The most recent post on Kingsley Martin’s Contract Analysis and Contract Standards blog is entitled “Garbage-in, Quality-out.” Here’s the conceptual underpinning:
I believe there is much to be learned from all sources of information. If there are any gems in the collection, then there is the possibility that “good” material can be identified. Indeed, we are all exposed to an enormous amount of data. How well we process this information depends on the sophistication of our filters. And, machines can also develop filters. IBM’s Watson, the Jeopardy playing computer, deduced mostly correct answers from unwashed Internet resources—and it trounced its human competitors.
And here’s how it plays out for purposes of contract drafting:
Contract analysis reviews a set of agreements and determines how the document is organized, what clauses it contains, and the range of standard and non-standard language. The first task of contract analysis is to aggregate all the source documents into one common outline, creating the agreement checklist. Next, the analysis finds all the matching clause elements, and for each branch of the outline, it constructs a clause library. Finally, algorithms examine all the clauses and identify the core (non-negotiated or deal neutral) language for each provision, together with the full range of deal-specific or alternative terms.
Kingsley is behind kiiac, the software that performs this analysis. (This March 2009 post on AdamsDrafting consists of my Q&A with Kingsley.) I routinely tell people that kiiac can be very useful, but these days I’ve felt compelled to point out also what to me is as clear as the nose on my face—that true quality in contract drafting isn’t amenable to a purely technological solution, whether that technology is kiiac or something else.
At the risk of my being lumped with what Kingsley describes as “common thinkers” who “tend to fixate on language,” here’s why I think that’s the case:
In crunching any set of precedent contracts, kiiac displays the most-common and less-common ways in which a given concept is articulated. Given the dysfunctional language of mainstream contract drafting, that’s very different from most-clear and less-clear, or most-pertinent and less-pertinent. So unless you have strong editorial control over how the raw data produced by kiiac are used, you’re at risk of recycling the conventional wisdom.
Furthermore, based on my brief experience with kiiac, the more heterogeneous a set of precedent contracts is, the more manageable are kiiac’s results. Of a given kind of contract on any law firm’s document-management system, it’s likely that many are based, directly or indirectly, on a few models. So if any law firm uses kiiac to parse those contracts and limits itself to that analysis, it might have a false sense of security regarding the universe of possibilities. And if kiiac were to digest a truly diverse assortment of precedent contracts, it likely would be less evident how you translate the results into contract-language choices.
And here’s what kiiac can’t do: It can’t come up with, for example, novel severability language or novel “force majeure” language that represents an improvement on the problematic language you see in contract after contract. And kiiac could never come up with, let alone explain, the language I recommend in The Structure of M&A Contracts. But in his blog post, Kingsley appears to suggests that if you’re doing anything other than using kiiac or some other form of automated transactional analysis, you’re “wordsmithing.”
Again, kiiac can be a very useful tool; I like to think that I’ll be a kiiac client at some point. And using kiiac and nothing else would likely result in contracts that are more effective than what you’d create through ad-hoc copying-and-pasting. But without a strong editorial hand at the controls, the results won’t be as effective as they might be. I think Kingsley overplays his hand by failing to acknowledge that.
By the way, in case anyone thinks that this is the beginning of some sort of flame war between Kingsley and me, we’ve had a chat and basically agree that our respective approaches complement each other. But we’re also committed to a robust marketplace of ideas. So take that, Kingsley!