Love.Law.Robots. by Ang Hou Fu

Contracts

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It's an exciting time to be alive. In last year's TechLawFest, Singapore's signature legal conference for folks who need to shore up their tech gravitas, NFTs were discussed furiously. Back then, NFTs were the hottest thing in the universe, and lawyers either knew NFTs or didn't.

The world is much different these days. TechLawFest has already moved on to the “Metaverse”.

We've got more top-notch speakers to break down every aspect of the Metaverse for you.

Don't miss out: https://t.co/BvgY2wOqpy ​#futurelaw #lawandtechnology #tlf #tlf22 #techlaw #techlawfest pic.twitter.com/c6OMnx5f3Q

— TechLaw.Fest (@TechLawFest) May 24, 2022

In the meantime, the value of NFTs and cryptocurrencies plunged. Two years of financial gains were wiped out. Suddenly, celebrities piping cryptocurrencies went quiet and were ordered to do some soul searching.

It's the biggest “I told you so” moment in my recent memory. This makes the websites of crypto sceptics fun to read. The “counter” memes are fun too.

Diamond Hands is crypto slang, by the way.

Anyone familiar with the reality in this space is well aware that scams and frauds are plentiful, and the dreams are as beautiful as the chasms you can fall into. This isn't an investment blog, but high risk doesn't lead to high returns. A get-rich scheme is not for the faint-hearted or the ethically firm.

From the Boulevard of Broken Dreams

I am secretly happy that cryptocurrencies and NFTs have finally had their long-coming reckoning. It's not because I like people losing money. Or that crypto bros will finally shut the hell up.

My interest in this area is quite intellectual. I think such technologies raise fascinating questions, which is the most lawyerly thing you will hear me say on this blog for a long time.

Take stolen NFTs, for example:

Looking forward to precedent setting debates on IP ownership & exploitation, having spent 18 years studying copyright & the industry laws. I’d ather meet @DarkWing84 to make a deal, vs in court. We can prove the promise of ape community https://t.co/U1GpYK2X7d

— Seth Green (@SethGreen) May 24, 2022

You might remember Mr Green as either Dr Evil's son, a voice on Family Guy, or the creator, writer, etc., of Robot Chicken. He was also a victim of a phishing scam which took away his NFT. All this sounds rather ordinary, but Mr Green also had plans to use the Ape referred to in his NFT for a show. Without his NFT, he can't make his show.

Sorry, what?

Presumably, it's because when you own an NFT, you own the right to parade it in other material. You know, like how some people pick which shows their pets will star in. If you don't own a pet, there's no show.

However, it's not so simple. An NFT is a reference to a particular bunch of data on a blockchain. Furthermore, “owning” a thing isn't necessarily the same as owning its intellectual property. No one gets the idea that because they bought a Harry Potter book, they get to start their own Harry Potter universe.

Even so, this confusion is particularly rife with digital products. Just because you own the “metaverse” handle on Instagram doesn't take away Meta's right to take back their handle per their terms of use.

Beware the metaverse. It's not all fun and games out there.

In this regard, BAYC's terms of use are a crap shoot.

Source: https://boredapeyachtclub.com/#/terms (access 12 June 2022)

  • Yes, “You Own the NFT”. That sounds great, even though the capitalised “Own” looks fishy.
  • “When you purchase an NFT, you own the underlying Bored Ape, the Art, completely”. What's with the comma between “Bored Ape” and “the Art”? Is “Bored Ape” the definition of the “Art”? Or are there two things, the “Bored Ape” and “the Art”? What does owning something “completely” mean anyway?
  • Clause ii starts with “Subject to your continued compliance with these Terms…”. I guess this is what owning something completely means?
  • Who is “you” anyway?

Of course, this may be only a snapshot of the agreement between BAYC and the owner of NFT. Other terms like the smart contract or at OpenSea may apply. However, with terms this grossly vague, it's hard to expect the other conditions to be an improvement or fully resolve all arguments. You'd expect any lawyer with a bit of imagination to have a field day with this.

This is perhaps why Mr Green would love to make a deal rather than meet the current owner of his phished NFTs in court.

The issues with stolen NFTs aren’t so novel

Delorean Photo by Mark Sivewright / Unsplash

Regarding the issue of who “owns” a stolen NFT, you may be surprised that there are precedents. In fact, this problem is so well known that it forms a key part of a first-year contract law student’s learning.

The theory, distilled, is as follows. The original owner didn’t intend to transfer his NFT to a fraudster. There was a mistake that voided his consent to the (smart) contract that operated the transfer. If such a contract is voided, the fraudster had no right to transfer his NFT to his unwitting buyer. The unwitting buyer thus doesn’t own the NFT. The court will order the buyer to transfer the NFT back to the original owner.

We would be short-changing the law students if the issues were so straightforward:

  • The unwitting buyer is also a victim because he bought the NFT without knowing it was stolen. It’s a choice between two victims — either take the NFT from the unwitting buyer or leave the original owner out.
  • What kind of mistake should void consent? Surely, they have to be really big mistakes, right?
  • Is the buyer really a victim? The cost of an NFT is fairly well known. Can one buy an NFT at such a low price that he or she has to know it is part of a criminal enterprise?

It’s even more surprising that you don’t have to travel out of a web3 world to find an example. In Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 2, computers were made to trade Ethereum and Bitcoin at superfast speeds and without human intervention. The code led to unexpected results such that USD285 million in Bitcoin (back then) were contested between two market participants. Was the bug a mistake that allowed one participant to cancel the contracts? The majority of the court said no. The code was doing what everyone intended.

If this was the case, how is hitting the transfer button a mistake? In a decentralized and “trustless” world, a buyer isn’t expecting the identity of a seller to be a material issue in a transaction. Aren’t you supposed to be taking good care of your account yourself anyway? The system is working as expected.

“Working as expected” is the kind of phrase you throw around when you are feeling unkind. Quoine’s dissent is also interesting, and I reproduced it here:

There is nothing surprising, impermissible or unworkable therefore about a test which asks what any reasonable trader would have thought, given knowledge of the particular circumstances.

Three Things: Our Robots made our mistake worseThe plot sounds like something from right out of a movie. In the dead of the night, computers have been doing their thing — buying and selling cryptocurrencies based on maths and science. One morning, a human checks in and realises that something has gone very wrong. A glitch in the algorithm caused…Love.Law.Robots.In Blog version 2020, I wrote about this case.

A reasonable trader, or a reasonable market participant, isn’t an ordinary guy. He represents the best of us, the fairest of us and the guy we need to be when we are tempted by greed, hubris and selfishness.

In a world replete with scams and grifters, perhaps a reasonable person is what cryptocurrency needs.

The building blocks of a major lawsuit are in place

![Lego has been my life since as far back as I can remember, when I was younger I loved building houses, making all the Lego family comfortable in their awesome new home.

Now, I watch my 5 year old nephew delve head first into the infinite possibilities that Lego provides. It’s an opportunity to see what comes from a young mind. It’s awesome. Never grow up.](https://images.unsplash.com/photo-1498747324273-943f73ca00b6?crop=entropy&cs=tinysrgb&fit=max&fm=jpg&ixid=MnwxMTc3M3wwfDF8c2VhcmNofDExfHxidWlsZGluZyUyMGJsb2Nrc3xlbnwwfHx8fDE2NTUyNzQxMDA&ixlib=rb-1.2.1&q=80&w=2000)Photo by Hello I'm Nik / Unsplash

In other news, a law firm in Singapore managed to secure a worldwide freezing order over an NFT in a purely commercial dispute (a botched loan agreement). There aren’t any details on how such an order will be enforced — would they serve it on an online marketplace and force them not to process any transactions? In any case, the fact that it succeeded will tempt others to try it themselves.

The more people look to the legal system to enforce what they perceive as their rights, the more opportunities courts will have to comment on them. The outcome might not be what early adopters prefer or expect — a court can hold that it isn’t reasonable to claim that a phished NFT belongs to an unwitting buyer because the code of the smart contract worked as expected. Similarly, cryptocurrency is as decentralised as finding a marketplace which wouldn’t obey court orders.

The key here is that there must be people who value their NFTs enough to request a court to protect their rights. In a bull run, the incentive to do so is muted because it would probably be more profitable to continue investing. In a bear market, when the chips have fallen, promises that have been made must be kept. And that’s when the lawyers come in.

Hopefully at some point, we’d clear the deck of grifters and scam artists, and leave cryptocurrency, NFTs and even maybe the Metaverse with the norms of a sustainable enterprise.

That’s what everyone wants, right?

#tech #TechLawFest #TechnologyLaw #Cryptocurrency #NFT #Contracts #Law #News

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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There’s a movement brewing between the lines of Twitter and within the deeper reaches of GitHub. Somebody is trying to “open source” contracts. You might have come across the term “open source” when downloading your favourite web browser. Open-source software is free, and it works. Is that what “open source” would mean for contracts?

I liked how Bonterms describes the motivation behind the endeavour:

Look inside the stack of nearly any major cloud application and you’ll find open source code, and lots of it. Developers leverage any existing package they can find before writing a line of code on their own. And they spend hours happily contributing back improvements to the projects they use. Open source has fundamentally transformed software development for the benefit of the entire ecosystem. But, could lawyers do the same? Could you possibly get law firm and in-house lawyers with the relevant domain experience to come together to articulate best practices, collaborate on drafting and then give their work product away for free? Yes, it turns out, you can. You just have to ask and provide a forum for working together and engaging in friendly, detailed debate.

Could time-starved lawyers used to charging by the hour be more like programmers and give what they do for free?

Standards, standards everywhere

Previously I wrote about an “open source” contract — OneNDA. There’s been good news on that front. They transformed themselves into Claustack and came out with oneDPA, backed by PwC and ContractPodAI.

Will oneNDA rule them all?oneNDA, a crowdsourced NDA, says it has standardised the NDA. Cue the sceptic in 3... 2... 1...Love.Law.Robots.HoufuBack when OneNDA first came out, I hesitated to join the “hivemind”. My opinion has improved since.

Other “open source” contracts have sprouted out recently — check out Bonterms and Common Paper.

It’s striking how similar these efforts are — all of them use some “cover page” mechanism to contract and are written by a “committee” of lawyers.

Here’s another similarity: all of them discourage modifying their templates.

You can see this from the particular license chosen by these projects. OneNDA chose CC-BY-ND 4.0 (the ND means no derivatives), and the others chose CC-BY (You might be able to make changes, even for commercial purposes, but you must credit the project when you make changes. How do you do that in a contract? 🤷🏻).

Even if you don’t know the difference between the various Creative Commons licenses, you’d be sufficiently discouraged by the documentation. One of the answers in the OneNDA FAQ is, “Yes, you can do whatever you like with it except actively allow or encourage people to change anything in oneNDA other than the variables.”

After I thought harder about the distinctions, I realised these projects aren’t so much about open source but standardisation. If everyone uses a particular contract, there will be massive benefits to all involved. However, you must agree to its restrictions — You can only modify the variables or the cover page. To use the contract, you must agree to all the choices and tradeoffs made by the project.

Philosophically, I disagree with this sort of standardisation. It’s apropos to introduce some XKCD:

Don’t get me wrong. I’m not going to sneer if I saw a OneNDA in the wild (I haven’t).

But I won’t overestimate the impact of these competing efforts at standardisation. On the one hand, nothing is stopping me from modifying any template. On the other, I don’t get any benefit from adhering to one too.

OneNDA becomes Claustack — now a Community!

There is another aspect of “open source” that these projects might be alluding to. Open source development takes place in an open forum where anyone can contribute — on a mailing list, the GitHub issues page or some Discord server.

This idea that anyone can contribute appears to be anthemic to law. In the open source contracts I covered, all of them highlighted that they are supported or drafted by “experts” in their fields (I am a bit sceptical that someone would call themselves an NDA specialist). Both Common Paper and Bonterms have GitHub repositories for their contracts but don’t appear to accept contributions.

This brings me to Claustack. As mentioned above, it used to be OneNDA only, but now they have created a platform described as “GitHub meets StackOverflow – for lawyers”. The focus is not on the few documents that they are in charge of, but also on others including Bonterms and Common Paper. So, it is now a collection of resources, and a forum for people to provide feedback and suggestions, and at some level, be involved in its development. I liked this iteration better, so I joined up.

A contract standard might sound pointless because there are few, if any, restrictions to ensure you adhere to it. However, if there was a critical mass of users — a community — using, advocating and helping others on it, that is a recipe for conquering the world.

In “Forge your Future with Open Source”, a book about open source and how you can contribute to it, author VM Brassuer writes:

... the most important aspect of free and open source software isn’t the code; it’s the people. Contribution to [free and open source software] is about so much more than simply code, design, or documentation; it’s about participation and community. The licenses make the software available, but the people make the software, and the community supports the people. Remove one piece from this equation, and the entire system falls apart.

The quality of a contract might be important, and the licensing, the design and the cost of adoption are probably important too. But what would keep such a project going would be its people. At that point, more people have a stake in the success of the project, not just its founders or commercial backers.

Building a community wouldn’t be easy...

Although I am cautiously optimistic about how Claustack is turning out, it’s still early days for these open source contracts. More has to be done in order to persuade other folks to contribute and advocate.

My lack of faith probably stems from my experience and observation that open source projects dealing directly with law and lawyers are very few and far in between.

Open Source Legal: The Open Legal DirectoryOpen Source Legal is a central repository and review database of open and open source legal standards, applications, platforms and software libraries. It’s meant to help the legal engineering community track and develop a set of community-driven tools and standards to improve legal service delivery…Open Source LegalYou can check out other open-source projects listed here.

One such project which actually has a community is docassemble. They even have a yearly “DocaCon”. I attended my first last year (when the event was in person it was impossible for me to travel to Boston to attend it), and found a pretty weird tribe. Most of the excitement involved access to justice (A2J) implementations of docassemble, not something you would find in law firms or legal departments. I was excited at an effort to bring testing to docassemble interviews, again, I would never discuss this anywhere else.

In a recent interview on LawNext Podcast, Jonathan Pyle, benevolent dictator of docassemble, said this about his motivations for docassemble:

No, I really like to not make any money off of [docassemble]. It’s because I would really like being able to be honest to other people... I like being able to advise people not to use my code. It’s just so much easier if I could just concentrate on the technology and creating new features and not having to worry about making a living. It’s kind of nice to do something nice in the nights and weekends.

I can’t name another project like this.

Lack of opportunities is not the only problem. Culturally, lawyers seemed to be “trained” not to collaborate with each other.

Being #1 isn’t always a good thing—loneliness among lawyers (296) | Legal EvolutionSuccess as a lawyer can come at the expense of personal relationships. Is it worth the price? Few of my former partners in the global firm where I workedLegal EvolutionTom SharbaughIn this detailed narrative, associates, partners and law students confront loneliness.

Echoes of this also come from a recent interview with Mary O’Carroll on Artificial Lawyer.

If you have three lawyers in a room, and someone has information that can make someone else look good, will they help the other lawyers? Knowledge sharing between lawyers is not incentivised in training programmes. But, in a corporate setting you have to flex that muscle, i.e. collaboration and teamwork. The problem is that lawyers are trained to be the smartest person in the room. They don’t work cross-functionally in law firms. In a company however, every team has to work with every other team across the business.

Building a community for a normal open source project is really difficult. The question when it comes to open source contracts is: do lawyers even want a community?

Conclusion

An early draft of this post started by asking whether calling a contract “open source” is a PR stunt. It’s not fair to cast aspersions on an open source contract being given out for free when the usual course is not to share at all. Even so, one also has to be judicious about the way you spend your own time, something which lawyers are definitely (maybe overly) familiar with. Building an open source community is difficult, but that is what would make such a project sustainable. I’ll be keeping a lookout and hopefully there is a place for someone who wants to contribute.

#Contracts #docassemble #oneNDA #Claustack #Bonterms #CommonPaper #Law #Lawyers #Copyright

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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October is drawing to a close, and so the end of the year is almost upon us. It's hard to fathom that I have been stuck working from home for nearly 20 months now. Some countries seemed to have moved on, but I doubt we'd do so in Singapore. Nevertheless, it's time for reflection and thinking about what to do about the future.

What I am reading now

The Importance of Being AuthorisedA recent case shows that practising law as an unauthorised person can have serious effects. What does this hold for other people who may be interested in alternative legal services?Love.Law.Robots.HoufuAn in-depth analysis of a rare and recent local decision touching on this point.

CLM Simplified: Efficient Contracting for Law Departments : Bassli, Lucy Endel: Amazon.sg: BooksCLM Simplified: Efficient Contracting for Law Departments : Bassli, Lucy Endel: Amazon.sg: BooksLucy Endel BassliI earn a commission from purchases made with this link.

  • Do you need a lot of coding or technical skills to use AI? This commentator from Today Online highlights Hugging Face, Gradio and Streamlit and doesn't think so. So have we finally resolved the question of whether lawyers need to code? I still think the answer is very nuanced — one person can compile a graph using free tools quickly, but making it production-ready is tough and won't be free. I agree more with the premise that we need to better empower students and others to “seek out AI services and solutions on their own”. In the Legal field, this starts with having more data out there available for all to use.

Why you don’t need to be an expert to use AI any moreKeeping up with the latest developments in artificial intelligence is like drinking from the proverbial fire hose, as a recent 188-page overview by two tech investors Ian Hogarth and Nathan Benaich would attest.TODAYonline

Post Updates

This week saw the debut of my third feature — “It's Open. It's Free — Public Legal Information in Singapore”. I have been working on it for several months, and it's still a work in progress. I made it as part of my research into what materials to scrape, and I've hinted at the project several times recently. In due course, I want to add more obscure courts and tribunals, including the PDPC and others. You can check the page regularly, or I would mention it here from time to time. I welcome your comments and suggestions on what I should cover.

That's it!

Family Playing A Board Game. An Asian family \(adult male and female and two adolescents, male and female\) sitting around a coffee table playing a board game. Photographer Bill BransonPhoto by National Cancer Institute / Unsplash

At the start of this newsletter, I mentioned that November is the month to be looking forward. 😋 Unfortunately, for the time being, I would be racing to finish articles that I had wanted to write since the pandemic started. This includes my observations from playing Monopoly Junior 5 million times. You can look at a sneak peek of the work in my Streamlit app (if it runs).

In the meantime, I would be trying the weights and cons of using MongoDB or SQL for my scraping project. Storing text and downloads on S3 is pretty straightforward, but where should I store the metadata of the decisions? If anyone has an opinion, I could use some advice!

Thanks for reading, and feel free to reach out!

#Newsletter #ArtificalIntelligence #BookReview #Contracts #DataMining #Law #DataScience #LegalTech #Programming #Singapore #Streamlit #WebScraping

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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Sometime in 2019, I read Technical Blogging and realised several things missing about my blog. That's when I wrote, “Why I would use Excel for my Contract Management System”, as a demonstration of what I learned. Lo and behold, it is one of the best performing posts on the blog.

I want to think that the post was pretty effective. Try and answer a need that a reader may have, etc. However, I think it's more likely because people really want to use Excel to manage their contracts.

Why I would use Excel for my Contract Management SystemHow do I get on this legal technology wave? Where do I even start? A “contract management system” or a “document management system” (“CMS”) is a good place. Business operations are not affected, but the legal department can get their hands dirty and show results for it. If you wouldLove.Law.Robots.Houfu

Two years have passed. Do I still have the same opinion? Would I use Excel for contract management?

I am still using Excel.

Let's go to the ending first: I am still using this system after two years. Many of the complaints I expected still held:

  • It's incredibly tedious. I don't really have the time to input all the fields properly. With the pandemic situation, it's not been straightforward to get cheap help either.
  • Some of the fields I selected were not so helpful. For example, the free text input for some fields like services etc., made it difficult to gain insight across broad data ranges.
  • It just isn't convenient. I wanted badly for the system to let me know when there were expiring contracts. However, I had to set a time manually to open the document and extract the information. This was not a commitment that I could keep easily.

However, the system stood up to be counted on when I needed it. I have been able to locate and check previous contracts, which the original department could not find. Furthermore, when I needed to find out the number of jurisdictions we did business with, it was a simple Pivot chart. A pretty graph I could show my management in less than an hour.

Lessons Learnt

Even though I have stuck with Excel, I found my experience illuminating, and it definitely prepared me for my other projects in implementing document automation and e-signature. Here's a list of lessons I have learned that will give you insights into your own journey.

1. Don't underestimate Excel.

This old green toolbox wears its age well and hints at owners long past, their workday woes and triumphs—the daily grind. Photo by Susan Holt Simpson / Unsplash

The Office 365 apps are not only ubiquitous but are also very malleable. The example close to a tech lawyer's heart is Microsoft Word. Microsoft Word is not an excellent tool for writing court submissions and contracts. But they can do that, as well as letters, forms, notices, policies, documentation and the list. Since you can find Word on many computers at our workplaces, they are used ad nauseam even when there are better ways to write letters or contracts.

If you're impressed with what a word processor like Microsoft Word can do, wait till you see Excel. Of course, writing court submissions with Excel appears farfetched, but I have come across contracts written with Excel. More sophisticated (and correct) uses of Excel include compiling and analysing data and presenting summaries.

If you manage your contracting data in Excel, Excel can process such data to extract and analyse data, as we did in my 2019 post. The information you input in the form might look like a table, but it's become more than that. Using its built-in functions, you can extract and manipulate the data inside.

So, if you find Microsoft Office apps on your computer, don't dismiss them too quickly. It's definitely a part of your toolbox, and you can do some pretty amazing things with them.

2. Seek data, not information

Document folders on the shelvesPhoto by Viktor Talashuk / Unsplash

A strange insight came to me once I tried to push Excel to do more with my information. What's the point of putting in the dates of the contract, the jurisdictions of the counterparty, or governing law of the contract? The most immediate answer is that it summarises the contract and its risk profile as a lawyer. When it's a table, I can broadly see this information across a range of contracts.

For a computer or a program like Excel, this risk profile information has no meaning by itself. To make your data work harder for you, a program like Excel has to recognise special characteristics like dates, categories and numbers. Once Excel knows more about the data it is handling, further processing like analytics over a time span or clustering becomes possible.

Once you have that going, you are no longer dictating to Excel what your information is and how your information should be presented. Now Excel can do some of the heavy lifting for you in computing your data as you explore it. Doing more with less! New insights!

In my experience, staring at the information you have at hand doesn't always immediately deliver data. Special insights came when I used the system more and realised what other information I could capture. Suppose you could explore your contract data with purpose-built systems. That's awesome. However, if you only have access to Excel, it's better to use that than to be led by your feelings around the information.

3. The best tool for the job can be Excel

I had a few hours to kill in Copenhagen, so I went to the Sorte Diamant Library to take some photos. Libraries are quiet places and staff members aren’t always thrilled to hear camera shutters go off. As I was firing away, I noticed a staffer approaching from my side. I said a photographers’ prayer and prepared to get told off. He said to follow him and I obliged. We walked through a door with a “staff only” sign, found our way down a narrow corridor and entered a huge room, dimly lit, filled with archived books. “You’ll get good shots in here”, the librarian said and then got back to work.Photo by Marten Bjork / Unsplash

In reality, you would not be innovating in a vacuum. There might already be several tools in your organisation, and they may have users too. Google Docs is all right, and I'm not too fond of Microsoft Word. I really like Notion too. Would I be able to convince everyone around me to drop Microsoft Word and adopt Google Docs or Notion immediately? It's a tall order.

This is what “no-code” should look like — NotionWhat do we really want from a “no-code” product? Notion shows we want well designed software which can deliver a big impact in small ways.Love.Law.Robots.Houfu

Furthermore, your solution is supposed to fill gaps in the organisation. Every organisation is different so that the best solution has to be customised for each organisation. There may be places and times where adopting a complete, point to point solution is the best approach. Very often, though, you'd have to do some real work of substituting, eliminating, consolidating or reusing something that's already there. You have to lay the groundwork.

A tech lawyer shouldn't focus on what tools are out there but what tools he can have to do the job. At times, leadership is not so forthcoming to invest in a costly platform. To make do, you have to take a look at your toolbox and what you have there. Many of us will find Excel there, so we have to make the best use of it. Explore it, and you will find a pretty powerful tool.

Conclusion

I ain't ashamed to say I use Excel. Compared to having nothing , this is still a much better situation.

Using Excel, the contract management system may have entered a static point — I can't really find a way to improve it significantly using Excel only. As I mentioned in my 2019 post:

However, once you can demonstrate practical benefits and a workflow, stepping up to a real made for the purpose document or contract management system is easier to climb.

The significant improvement now would be to get something that's made for its purpose.

Even so, you could, as I did, find that significant improvement is hard to attain. It's too radical a change, and I can't really demonstrate the benefits that would persuade large sections of folks who may not like the change. If that's the case, we may have to live with our Excel CMS for just a while longer.

On the other hand, there are other aspects in your legal department that you might find lacking, such as e-signatures or intake systems. Perhaps it's time to bring these up to scratch as well. Once others get used to e-signatures, it's a shorter leap to conclude that Excel is not the best solution we can have. Innovation is always a long journey, and at some point, you'd look back at your Excel CMS and find it a milestone of your early efforts.

#tech #ContractManagementSystem #Contracts #LegalTech #MicrosoftOffice #E-signature

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

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I spent several nights and trips on aeroplanes thinking about how to innovate the contracting process in my company. Though I did do a lot of reading online and offline, it was a lonely journey. I had to separate the puff from the substance and the wheat from the chuff from what I was reading and planning. When I got to action, I realised that having ideas was the easy part; making them work is really tough. Some of that work showed its fruits, but much of it was still unfinished.

Why I would use Excel for my Contract Management SystemHow do I get on this legal technology wave? Where do I even start? A “contract management system” or a “document management system” (“CMS”) is a good place. Business operations are not affected, but the legal department can get their hands dirty and show results for it. If you wouldLove.Law.Robots.HoufuAn early effort. I have mixed views about this post 2 years later.

A tiny book review

At first, I was sceptical about reading another book on the process. ” Sign Here: The enterprise guide to closing contracts quickly “ by Alex Hamilton proved to be different. Alex Hamilton is a founder of Radiant Law, a law firm in the UK that focuses solely on the commercial contract process. They use technology and process improvement to deliver legal services differently. They've been doing it for ten years too, so they are here to stay. I was quite sure I would learn something different from this book.

Unfortunately, the book didn't teach me anything new. Instead, it validated many of my instincts and the conclusion I had reached after pondering the issue for years. That might sound like a nice ending, but I would rather read this from a book than cracking it from some stone and not being sure whether what I had was a real insight or baloney.

So, in short, I recommend the book. It put words to what my instinct and experience were telling me, and I am glad I read it. This is the real deal, in an accessible and practical format that anyone can read.

Sign Here: The enterprise guide to closing contracts quickly : Hamilton, Alex: Amazon.sg: BooksSign Here: The enterprise guide to closing contracts quickly : Hamilton, Alex: Amazon.sg: BooksAlex HamiltonI earn a commission from purchases made through this affiliate link.

Let's Pick Five

If you are not convinced yet, here are five lessons from the book. I think they're wise and spoke to my practical experience.

Thing 1: Speed matters when you're making contracts

Image by Free-Photos from Pixabay

The legal department is usually viewed as a roadblock. We stop others from making bad mistakes. We are the ones who are going to review the contract you just received from the counterparty. These points are valid, but there's a substantial cost in not acting fast. “Sign Here” raises lost revenue, postponed or even lost value and may even undermine relationships as the cost of delay in the contracting process. “Relationships are indeed being created and grown [as a result of the contract process], but successful relationships are often despite rather than because of the agreement.”

So speed really makes a difference. In my view, there's a customer relationship factor. Your internal customers like to hear a response from you. They can also tell our external customers that they care when they respond quickly.

Thing 2: There is no silver bullet

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“Sign Here” proclaims that despite vendors' claims, no single solution would solve all problems in the contracting process. I've always felt sceptical about silver bullet claims. I also felt unsure whether any completely new platform would succeed given its high costs.

There are two facets of real life that make any “silver bullet” difficult:

  • You don't live in a vacuum. I found several guerilla systems for contracting in the wild in my company. Expecting messy people to fit into your system would probably be a hard task, and I was not sure I was spending my capital effectively forcing people to like my favourite solution.
  • Resources are limited. It's simple. I have no budget, and I am still expected to do my regular work properly. Any innovation used to be nice to have. The amount of work it takes to put in a “silver bullet” solution (if there was such a thing) would have been extremely risky.

So no single solution works. You really have to go in there and figure out a good fit.

Thing 3: Change is a long series of steps

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Related to the “silver bullet” fascination above is the belief that one solution solves all problems at once. It just doesn't work like that. Even if you had infinite resources and a highly motivated core of customers ready to do your bidding, the solution you have just implemented is not likely to be perfect now or in the future. The time horizon “Sign Here” suggests isn't months or years — it's weeks and then improved again later.

For myself, having users and putting solutions into production meant I had to fix bugs, answer questions and listen to suggestions. With some humility, I realised that these fixes and suggestions made the solution better. It also meant, sadly, that I had to get back to the drawing board.

Corollary to the fact that you will have to revisit your work repeatedly, it also means that you have to learn new things all the time continually. 😰😫

Thing 4: Be Clear and Reasonable

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Consistent with the aim that contracts are relational rather than transactional, “Sign Here” recommends that terms aim first to be reasonable rather than extract maximum advantage, which is whittled down by mano-a-mano negotiations to something you can live with.

Related to the speed of contracting, clear and reasonable terms means that parties aren't sapped by the energy it takes to reach an agreement. I found internal customers are happy when they aren't fighting pointless battles, and when they don't have to explain to the counterparty or their legal department why our terms are so unfair. It also turns out that business folks aren't blind, and they like to discuss strategic matters that really matter to the deal. That starts with shunting out the stuff that doesn't matter.

Thing 5: Some technologies are more important than others

Image by Michael Schwarzenberger from Pixabay

I found the hardest issue with implementing change in contracting is what to prioritize. When you have limited time, resources and leadership capital, the changes you emphasize appears to be very significant. Document automation and AI contract review sound cool, while other less glorious things like storage systems and helpdesks also seem important.

One of the best parts about “Sign Here” is that it sets out a list of technologies you should focus on and why. Conversely, it also highlights technologies that you might hear about, but also their not-so-discussed limitations. It's one of the most fun parts of the book, so I won't spoil it for you.

Instead, I'd highlight the most important technologies that I thought were. It broadly matches the insights from the book.

  • Document template automation (Docassemble)
  • e-Signature (we just implemented DocuSign)
  • Intake system (I'm working on it)
  • Knowledge system (Probably try and perfect the SharePoint site we now have)

docassemble – Love.Law.Robots.Love.Law.Robots.Some of my posts on this blog on docassemble.

Conclusion

Buy the book!

#BookReview #LegalTech #Contracts #ContractManagementSystem #docassemble #E-signature #Law

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

Feature image

I am not going to be shy about this. I really hate reading Non-Disclosure Agreements. Sometimes, they are known as NDAs, Confidentiality Agreements, and Mutual Confidentiality Agreements. Whatever guise they are in, they seem to say the same thing in many different ways. If there was a nuance, it's difficult to say what actual impact they have. Yet, we still have to figure it out and review them as necessary. Because somebody probably forgot to put in something that we need. Once they are signed, we move on. In short, a lot of time is spent on NDAs, but nobody cares. 🤢

That's what @thelawboutique_ execs Electra and Roisin found when they sat down to review the agreements they'd handled for their clients.

The #NDA effort-to-value ratio isn’t just appalling for the service providers – for in-house counsel it’s even worse. Can you relate? pic.twitter.com/CAuHQAkPQR

— oneNDA (@onendaclub) July 26, 2021

This kind of dysfunction is ripe for disruption. NDAs are probably one of the most straightforward problems in using AI for contract review. They have a certain structure and a limited set of clauses. You don't need to look far for an example — check NDAlynn. You can even enjoy NDALynn for free if you don't mind your document becoming part of the hivemind.

oneNDA is a different kind of disruptor. It suggests that life would be much easier for everyone if we sat together and agreed on one NDA. If you're curious what that crowdsourced NDA looks like, you can take a look at their website or download it here.

oneNDA Is Live! An M&A Module Is NextThe oneNDA project, which has sought to create a universal Non-Disclosure Agreement to cover confidential information, has gone live and is now available. However, the project will not stop th…Artificial Lawyerartificiallawyer

What I liked about oneNDA

  • It's short, simple and pretty. At two pages, they have really condensed the document into its finer parts.
  • The so-called “variables” only cover about half a page. Agreeing on the details of this document will probably take less than a few minutes. This is probably more substantial than many NDAs I have seen regarding time and costs saved (if that is the only thing you have to agree on).
  • It's licensed underCC BY-ND 4.0, a Creative Commons license. So yeah, I can share it here.

What I didn't like about oneNDA

  • Choices have been made, and not everyone will agree with them. You can check out their graveyard to read about what they decided to leave out in oneNDA. I can understand why they did it, but that will not stop anyone from adding it back in. You would then have to spend time reviewing it, which defeats the purpose.
  • It's licensed with ND (No Derivatives). This means you can't change and then distribute it, including sending it to your counter-party. It's a plausible controversy whether contract clauses can be copyrighted (they obviously can). I guess dictating how the NDA is used can help adoption by building a strong identity. In my view and having some background in open source, I honestly think this ND qualification is unnecessary. I would definitely think twice about these restrictions before using them.

My Conclusion

The creators of oneNDA have made a smart decision by aiming first for an NDA that is the simplest — having a commercial discussion. Logically speaking, it's like buttoning your shirt as you prepare for a business meeting. You shouldn't be spending much (if possible, any) lawyer or negotiation time on this sort of agreement. This NDA definitely helps you to reach that conclusion.

However, if you've reviewed enough NDAs, you would know that the arguments which prevent us from having a universal NDA aren't entirely rational. Somebody thinks their template is better, and we are going to have a debate over it. Sometimes it's easier to argue that we should stick to our template than selling a change which sounds like losing our freedoms. Maybe our language has been “tested”, and oneNDA hasn't. If I was conservative, having as many clauses in as possible is safer than leaving something out.

Reviewing NDAs is the express route to learning why contracts are dysfunctional.

Finally, there's a problem with NDAs. I first found out when I wrote my own NDA generator. Everyone sort of agrees that NDAs are low hanging fruit, but the reward of solving the problem isn't sweet or worth shouting to management. Nobody cares about NDAs, so nobody cares about the solution. Here lies an important lesson in innovation — some problems just aren't worth solving. The conclusion of my NDA generator was that people nodded at the “proof of concept”. Conversely, a letter generator that wasn't particularly complex or legal had a greater impact. They used it more often, and it saved them from learning how to choose a template.

On the other hand, like buttoning a business shirt, it wouldn't impress you if a button was in a different shape, or featured “magnets”.

oneNDA Is mediocreNDA: Thoughts on a Proposed Standard Nondisclosure Agreement – Adams on Contract DraftingoneNDA is a new initiative that “set out on a mission to standardise the NDA so that lawyers can spend less time on them and more time on more valuable work.” For more about oneNDA, go here. This week they released their “simple, plain English, open-source NDA,” also called, somewhat confusingly, on…Adams on Contract DraftingKen AdamsIt's great to know that I ain't alone in my conclusions.

So, while I am a firm supporter of standards, I am not excited about this one. oneNDA is great, but it is just another NDA.

Standards, the Importance of StandardsI explore the possibilities of using a taxonomy from the Legal Matter Standard Specification from SALI the Alliance.Love.Law.Robots.HoufuRead about a standard I am actually excited about.

Looking Forward

I may not be excited about oneNDA in its current state, but I am more curious about how technically they would implement modules for M&A. I hope it will be a useful tool that provides convenience and simplicity for users, and not just a choose your own NDA. Anything that keeps NDAs away from lawyers will be a boon for the whole process.

For now, count this sceptic out of the hivemind.

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#Law #Contracts #Copyright #LegalTech #oneNDA

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu