Disruption has been characterised as the displacement of an existing market, industry, or technology and the production of something new and more efficient and worthwhile. It is at once destructive and creative. Much has been written about the potentially disruptive effect of AI on the legal profession. However, disruption and innovation are not the same – they may be linked but are not necessarily so. In years to come simple legal advice may well be delivered through cognitive computing, but that is a long way off.
The fact is legal practice is difficult to disrupt because problems are solved through knowledge, experience, and judgment, and clients (rightly so) are inherently risk-averse when it comes to relying on a computer alone for that purpose. In relation to the universe of legal tasks performed by lawyers, the impact of technology is more likely to be the redistribution of work between the actors, such as managed service providers, in-house counsel, and law firms, rather than a seismic decline in legal work across the board due to an invasion of the profession by an army of I-Robot lawyers.
Properly designed, developed, and implemented, technology is an aid to provision of legal advice, not a surrogate service. For practitioners, technology is and will remain both a sword and a shield. Mattersmith is one such application. In this short paper, we illustrate our commitment to this approach by describing one of our core offerings, namely, supporting clients faced with a volume of confidentiality agreements. Whilst admittedly blowing our own trumpet in respect of the results of three years of R&D in our rule-based platform, Mattersmith, our purpose is also to illustrate how lawyers can and will thrive when they mobilise to improve productivity.
The NDA conundrum
NDAs are not trivial. If your organisation entrusts important information to another, much can go wrong that you might regret later. If you are receiving information, the basis on which you hold it should be clear and fair. Also, something often under-appreciated, is that there is a lot of law to a confidentiality agreement. So, what is it about NDAs that make some lawyers want to get them off their desk?
A volume of NDAs can rapidly become a problem, and a busy structured lending team can generate a decent number of them. When you are engaged in the business, you’ve usually got to sign an NDA to move your deal forward and must run language past Legal first (assuming Legal are taking on NDAs), even if it’s just a click-through. Everyone’s busy and time is probably not on your side. As the in-house practitioner, you often cannot review every NDA nor ask your team to do so – they have a business to manage – but you appreciate the importance of confidentiality agreements to your client.
Understandable, but nonetheless bad, practices can develop, with pressed lawyers developing ad hoc solutions. These might be reaching for the last contract they worked on which they know contains a relevant clause albeit needing adaptation, or obtaining a copy of a contract which they think represents the latest draft, the final agreed form, or the latest position on a given issue, thereby overlooking any number of factors which led to an agreed form of words. This can result in decisions being based on imperfect information and a gradual decline in productivity. Part of the problem is poor document management, but good document management is only part of the solution. There is a need to find content in a targeted way which reflects the subject matter of the user’s query.
Inconsistency in approach presents additional risks, such as weakening a firm’s position in dealing with a given counterparty day-to-day, or knowledge of past practices seeping into the market thereby undermining new negotiations. An inconsistency may be present in the stance taken by the firm itself, but also in the way it is represented by different external advisers.
Many organisations use paper-based playbooks. However, in our experience, they are not always a complete solution because they do not set out the decision tree with sufficient granularity. If the playbook does not address an issue fully, or at all, the lawyer can be left in a quandary on their instructions, necessitating a clarificatory call to the client and so putting a brake on the process.
Therefore, the short answer is often that NDAs are perceived as technical and time consuming when other matters are thought to deliver more value. That is where we come in. We solve a client’s everyday problems by providing a range of services, from fully outsourced support to providing Mattersmith out-of-the-box. We make a virtue out of doing so, rather than regarding NDAs as a necessary interim between paydays which must be managed at the lowest possible cost.
The first step is to understand our client’s position on the issues. This can vary from general acceptance of routine confidentiality agreements subject to limited exceptions that must be documented, to nuanced instructions on all issues that arise. We automate our instructions in the knowledge base of our platform, Knowledge.
Each confidentiality agreement we receive is uploaded into our repository, Doc-Tracker, as a Case, assigned to a team member, and given a response time according to the service levels agreed with the client. If they wish, members of our client’s team have access to their documents, can see the status of the work, the message streams, and a dashboard that displays our performance over given time periods.
Mattersmith’s team members use Doc-Tracker to communicate internally and with clients where that is helpful to them. Doc-Tracker serves as a repository of the documents, associated communications, and a transparent way in which a client can see both the progress being made and our performance.
Documents are reviewed twice by different team members: first, using our technology assisted review tool, Doc-Analyser, to ensure that every issue according to our client’s instructions is identified and dealt with; and secondly, a “four eyes” examination assesses whether any changes are necessary or desirable having regard to previous dealings between the parties or the urgency with which the NDA must be concluded (all in accordance with instructions). Doc-Tracker is searchable, amongst other things, by reference to the counterparty and so we build up a picture of likely sticking points.
For this purpose, we have developed and compiled into legal Concepts a comprehensive lexicon of words and expressions that characterise the clauses in a typical NDA (and other contract-types). Doc-Analyser enables the simultaneous search of a number of documents in all the common formats.
Doc-Analyser’s report highlights the instances of the Concept in each document, and the user can review a horizon of the words in context. Use of Doc-Analyser also helps to identify related provisions or obligations of a given theme, such as time for performance, that may appear throughout an agreement. In NDAs, related provisions can be identified relatively easily, but in longer contracts, such as master services agreements, this facility provides considerable time-saving benefits.
Although we can view and amend a document in Mattersmith, we find it is invariably quicker to work in Word. Each Concept has a name that corresponds to an entry in Knowledge. By selecting the Concept in the search result, the user is presented with the playbook rule or other content in Knowledge. In some cases, playbook rules become exhausted during negotiations, and so it is helpful to find trusted alternative provisions that may support a compromise.
A client’s approved language with which an NDA is to be marked up is stored in Knowledge. Where the language includes text that is fact-dependent, it is automated via a question and answer user interface using our document assembly module, Precedents, which is also used to generate complete NDAs for the client when dealing on its own paper, and to automate our covering correspondence.
The output of the review is shared with the client or the counterparty and progressed to conclusion. In doing so, Mattersmith is used to speed up the process wherever necessary.
We believe our systematic approach using Mattersmith reduces the risk of oversight, ensures consistency, improves productivity, and enables us to deliver a transparent service to our client.
What IF you can’t or don’t need to outsource?
In some cases, clients cannot ask someone to take on the responsibility of handling NDAs or a deal manager is tasked with sorting out the NDAs without relying on Legal. Where you are the lawyer responsible for a deal, your client may want you to help select from tens of potential counterparties, each of whom must be given a teaser and sign an NDA. Dealing with comments on the same NDA from numerous counterparties is difficult and time-consuming. On a big deal, it simply is not feasible for the in-house practitioner and external counsel cannot or does not want to delegate responsibility to another organisation.
Not all lawyers want to off-load NDAs. When you are experienced and do not have a volume of them every day, the chances are your client really needs you to give it consideration. As you are perfectly able to take a view, all you may need is quickly to refresh your mind on certain points or have ready access to trusted content from an experienced source that does deal with them every day.
Use of Mattersmith could provide real benefits. We can make our software available to end users and assist them to implement a solution that meets requirements. Alternatively, access to our on-line guide to NDAs, In-Confidence, may be the optimum solution. In-Confidence contains comprehensive playbooks, a clause library, and a template confidentiality agreement.
Lawtech is not a silver bullet for the automation of legal services and is unlikely to become so until (if ever) machines become cognisant of the reason and context of past decisions and learn from them to shape future decisions. For the foreseeable future, serious practitioners know that real value is achieved when subject matter experts use tools to apply their expertise quicker and in a smarter way.
CEO, Founder, Mattersmith Limited
Harvard Business School professor Clayton Christensen, source: https://www.forbes.com/sites/carolinehoward/2013/03/27/you-say-innovator-i-say-disruptor-whats-the-difference/#33925da36f43