Above the Law

Let’s face it fellow technology transactions attorneys, someday we are going to be replaced by machines. Last week I saw robotic surgery advertised, and if robots can do that, our legal niche is only steps away from obsolescence.

Those of us in the profession of helping software companies license ever more complex services composed of mind-bending algorithms, we secretly know it is coming. At some point, when technology buyers and sellers reach their meeting of the minds on business terms, they will turn to their trusty robo-counsel and have a license drafted to reflect each company’s risk tolerances and unique priorities. It will select from a mutually acceptable range of clauses and produce an agreement within minutes.

We see the coming rise of the robo-counsel in the increased use of automation for routine agreements. A mutual NDA is easy for companies to pre-sign and allow staff to download and forward to the other side. Click-through agreements are proliferating, even for sophisticated transactions. Using ‘fill in the blanks’ software, to create wills and complete tax forms is a familiar experience to many individuals. And contract negotiators armed with digital playbooks, are shifting cost for technology transactions down the value-chain.

We’re all helping this day arrive because it’s built on standardization. We don’t often talk about standard clauses but we all use them with minor variations because it speeds review and acceptance. Indemnification and confidentiality are examples of sections that read the same in many agreements. Look at enough contract playbooks and unless something is unique about a company’s product requiring a special twist, they are all substantially similar. These are heralds of increased agreement standardization to come.

Some things are keeping technology transaction attorneys a step ahead of the reaper. Leading the list are higher level reasoning and communication skills which are still difficult to squeeze into silicon. To practice at the top of our game requires creating bespoke agreements resting on standardized clause foundations. We need to be both business person as well as attorney, balancing deal making with risk prevention and able to clearly draft to reflect intent.

But the reaper is at our heels. In a robo-counsel dominated, ready-to-wear, contract world, we living attorneys will be the tailors of technology agreements, or, if we want to think kindly of ourselves, the fashion designers of contracts.

If you are among my brothers and sisters in this wonderful practice area, rest un-easy. Hone your craft. Learn your business as well as your law. Work to treat drafting like poetry, where every word has clarity of purpose and meaning. Focus on complex, high-value, technology contracts that will continue to need our counsel. Take heart in knowing that while a 747’s computer can land without a human hand, for now we still require pilots. For today at least, we have the edge.

John Statton is an Axiom attorney practicing technology transaction law in Silicon Valley where he keeps a whimsical eye on the future.