Oh no, Elon Musk has acquired Twitter. Bad things will happen.
I had this premonition months ago when Elon Musk toyed with the idea. I thought it was a dumb idea for him, but people do dumb things all the time and still turn out fine.
Smart people (or so I’ve heard) started exploring alternatives to Twitter. Many of them were led to Mastodon. I am way ahead of these guys.
Months ago, when I received word (on Twitter!) that Elon Musk was entertaining his silly idea to buy Twitter, it was time for me to dive into Mastodon finally. I got my account and a client on my phone and figured out that the star is like, reblog etc.
I was ready to drop Twitter.
To be in Mastodon, you have to sign up at a server. This first step appears to be the most difficult for new users. Which server do I join? What difference does it make? Interestingly, this first step is probably the most inconsequential. Unless you plan to move fast and break some content or moderation policies, joining a public server like https://mstdn.social/ or https://mastodon.online is good enough for trying Mastodon out.
Currently, I am not aware of a public Singaporean Mastodon server (I have long been interested in running one, but I am not sure who is interested in using it). If you want to join one, you can quickly move your existing account to that server or create a new one.
While the above instructions work if you’re using your web browser, you can also do the same by installing a mobile app on your phone. There are dozens of clients you can use on your phone. I used the official one, Tusky was quite all right. Twidere sounded interesting too.
Once you have downloaded your phone app and signed up on a server, you will find Mastodon to be like a pretty basic Twitter to a great extent. It’s also pretty basic because you wouldn’t find any ads or algorithms curating content.
A futuristic Mastodon introduction for 2021:Focusing on things that come up frequently and I don’t see explained that often. Here’s the lede: You can’t ever see or search everything...! This post explains a lot about what Mastodon is for beginners.
Most people get very confused with the first step because when they want to leave Twitter, they expect the alternative to be like Twitter. It raises good questions like the following:
I'm not sure I get Mastodon. The first step seems like you have to pick a tribe—which is the source of like 90% of the problems on Twitter. And then I have lots of unanswered questions. Who runs the servers? Who pays for it? Privacy? What happens if it gets big? And so on...
— David Beazley (@dabeaz) October 28, 2022
The easy answer is that each “tribe” or Mastodon instance is a tiny “Twitter” server. When you signed up to Twitter, you expected a service, not a tribe. On the other hand, because anyone can run a service, several instances have their own unique identity, whether it's a public or private instance, who they accept to join and what content moderation policies they have.
The idea that you can start your server and join the conversation with other servers is mind-blowing. This is why a big tech company or the wealthiest person in the world can’t buy the Fediverse, it’s made up of different disparate parts, and you can move to any server you want based on the same open-source program.
Once you start thinking harder about these issues, you’re one step away from discovering the Fediverse. You’re going to find an app for almost every social activity on the internet running on the same principles:
Notwithstanding my excitement about the Fediverse, I am still using Twitter.
And therein lies a pretty hard truth about social networks. Many of the networks I created following users on Twitter can’t be ported over to Mastodon simply because these users aren’t there. So, if I wanted to follow my latest insights on law twitter and journalists, it appears that Twitter is inescapable.
So, I would discount the reports of Twitter (or Facebook) meetings its demise without the wholesale movement of people off it. Far more than features and content, it appears that the actual value of a social network is the number of friends on it.
Heidi Li Feldman (@[email protected])With thanks to @konrad and @pedantka for the precedents, I have created a Google form to help build a list of #lawyers #lawprofs #legalacademics for a #LawFedi hashtag. Consider adding yourself to to help folks find you and each other. Google form: https://forms.gle/hzzbqzvq754NQzDv7 #LawFedi spr…MastodonIn the meantime, you can check out this post collecting lawyers on the Fediverse.
I’d be keeping my Mastodon app account shortcut pretty on my phone next to my Twitter app for now.
Love.Law.Robots. – A blog by Ang Hou Fu
One can have a variety of opinions about the pandemic but I will insist on this one. It made everyone treat online not as a cute sideshow, but as an essential part of working life.
While stuck at home, I made it a point to attend any conference or talk online that seemed adjacent to my interests. I attended talks on machine learning and AI. I even learnt a bit of linguistics.
One of the more life-changing seminars I attended was the first Bucerius Legal Tech Essentials in 2020. In short, I highly recommend it for someone who doesn't have much time but needs to dive deep and swim wide in this field. They lived up to their taglines: “ Curated. Intense. Remote. “
You swim wide because they cover a wide gamut of speakers, from academics, thought leaders and entrepreneurs with their own LegalTech companies.
You dive deep mainly because the speakers are talking about their expertise (this isn't a panel show). I recalled that many speakers took questions, so you can engage with them.
The only bad thing was that since all the speakers were based on both sides of the Atlantic, the timing was horrendous for the other side of the world. I remember falling asleep in front of my desk, trying to figure out the Six Sigma rule around 1 in the morning.
Nevertheless, I didn't think I was the only person from South East Asia attending the talks. During the customary roll call of various attendees at the start of each session, you would get a taste of how global interest in LegalTech was.
People in Singapore would also get a taste of Bucerius Legal Tech Essentials when Prof Daniel Katz, one of the “hosts” of Legal Tech Essentials, gave a lecture in 2021 at SMU, Singapore. It was a whirlwind of 500 slides in 60 minutes. Note that there are no certifications or brownie points for attending or interacting. These people stayed up late for the LegalTech.
It seems that being in Singapore has borne other fruit. 2022's Legal Tech Essentials would feature timings more convenient for this part of the world. This means 8:30 pm here... which I reckon is a marked improvement over 1 am.
Legal Tech Essentials 2022Curated, Intense, Remote.You can sign up for updates at their site.
So if you're interested in the field but don't know where to start, I strongly recommend this. I didn't enjoy it as much in 2021 since I found most topics less effective a second time. Maybe I will give this another try.
At the end of 2021, I repeatedly feared that online seminars would be buried and in-person conferences would be back in vogue. I'm glad that Legal Tech Essentials is back and still remote. It was a light in a very dark time of the pandemic, but now I hope it will still light a few light bulbs to anyone interested in Legal and Technology.
Love.Law.Robots. – A blog by Ang Hou Fu
Like most people, I hate to be wrong. But if I got things right all the time, I’d be a judge, not a blog writer.
More than a year ago, I highlighted the only case on the Personal Data Protection Act I am aware of that has reached the High Court. It was a “rare sighting” of a private action under the Personal Data Protection Act (PDPA).
In the post, I concluded that the right of private action was “meaningless” because the High Court held that you cannot claim “distress and loss of control”. That was, after all, what most people face when their privacy is breached. Even so, I thought that individuals going after companies for a breach was too much for one person to bear. That case, after all, concerned a rich, disgruntled data subject facing an intransigent data controller.
The case had gone on appeal to the Court of Appeal, which is understandable, given that the PDPA has never been before the highest court of the land, so clearly there are interesting and novel legal questions to be heard.
Furthermore, the Attorney General’s Chambers (AGC) also participated in the appeal. This is noteworthy because it intervened in essentially a private action. However, as mentioned above, the questions are novel, so the drafters of the PDPA should have a say.
The AGC's submissions largely echoed what I accepted in my previous post. This was essentially how we expected to read the legislation. This included accepting the general belief that emotional distress is not claimable under law.
Well, the Court of Appeal has spoken, and I was wrong.
The Court of Appeal held that “distress and loss of control” can be the subject of a right to private action. This was different from the common law, which generally does not regard emotional distress as actionable. (You can’t make a claim against another person for making you feel sad; such is “the vicissitudes of life”.)
What do I read from this? The Court probably abhors meaningless rights. As noted in my previous article, following the lines of the Government and the High Court’s judgement, the private action was not useful to anyone who had their privacy breached.
With the Court of Appeal’s pronouncement, the right to private action has more life in it. However, it’s still probably impracticable to exercise. Not only does a claimant have to bear the costs and stress of litigation, but it also depends on the actions of the respondent. In the instant case, the respondent explicitly (and inexplicably) refused to undertake not to use data without consent. The private action would be wholly unnecessary if everyone acted reasonably.
It was surprising to me that the Government’s position was not accepted by the Court of Appeal. The big picture is that there will always be some uncertainty about how the Court would read a piece of legislation in a dispute. This might make the Government’s recent insistence that only Parliament can decide what is marriage more understandable.
For now, until the Court of Appeal says so, maybe we shouldn’t be too confident when we make predictions on what the law is.
Love.Law.Robots. – A blog by Ang Hou Fu
If you’re interested in technology, you will confront this question at some point: should I learn to code?
For many people, including lawyers, coding is something you can ignore without serious consequences. I don’t understand how my microwave oven works, but that will not stop me from using it. Attending that briefing and asking the product guys good questions is probably enough for most lawyers to do your work.
The truth, though, is that life is so much more. In the foreword of the book “Law and Technology in Singapore”, Chief Justice Sundaresh Menon remarked that technology today “permeates, interfaces with, and underpins all aspects of the legal system, and indeed, of society”.
I felt that myself during the pandemic when I had to rely on my familiarity with technology to get work done. Coincidentally, I also implemented my docassemble project at work, using technology to generate contracts 24/7. I needed all my coding skills to whip up the program and provide the cloud infrastructure to run it without supervision. It’s fast, easy to use and avoids many problems associated with do-it-yourself templates. I got my promotion and respect at work.
If you’re convinced that you need to code, the rest of this post contains tips on juggling coding and lawyering. They are based on my personal experiences, so I am also interested in how you’ve done it and any questions you might have.
Lawyering takes time and experience to master. Passing the bar is the first baby step to a lifetime of learning. PQE is the currency of a lawyer in the job market.
Well, guess what? Coding is very similar too!
There are many options and possibilities — programming languages, tools and methods. Unlike a law school degree, there are free options you can check out, which would give you a good foundation. (Learnpython for Python and W3Schools for the web come to mind.) I got my first break with Udemy, and if you are a Singaporean, you can make use of SkillsFuture Credits to make your online learning free.
Just as becoming a good lawyer is no mean feat, becoming a good coder needs a substantial investment of time and learning. When you are already a lawyer, you may not have enough time in your life to be as good a coder.
I believe the answer is a strong no. Lawyers need to know what is possible, not how to do it. Lawyers will never be as good as real, full-time coders. Why give them another thing to thing the are “special” at. Lawyers need to learn to collaborate with those do code. https://t.co/3EsPbnikzK
— Patrick Lamb (@ElevateLamb) September 9, 2022
So, this is my suggestion: don’t aim to conquer programming languages or produce full-blown applications to rival a LegalTech company you’ve always admired on your own. Focus instead on developing proof of concepts or pushing the tools you are already familiar with as far as you can go. In addition, look at no code or low code alternatives to get easy wins.
By limiting the scope of your ambitions, you’d be able to focus on learning the things you need to produce quick and impactful results. The reinforcement from such quick wins would improve your confidence in your coding skills and abilities.
There might be a day when your project has the makings of a killer app. When that time comes, I am sure that you will decide that going solo is not only impossible but also a bad idea as well. Apps are pretty complex today, so I honestly think it’s unrealistic to rely on yourself to make them.
It’s related to tip 1 — you’d probably be able to learn faster and more effectively if you are doing things related to what you are already doing. For lawyers, this means doing your job, but with code. A great example of this is docassemble, which is an open-source system for guided interviews and document assembly.
When you do docassemble, you would try to mimic what you do in practice. For example, crafting questions to get the information you need from a client to file a document or create a contract. However, instead of interviewing a person directly, you will be doing this code.
In the course of my travails looking for projects which interest me, I found the following interesting:
I wouldn’t suggest that law is the only subject that lawyers find interesting. I have also spent time trying to create an e-commerce website for my wife and getting a computer to play Monopoly Junior 5 million times a day.
Such “fun” projects might not have much relevance to your professional life, but I learned new things which could help me in the future. E-commerce websites are the life of the internet today, and I experiment with the latest cloud technologies. Running 5 million games in a day made me think harder about code performance and how to achieve more with a single computer.
Not many people think about this, so please hang around.
When I was a kid, I had already dreamed of playing around with code and computers. In secondary school, a bunch of guys would race to make the best apps in the class (for some strange reason, they tend to revolve around computer games). I learned a lot about coding then.
As I grew up and my focus changed towards learning and building a career in law, my coding skills deteriorated rapidly. One of the obvious reasons is that I was doing something else, and working late nights in a law firm or law school is not conducive to developing hobbies.
I also found community essential for maintaining your coding skills and interest. The most straightforward reason is that a community will help you when encountering difficulties in your nascent journey as a coder. On the other hand, listening and helping other people with their coding problems also improves your knowledge and skills.
The best thing about the internet is that you can find someone with similar interests as you — lawyers who code. On days when I feel exhausted with my day job, it’s good to know that someone out there is interested in the same things I am interested in, even if they live in a different world. So it would be best if you found your tribe; the only way to do that is to develop in the open.
I find that it’s vital to be open since lawyers who code are rare, and you have to make a special effort to find them. They are like unicorns🦄!
So, do lawyers need to code? To me, you need a lot of drive to learn to code and build a career in law in the meantime. For those set on setting themselves apart this way, I hope the tips above can point the way. What other projects or opportunities do you see that can help lawyers who would like to code?
Love.Law.Robots. – A blog by Ang Hou Fu
If you spent long enough coding, you would meet this term: refactoring. The Agile Alliance defines it as “improving the internal structure of an existing program’s source code, while preserving its external behavior”. To paint a picture, it's like tending your garden. Get rid of some leaves, trim the hedges, and maybe add some accessories. It's still a garden, but it's further away from ruin.
In real life, I don't have a garden, and I also hate gardening. It's not the dirt, it's the work.
Similarly, I am also averse to refactoring. The fun is bringing your idea to life and figuring out the means to get there. Improving the work? I will do that some other day.
Lately, I have had the chance to revisit some work. In my latest post, I transform my
pdpc-decisions work to scrapy. It's something I put off for nearly a year because I was not looking forward to learning a new framework to do something I had already accomplished.
Take your web scraping to a new level: Let’s play with scrapyChanging my code to scrapy, a web scraping framework for Python, was challenging but reaped many dividends.Love.Law.Robots.HoufuPlease don't be too put off by the cute spider picture.
In the end, the procrastination didn't make sense. I was surprised I completed the main body of code within a few days. It turned out that my previous experience writing my web scraper helped me to understand the scrapy framework better.
On the other hand, revisiting my old code made me realise how anachronistic my old programming habits were. The programmer in me in 2020 was much different than I am now. The code I would like to write now should get the job done and be easy to read and maintain.
I reckon in many ways, wanting the code to be so perfect that I could leave it out of my mind forever grew from my foundation as a lawyer. Filings, once submitted, can't be recalled. Contracts, once signed, are frozen in its time.
My experience with technology made this way of thinking seem obsolete. Our products are moulded by our circumstances, by what is available at the time. As things change, the story doesn't end; it's only delineated in chapters. The truth is that there will always be another filing, and a contract can always be amended.
I reckon that lawyers shouldn't be stuck in their old ways, and we should actively consider how to improve the way we work. As time goes by, what we have worked on becomes forgotten because it's hard to read and maintain. I think we owe it to society to ensure that our skills and knowledge are not forgotten, or at least ensure that the next person doesn't need to walk the same path repeatedly.
As I look into what else in my code needs refactoring, I think: does the code need to be changed because the circumstances have changed, or because I have changed? Sometimes, I am not sure. Honestly. 🤔
Data Science with Judgement Data – My PDPC Decisions JourneyAn interesting experiment to apply what I learnt in Data Science to the area of law.Love.Law.Robots.HoufuHere's a target for more refactoring!
Love.Law.Robots. – A blog by Ang Hou Fu
A recent disciplinary case in Singapore, [Law Society of Singapore v Mohammed Lutfi bin Hussin](https://www.elitigation.sg/gd/s/2022SGHC182) , highlights a common pitfall in legal practice. A lawyer failed to witness the signing of conveyancing documents personally but attested to doing so. Few people may pay attention to a routine conveyancing transaction. Still, this time, the transaction was tainted by fraud: a mortgagor had submitted false documents to a mortgagee to obtain a higher loan. The lawyer’s license was suspended for three years for claiming to have witnessed the signing when he didn’t.
There’s an uncharacteristic lack of remorse on the lawyer’s part compared to other disciplinary cases. Here’s how he described his practice, which seems rather ordinary at first glance:
This was a routine purchase of the Property by [a buyer] financed by a loan taken from a bank. The transaction could be carried out without my seeing [the Buyer]. My staff are fully capable of dealing with routine transactions such as [the Buyer’s] purchase of the Property. If anything out of the ordinary crops up, they will inform me and I will then see [the Buyer] and sort out whatever problem has arisen. There were no issues at all relating to [the Buyer’s] purchase and for that reason, I did not have to see him.
In contrast, here’s what the Court of 3 Judges (in charge of lawyer discipline) thought of that:
[The lawyer] had put in place a “system” pursuant to which he entrusted his non-legally trained staff to carry out conveyancing transactions, including witnessing the execution of conveyancing documents, so that he did not have to meet his own clients, unless he deemed it necessary. Under this “system”, he presupposed that everything was in order until and unless his staff flagged any issues. In relation to [the Buyer’s] conveyancing transaction, nothing out of the ordinary was brought to his attention. He therefore assumed that all was in order and never met [the Buyer], notwithstanding the fact that the latter had engaged him as his conveyancing solicitor.
It’s important to note that witnessing someone sign a document isn’t likely to have stopped the fraudulent transaction. The nub of the issue was that the lawyer had claimed to do something he did not. The Court recognized that some might call this “technical dishonesty”.
But what’s the point of witnessing someone sign a document? The main idea is that it prevents fraud. Anyone can put anyone’s signature anywhere. The lawyer ensures the signor’s identity, understands the document, and there are no signs of duress or misunderstanding.
Who wants to do an E-Will?COVID-19 offers an opportunity to relook at one of the oldest instruments in law — wills. Is it enough to make them an electronic transaction?Love.Law.Robots.HoufuA similar problem persists in the area of wills and testaments.
Post-pandemic, though, alternatives are apparent but with questionable legality. If a lawyer witnesses a signing through Zoom, does it count? If e-Signature can be used, what value does being in person add? Banks don’t use lawyers to prevent fraud all the time too. Document submission, such as income and particulars, can now be received directly through the relevant government agency and authenticated fairly securely by the applicant. The wonders of SingPass!
The question is, would the lawyer have escaped sanction if there was actually a “system” in place? The Court describes this as a “non-system” because the lawyer had abdicated his responsibilities to non-legally trained staff. But what if the lawyer had implemented a system to train his staff on when to escalate, use checklists, verify the work, and carry out audits? Would that be enough? Or is the point that no matter what, the lawyer must be physically present?
We aren’t going to find out because everyone understands that witnessing a signing has to be personal. Furthermore, this is a strict requirement promulgated by legislation, so it’s non-negotiable.
These issues are essential because conveyancing is a prime example of volume work in the legal profession. If a lawyer has to be physically present at every stage of the transaction, this would slow down the process and make it expensive. The practice would be harder to justify in the face of more efficient and cost-effective solutions. More people would believe its objective is to maintain a monopoly for lawyers. Even lawyers may be hard-pressed to find efficient ways to do business and inadvertently find themselves on the wrong side of the law.
For now, legal innovators trying to automate manual processes or implement a “system” would have to be careful if they involved any attestation. It’s the law; you can’t change it, and breaking it would get you in hot soup, no matter how dissatisfied you would be.
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 earlier post explored another common pitfall.
Love.Law.Robots. – A blog by Ang Hou Fu
This is one of the most interesting legacies of the Parti Liyani case: a Public Defenders Office. I don’t know how a Public Defender would have changed this story though — the accused’s counsel worked pro bono and by all accounts, performed admirably for his client.
A very, very expensive ordealA domestic worker’s attempt to get compensation from the prosecution for a wrongful conviction shows how difficult it really is.Love.Law.Robots.HoufuParti Liyani's case has become prosaic in highlighting the accused's difficulties in Singpaore. In a post last year, I wished for more legal aid.
Whatever it is, it’s finally here. As generations of criminal law students are taught, Singapore follows a crime control model. We trust the police and prosecutors to get the case right.
A public defender’s office constituted under the Ministry of Law would provide another outlet for the accused to get legal representation and definitely improve the accused’s rights here. Does this mean ( gasp ) that we are moving to a rights-based society?
The emphasis here is [another outlet](https://www.todayonline.com/singapore/how-new-public-defenders-office-differ-lawsoc-criminal-legal-aid-scheme-1866531?cid=internalinarticlelinksweb07072022tdy). There is already the CLAS scheme run by the Law Society in Singapore (and also LASCO, but the parallels are not as strong). They also serve similar functions — giving needy accused the ability to get legal representation for criminal offences. The overlap is so apparent, that some lawyers believe it may cause confusion.
Personally, I feel that there is a lot to scratch under the surface.
First, many criminal law practitioners don't start out as lawyers. They started as police officers or deputy public prosecutors. It's part of the basis of SUSS. In this area of law, knowing the internal workings of the police is great value for your clients.
Essentially, choosing to work in this area of law straight out of law school is uncommon. That makes sense: the money is modest if your client is of modest means. The pro bono spirit is not enough to feed a young family.
Criminal, family law need more practitioners to meet demand: IndraneeThe criminal and family law practice areas are seeing a “hollowing out”, and more practitioners will be needed to meet the sustained demand, said Senior Minister of State for Law Indranee Rajah.TODAYNg Jing Yng
Second, for younger folk, working for the government may be less risky than a small law firm. You can write that in your CV.
Of course, the implementation of a great idea is worth more than the idea itself. In an ideal world, there would be transfers between public defenders and deputy public prosecutors. The accused can choose to be represented by a public defender even if such assistance came from the government.
In a less ideal and plausibly realistic situation, a public defender is a dumping ground for lawyers waiting for the next assignment. Stark differences between prosecution and defence underline the government’s policy that this was always about legal aid, not the accused’s rights.
So which way would this turn out? It depends on whether we had a change of heart. Top management asserts that the prosecution acts in the public's interest (which includes treating the accused in an even-handed manner). A public defender's office is an opportunity to reinforce a change in perspective. Time will tell when actions speak louder than words.
Love.Law.Robots. – A blog by Ang Hou Fu
Bar admission applications in Singapore are mainly administrative and symbolic affairs. If you missed the big one in July/August, you would gather in a chamber and have your admission acknowledged by a High Court judge. That would be the last time they would ever see a court robe for some.
In a rare show of drama, six applicants had to wait for their admission to the bar. Five of them cheated on the bar exam in 2020 by sharing their answers on WhatsApp. One colluded with another but fought the charges. All of them had, anyway, retaken their exams and passed. At the Attorney General’s proposal, their admission to the bar should be delayed by six months or a year so that they can “reflect on their error”. Choo J agreed.
 SGHC 87Choo Han Teck J:You can read the full facts and reasons of the case in the judgement of this case here.
Update: Originally Choo J decided to anonymise and seal the case, so that the identities will not be revealed. Choo J reversed his decision on 27/4. “strong sentiments may sometimes interfere with the proper understanding of the idea of second chances.”
Choo J’s concluding remarks, in his characteristic brevity, are worth reproducing:
Measuring justice is never an easy task. Judges are ever mindful not to set standards that they themselves cannot achieve. They are loathe to shut the door on a wrongdoer with no prospects of redemption. But they also have a duty to prevent a repeat of the wrong, and to do so without breaking young backs in the process.
Some might claim that their treatment is too lenient. Don’t we expect lawyers to represent the highest standards of honesty and integrity? Wouldn’t cheating in an exam for bar admission strike at the heart of all that?
However, if the bar exam is supposed to show one’s readiness to become a lawyer, I start to feel conflicted. Do we expect lawyers to collaborate or show off their mettle doggedly? The approach would likely result in a better product for the court or the client is obvious.
If you start walking down that path, how we conduct bar exams becomes questionable. How much of civil procedure we learnt then is relevant today? Does everyone need to know about family law when only a minor subset of us will specialise in it? Do we need to test people who recently graduated from law school all the things they learnt from law school again (or find something they might have missed)?
I remember very little about what I studied or was tested on in my bar exam. Indeed, this shows how the bar exam has such little bearing on my activities in the law today.
I hope this incident is an awkward reminder of how relevant the bar exam is today. Interestingly, other jurisdictions are relooking the bar exam radically, though they have not taken that step. I like how this Above the Law article summarised the nub of this issue.
The bar exam has been a
rite of passagebarrier to entry for lawyers in America since the late 1800s. After more than 130 years of forcing would-be lawyers to go through months of intense study of laws they’ll never need to know in actual practice, the bar exam will finally be changing — four years from now.
Ideally, the new test will focus on seven skills areas, including client counselling and advising, client relationships and management; legal research; legal writing; and negotiation. It hasn't been implemented, and it's easy to be cynical about this.
Cheating should not be allowed on a test to assess your capability. But unwittingly these applicants might have drawn attention to something worth considering: what is the place of the bar exam, and is it instrumental in transitioning a student to practice? The absurd result is that those who wish to be admitted to the bar might have to learn to cheat on the bar exam to prepare them for the real world.
Love.Law.Robots. – A blog by Ang Hou Fu
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?
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.
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.
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.
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.
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?
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.
Love.Law.Robots. – A blog by Ang Hou Fu