One of my clients referred me to this video and it is terrific. Besides its opening sentiment, the video highlights the importance of a good contract and has an attorney giving his perspective. This is definitely worth watching.
I thought I was being relatively radical and progressive when I wrote about how the approaching legal documents business singularity but it seems I was just joining a crowd of progressives. Two recent posts caught my attention recently which illustrate this growing trend.
In the first post, titled "Standardizing (vs. Reforming) Contract Drafting", William Carlton talks about open sourcing legal documents by opening up law firm precedent banks to the general public. In his response to a post on Koncision blog arguing that legal documents open sourcing just isn't happening in a meaningful way, Carlton said the following:
Ken, I really mean open sourcing, not crowd sourcing. The place to start (I think) is to simply "out" the template banks that every law firm keeps. 2007 was the dark ages, in web terms; it will not be possible to keep templates off the web much longer. And business lawyers shouldn't try. (Prediction: the most successful won't.) The profession should embrace transparency and move on to charging clients for counseling, negotiating, customizing. Not for unveiling the boilerplate.
Carlton points to news that international legal group, DLA Piper, reportedly intends dropping the walled garden around its precedents which it restricted to its clients (a major legal group already sharing its precedents with its clients). The Koncision post was partly in response to an earlier post by Carlton titled "Open Sourcing Legal Docs" which explores the idea of making legal precedents publicly available as part of a broader process of identifying best practices and almost standardizing sets of documents based on those best practices. Carlton concludes that post with the following observation:
And the legal profession will do just fine. Right now the industry is still behaving as though there is proprietary value in standard boilerplate documents, and the opposite is true: there is tremendous public value in the documents, and unleashing that value helps clients and lawyers alike. The sustainable proprietary value is in counseling what, when, how, and why not or why something else instead.
The other post which inspired this post is the second part of a series of posts titled "Developing CAD for Law" on the Contract Analysis and Standards blog. This second post talks about how legal documents have an almost modular construction and the goal of a contract development platform would be to take blocks of text or clauses that can be combined, forming coherent legal documents appropriate for specific circumstances. I pointed out a service which does something similar in my previous post. Another interesting approach is a comparative approach to certain types of documents aimed at distilling the best clauses to be incorporated into the intended document. The example I came across is a template for an End User License Agreement on the kiiac site.
This all points to an increasing shift away from document-based legal services to what the legal services business should be: applying legal knowledge to specific situations and formulating effective legal frameworks to meet clients' needs. Legal documents become analogous to software applications with variable functionality. The real value is in the knowledge and skill that produces not only those applications but also develops the appropriate and broader framework.
I mentioned in my previous post that I will be releasing my documents under a Creative Commons license. I have selected the Creative Commons Attribution-ShareAlike 2.5 South Africa License for my documents and my first release under the "web.tech.law legal docs" brand is an agreement for photographers which I published to the web.tech.law Facebook page yesterday evening. This first document is available for free although future documents be paid "apps". I will expand this offering in due course to include a support model for these documents. The document is available for download and comes with an explanatory note:
Having your contracts prepared and signed is only part of your contract management process. It is usually also only the beginning of what could be a long relationship with your contracting party. It makes sense to give some serious thought to an ongoing contract management process for you business. Reasons for this include -
If you haven't taken stock of your contracts with other parties, a good starting point is to conduct a form of due diligence through which you collate all documents with contractual significance (these includes both contracts themselves as well as any other documents which could have a bearing on contract terms such as emails, appendices, memoranda of understanding, letters and other documents. Many people forget that a binding contract need not be a formal document setting out the contractual framework and signed by both parties. Documents with contractual significance (and which could form part of an overall contractual framework) could include letters, notes, faxes, emails, instant messages and even sms's. All of these documents and data should be collated and analysed to determine their significance and impact.
Having conducted a review of your company's contractual frameworks, it is a good idea to develop and implement an effective contract management processes which may include -
Aside from managing the documentation informing your contractual frameworks, it is also advisable to implement appropriate policies within your organisation to guide how contracts are entered into and who may do so on your company's behalf. In an environment where emails, instant messages and tweets can give rise to binding contracts, companies must clarify who has contractual authority within their organisations and with their contracting parties. Those people with authority to bind the company should be subject to a review process to ensure they are complying with the company's guidelines.
It is also becoming a necessity that companies not only make sure they have adequate email disclaimers but also appropriate terms and conditions to govern communications on social media platforms.
Contract management processes take a fair amount of planning and work to implement but they will be more than worth the effort. There are a number of useful contract management resources online which you may find useful including the UK National Audit Office's "Good practice contract management framework".
I wrote about the coming legal practice singularity recently. Legal practice is changing rapidly and the prospect of a sufficiently advanced artificial intelligence to start taking over many legal research and similar tasks is fascinating. Unfortunately for many lawyers the wait may not be quite as long as it may take for such artificial intelligence to arrive on the scene.
Lawyers are accustomed to services that offer standard contracts for reduced prices. Some retailers and bookstores have been selling common agreements like leases and powers of attorney for quite some time now and there are a number of online options too, including Law Unlocked which was pointed out to me today. The next step is a site which promises a DIY solution which should scare lawyers who rely on legal documents themselves for their fee income.
Desktop Lawyer offers a self-service option to customers whereby they can have fairly complex agreements like shareholders agreements prepared for them by answering a series of questions. The process is apparently so dynamic that you actually see the document take shape as you work through the questions. The end result is a document that goes beyond the current "one size fits all" model because the service's users will be able to download a fairly customised agreement that better suits their specific needs. This is unlikely to be the end of the road for the technology and we will likely see more and more advanced solutions that will replace lawyers whose focus is document production as an end in itself. In other words, the market for "search and replace" precedents will give way to these sorts of smarter and more cost effective solutions.
This likely future touches on my thoughts about the current legal services model and the very real need for lawyers to rethink the value proposition in their work. The days of value being based on time or documents are just about over and lawyers who can't adapt will struggle to survive. The value in legal services is in lawyers' knowledge of the law and how to use the law to develop appropriate and effective legal frameworks for clients. The documents reflecting or embodying those frameworks are worth about as much as the paper they are printed on.
In keeping with this emerging reality, I am rethinking what my clients will be charged for going forward. We will start removing documents as line items in our invoices and effectively treat them as free. Documents we produce for our clients will be released to those clients under a Creative Commons license to enable clients to make more flexible use of those documents and I am working on a service for clients which will effectively release fairly standard documents to participating clients as a value add at no charge for the documents themselves. I am still working on the parameters of this pseudo-open source approach to legal practice and will ensure that important considerations like client confidentiality and custom legal frameworks are adequately protected but the days of charging for relatively standard legal documents are coming to an end.
Website terms and conditions are pretty tough to do properly. They are on just about every website you come across on the Web and are so prevalent that it is easy to take them for granted and also assume that they are all pretty much the same. Often how a website terms and conditions (I'll refer to them as "website terms" for the rest of this post) is drafted is a matter of personal style but a lot of thought and planning goes into a well drafted website terms.
Lawyers have different approaches to website terms. Some will look for seemingly complete website terms on the Web or in precedent libraries, change the names and details and push it out to their clients. Other lawyers will spend more time on a website terms and prepare a set of website terms that are at least prepared with the client's business in mind. Yet another group of lawyers will take a more involved approach which may include:
Leaving aside website terms' content, the way website terms are presented is also fairly important. Paper-based legal documents are frequently formatted using multi-level paragraph numbering because those paragraph numbers are the most convenient referencing system on paper. Clauses often refer to each other and lawyers need a convenient way to refer to parts of the document. Its just easier to refer to "clause 3.4.2" than it is to refer to "the clause that sets out the exception to the duration clause".
When it comes to website terms and conditions, the multi-level numbering convention still works (although it is probably a pain for developers to convert these documents into a website friendly format) but the result is often a fairly intimidating block of text. Three good examples of this sort of website terms are the Zappon, Times Live and Facebook website terms:
Zappon:
Times Live:
Facebook:
Another approach to website terms is to dispense with multi-level paragraph numbering. An example of this approach is the Foursquare website terms:
Both of these approaches have merit. A couple formatting issues affect readability (usability experts can probably cite a dozen more): the effect of multi-level numbering on the document's apparent density, line spacing and the font used. In the Zappon website terms the multi-level numbering and line spacing make the text look pretty dense and not terribly enticing. On the other hand, the Times Live website terms (very possibly prepared by the same legal team) also uses multi-level numbering and is better spaced. The Times Live website terms are far easier to read than the Zappon website terms. The Facebook terms sit in between the Times Live and Zappon website terms.
On the other hand, the Foursquare terms dispense with multi-level numbering in favour of a simpler document structure (I tend to prefer this approach myself). The challenge with this approach is the loss of an easy paragraph referencing system with multi-level numbering presents. The solution is to use hyperlinks instead, the Web's referencing system. Although the basic layout makes the Foursquare website terms easier to read, the font detracts from that. The Zappon terms have a similar issue. This may be a personal preference but I find non-serif fonts to be much more readable that serif fonts when it comes to website terms. The Facebook and Times Live website terms use non-serif fonts. I have spent a little time reading about fonts in legal documents and while I just barely scratched the surface, it is a pretty interesting topic.
So why all the talk about readability? Website terms are contracts between website visitors and the website proprietor. Just as the Consumer Protection Act requires that contracts be drafted in plain language to make them more accessible and intelligible, formatting website terms to make them more readable achieves a similar objective. Website terms, when they deal with all the legal issues they need to deal with, are lengthy documents but they are important documents. If a visitor is immediately put off by the website terms' formatting, the visitor will be that much less inclined to read the document which will contain terms he or should really should read. The end result is that the website terms will not do what they are supposed to do.
This discussion may seem pretty abstract but it becomes pretty important in the context of consumer protection imperatives like the plain language requirement. It is also important from a contractual perspective. A contract should be clear and readable if it is to adequately support the agreement between the parties to it. Everyone should understand their rights and obligations and a dense body of text with numbered paragraphs renders the document virtually inaccessible.
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