Academic journal article The Journal of High Technology Law

Toward a New Language of Legal Drafting

Academic journal article The Journal of High Technology Law

Toward a New Language of Legal Drafting

Article excerpt


1. The Problem

1.1. what got me thinking

1.2. How lawyers draft and publish contracts

1.3. Why this is a problem

2. Solution

2.1. Thinking about the roles that contracts perform

2.2. More functional contracts

3. What This Could Look Like

3.1. Key Elements

3.2. Authoring in a legal markup language

3.3. Sharing content like a coder

3.4. What it could look like in practice: construction contracts

4. Possible Objections

4.1. Lawyers can't or won't draft like this

4.2. This won't be effective without industry-wide standards

4.3. This can be done as well or better within traditional word processors

4.4. The structure is vulnerable to changes in technology

5. How This Compares to What Others are Doing

6. Conclusion

List of Figures

1. Example clause

2. Example clause with markup

3. How a software interface can refer the author to other elements in their document, as they type

4. Example of a change to a HTML document tracked by GitHub

5. Screenshot of ContractExpress Author (BusinessIntegrity 2015)

List of Tables

1. Description of tags used in Figure

2. Examples of legal XML development

3. Examples of companies providing contract automation services

4. Examples of companies providing legal data analytics

1. The Problem

1.1. What got me thinking

A common experience of being a lawyer that you don't think much about process improvement or product design. The key focus for many lawyers is meeting client needs as quickly as possible and billable hour targets. Having been a transactional lawyer for several years, I had never thought of drafting contracts in anything other than Microsoft Word.

When I started my LLM I met math and engineering students, who were involved in various forms of data analytics, machine learning and natural language processing. They showed me their projects and the software tools they were using. I realized that in other disciplines, people are adept at switching between the languages of math, coding or natural language, often within a single document, in order to use the tool best adapted to the task at hand.

Taking classes in design, technology and law, I began to think about the potential for changing how we generate and access legal content. I began to reflect on how we access content in various forms through technology, and how far the design and accessibility of legal content lags behind what we now take for granted everywhere else. This paper explores the thought that there is an enormous potential functionality that can be added to legal content if lawyers make modest efforts to add machine readable structure to their drafting. Lawyers would enjoy learning new skills, and clients and lawyers alike would be excited to discover how the way they produce and access legal content could be transformed.

This paper discusses what authoring in a markup language might look like, some of the advantages that this could have, and some of the barriers to implementation. A related question is what it would take to shift lawyer behavior to this style of writing, and what transitional steps might be appropriate. This could be the subject of further work.

1.2. How lawyers draft and publish contracts

Lawyers draft documents in word processors that focus on formatting and final appearance, usually Microsoft Word. Their documents are almost universally accessible and editable by the lawyer's clients, the other side and the courts. Following initial preparation by a lawyer, a draft contract may be emailed back and forth many times, with the parties making and tracking various changes.

once the parties agree the terms, a junior associate tidies up the formatting of the document, prints it out and walks around town getting it signed. …

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