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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. | 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: | This has three consequences: | ||
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. | |||
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''. | |||
*'''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 | 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. | *'''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 | 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. | ||
But it is worse than that | 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. | |||
This is a less ambitious, more realistic, goal. Lower your short-term expectations, and the long-term return could be huge. | |||
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. | |||
{{sa}} | {{sa}} |