and, for that matter, to have reviewed the NDA yourself.
-So, unless you can prove that your [[contract review tool]] will make some of your lawyers ''[[redundant]]'', ''it is not saving you any real money''. It is ''costing'' real money — ''more'' than it would for your internal team to just knock off the confi in the first place.
+Secondly, it adds to the cost. Now, to be sure, [[reg tech]] providers are master [[rent-seeker|rent-seekers]], but here, in their bench of [[paralegal]] sense-checkers, they have direct out-of-pocket costs. Thus, their application must carry a heavy per document charge. Some charge less than a hundred bucks for a document. Some charge three times that much. ''But automated review shouldn’t cost anything''.
-=====It’s not really [[reg tech]] at all. It’s just [[outsourcing]] that you’re ''calling'' [[reg tech]]=====
-[[Reg tech]] that doesn’t work without a human standing behind it to prop it up ''isn’t'' [[reg tech]]: it is a ''gimmick''. It is a form of disguised ''[[outsourcing]]''. But you are outsourcing to a black box: to personnel you can’t see, you didn’t hire and you can’t evaluate, but who ''must be'' cheaper than your own personnel, since you are now paying for them, this confounded [[reg tech]],<ref>''Also'' a black box, by the way: how much of the work-product is the tech, how much the [[meatware]]? If they won’t show you, assume it is mostly the [[meatware]].</ref> ''and'' the [[Rent-seeking|rent]] your [[software as a service]] provider is extracting on the whole operation. If the [[reg tech]] checkers are ''better'' than your own people, hire the [[reg tech]] firm as a recruitment consultant, not to provide crappy [[AI]].
-=====It makes for ''more'' work downstream=====
-Now bear in mind the perverse incentives that operate inside a sprawling organisation. An employee’s primary driver is covering her ''own'' arse, ''then'', where time allows, her organisation’s. When setting up a [[contract review tool]] there are two sets of legal decisions to be made: administrators must configure the general terms of the [[playbook]] in the ''abstract'', and [[legal eagle]]s must , judge how to handle incoming from a counterparty in the ''particular''.
-*'''The [[playbook]]''': There is no [[playbook]] on the planet which stipulates [[walk-away point]]s at the ''actual'', real-life, points at which the organisation will really walk away. Not a one. Playbooks are forged in the abstract, without sight of individual mitigants that might accompany any given [[project]]. They are modelled not on the golden mean, but the lowest common denominator. They will have too many rules, all informed by the timid [[credit officer’s refrain]]: ''it can’t hurt to ask''. They may make that fatuous supposition that ''it leaves us something to concede so that the client can think it has won something''.
+The point was to save an hour of [[Legal]]’s time. But that is a ''nominal'' cost. It is ''sunk''. Your [[legal eagle]] doesn’t work to rule. She doesn’t sit on a production line. She’ll just fit the review in, along with all the other random things that hit her desk in a day. So, an incoming NDA doesn’t ''generate'' a specific cost and firing it out to for automated contract review doesn’t ''save'' it. Unless you can demonstrate that your contract review tool will make some of your lawyers ''[[redundant]]'' – good luck with that one – it is not saving you ''any'' money. It is ''costing'' real money.
+Thirdly, it isn’t really “[[reg tech]]” anymore. Reg tech that needs a human standing behind it is a form of disguised [[outsourcing]]. Okay; COOs are cool with [[outsourcing]]. But here you are outsourcing to [[personnel]] you can’t see, you didn’t hire and you can’t evaluate, but who must be cheaper than your own personnel, since you are now paying for them, on top of this confounded [[reg tech]] and the rent your software as a service provider is extracting on the whole operation. If these people really are better than your people, ''you should hire the reg tech firm as a recruitment consultant'', not to provide crappy AI.
+====It makes for ''more'' work downstream====
+When setting up a [[contract review tool]] there are two sets of legal decisions to be made: administrators must configure the general terms of the [[playbook]] in the ''abstract'', and [[legal eagle]]s must handle incoming issues from a counterparty in the ''particular''.
+*'''The [[playbook]]''': There is no [[playbook]] on the planet which stipulates [[walk-away point]]s at the ''actual'', real-life, points at which the organisation will really walk away. Playbooks are forged in the abstract, without sight of individual mitigants that might accompany any given [[project]]. They are modelled not on the golden mean, but the lowest common denominator. They will have too many rules, all informed by the timid [[credit officer’s refrain]]: ''it can’t hurt to ask''.
 *'''The [[negotiation]]''': it is a great comfort to an [[inhouse lawyer]] that she can make decisions, concede technical points, and let ''de minimis'' terms go, on the fly. ''This'' is what gives her ''wings''. This vouches safe [[Drive: The Surprising Truth About What Motivates Us - Book Review|her ''autonomy'', her ''mastery'' and her ''purpose'']]. ''This'' is why she shows up for work; why she slogged through interminable lectures about [[promissory estoppel]] all those years ago. There is something ineffable, even ''infinite'' about this skill: it is impervious to measurement; this rich forensic magisterium lies beyond the censorial gaze of [[internal audit]]. In this sunlit realm, we [[legal eagle]]s can truly fly.
-But a [[playbook]] ''buggers up'' this freedom. It chains our young eagle to the ground. Scarcely can she unfurl her wings, when the [[contract review tool]] has marked-up the document ''to rule'', cleaving to every stricture of the [[playbook]], however prudish, [[tiresome]] or nonsensical. It is like Horton the goddamn Elephant, doggedly sitting on a nest up a tree. Now bearing in mind that the whole point is ''saving her precious'' [[time is of the essence|''time'' is of the essence]], it would be ''most'' odd for our young attorney now to ''undo'' those fussy, machine-generated corrections — and so we have created a cyber version of our old friend the [[anal paradox]]. And besides, why is de-stupiding the machine’s output any more useful than de-stupiding the original draft in the first place? Did ''that'' cost get baked into the business case?
+But a [[playbook]] ''buggers up'' this freedom. It chains our young eagle to the ground. Scarcely can she unfurl her wings, when the [[contract review tool]] has marked-up the document ''to rule'', cleaving to every stricture of the [[playbook]], however prudish, [[tiresome]] or nonsensical. It is like Horton the goddamn Elephant, doggedly sitting on a nest up a tree.
-=====The measure of a [[legal eagle]]=====
-But it is worse than that: our [[legal eagle]] is snookered: thanks to this fusspot machine, suddenly her ineffable judgment is ''measurable''. The bureaucrats can run MIS reports. They can see what she is doing. They have a yardstick, and it will tell them things like, “''L. Eagle departed from the recommended standard term seven times in June 2019''”. The [[rule of self-preservation]], which crushes the abstract yen for autonomy like a bug, discourages any deviation from the guidelines —“good!” squeaks the COO — ''but the guidelines will be stupid''. ''She'' might be incentivised to demur, ''but her counterparty won’t''.
+Now, bearing in mind that the point is to ''save her precious'' [[time is of the essence|''time'']], it would be odd — predictable, sure, but odd — for our young attorney to ''undo'' those fussy, machine-generated corrections, and so to transgress a cyber-aged version of our old friend, the [[anal paradox]].
+But it is worse than that: thanks to this fusspot machine, suddenly the [[legal eagle]]’s ineffable judgment is ''measurable''. The bureaucrats can run [[MIS]]. They can see what she has done. They can report on it. Our [[legal eagle]] can be held to formal account. Her yen for self-preservation — which crushes a yen for [[Drive: The Surprising Truth About What Motivates Us - Book Review|autonomy]] like a bug — will discourage any deviation from the guidelines — “good!” squeaks [[internal audit]] — ''even though the guidelines will contain much that is stupid''.
+And besides, ''she'' might be incentivised to comply, but her ''counterparty'' won’t. To the contrary, it will explode in an incandescent rage at the casual pettifoggery with which its [[Contract|sacred covenant]] is being treated. Our brave eagle can expect to be knee-deep in hostile negotiation, ill-tempered [[conference call]]s and, after a time, hard-tack reverse-ferret [[client relationship management]] all over commercial terms which, had she never used [[automated contract review]], she would never have raised at all.
+Look — it is only an NDA, and it will get sorted out, but remember the original point of the software was to eliminate work, not generate more of the stuff.
+===There is a role for AI===
+There is a role for automated contract review: not reviewing [[NDA]]s, not supplanting humans, but in giving them a scratchpad. If the AI works without a human backstop, and you throw anything at it, and commit to training it as you go, it might be useful after a while. A machine that can pick out indemnities, governing law, limitations of liability and exclusions — just finding them, even if it doesn’t have much to say about them — would be a great help. It need not be perfect, as long as it is trainable.
-To the contrary, her client is liable to explode into an incandescent rage at the insistence on a two-year term when he expected three. In any case, our brave eagle can expect to be knee-deep in negotiation, hastily-convened conference calls and, after a time, some hard-tack reverse-ferret [[client relationship management]] on commercial terms which, had she not used contract review tool, ''she would never have raised at all''. Look — it ''is'' only a [[confi]], and it will get sorted out, but remember the original point of the [[contract review tool]] was to ''cut down on work and save costs, not generate more of the stuff''.
+This is a less ambitious, more realistic, goal. Lower your short-term expectations, and the long-term return could be huge.
-===There is a role for CRM===
+But “dunno: it might work. Let’s suck it and see” tends not to fly as a business proposal. But removing rent-seeking intermediaries and treating information processing as an unglamorous utility and not the indescribable magic our [[thought leader]]s like to say it is, is the promise that information technology made. If we hold it to its actual bargain, not our giddy expectations, we might get somewhere.
-If you step back and re-contextualise the promise of [[reg tech|reg-tech]], there is a role for [[automated contract review]]. But it is not to supplant humans, but just to give them a scratchpad. If the AI does work at all and you can take out the human backstop, and throw ''anything'' at the software, and commit to training it as you go, then you might find it starts to be useful after a while. A machine that can pick out indemnities, governing law, limitations of liability and exclusions in ''any'' 40-page contract— just finding them, even if it doesn’t have much to say about them — would be a useful contract companion. It need not be perfect, as long as it is trainable. This is a much less ambitious, but more realistic, goal. It involves both sides lowering their expectations in the short term, for a greater return in the long-term. It extracts the [[reg tech firm]] from the middle of the process, where it can extract rent as a service, and relegates it to a ''software provider'' which is all we ever wanted in the first place. No, there is not as much money in it, but there isn’t meant to be. That is the very point.
 {{sa}}