LegalSifter's blog on contract review & negotiation, legal technology, and artificial intelligence.
Every week we “kick off” new sifters—bits of software trained to spot a particular issue in contracts. Those sifters then go down the production line and are ultimately released to users. What sifters are kicked off in a given week can vary greatly. Maybe a dozen sifters targeting a particular type of contract. Or just a handful addressing a mix of issues. It depends on what’s going on at the time. In this post I’d like to consider one of the sifters kicked recently. It has something to say about our process. The sifter in question is “Jurisdiction: Exclusive.” It wasn’t selected at one of our weekly meetings to consider new sifters. Instead, one of our advisors, Ken Adams, cheerfully announced that he had decided it should be one of our new sifters. Ken is in charge of creating the specifications for each new sifter. The specs explain what the sifter is looking for, and they provide a bunch of examples of relevant provisions. They tell us what types of language the sifter should find, what types of language the sifter should ignore, and why. The specs are incredibly important, because they define the scope of the sifter, and ultimately, its behavior when we use it on new contracts. Ken is better equipped for this task than pretty much anyone. He’s a transcendent figure in the world of contract drafting. Among other things, he’s author of the bestselling A Manual of Style for Contract Drafting, published by the American Bar Association. His services are in demand internationally. If you’re not familiar with Ken and his work, you can find information at www.adamsdrafting.com. Anyway, back to “Jurisdiction: Exclusive.” Ken laid this new sifter on us because he had just done some research relating to jurisdiction provisions (also known as forum-selection provisions). Jurisdiction provisions say where a party may file a lawsuit against the other party. Ken had just read a new article on jurisdiction provisions, and that article helped him realize that exclusive jurisdiction can be expressed not only in jurisdiction provisions but also in consent-to-jurisdiction provisions. (If you want to understand what all that means, check out this blog post Ken did about it.) Equipped with that bit of intelligence, Ken realized that users would likely find it helpful to have a sifter that flags presence or absence of contract language providing for exclusive jurisdiction. And the help text would offer advice on how best to express the concept. In particular, in his blog post Ken points out that consent-to-jurisdiction provisions are utterly standard, but they’re not the best way to address jurisdiction. And when a contract features both a jurisdiction provision and a consent-to-jurisdiction provision, the consent-to-jurisdiction provision is redundant. In addition to being able to identify this issue and say something not only useful but also novel about it, Ken was also able to identify the various different ways that the concept of exclusive jurisdiction is expressed in contracts. For example, one of the verbs used in consent-to-jurisdiction provisions is attorn. It’s a peculiarity of Canadian drafting. We can count on Ken to know that sort of thing. Why am I telling you this? For two reasons. First, although we’re an artificial intelligence company, you shouldn’t assume that we’re all about technological sleight-of-hand. Instead, our technology serves to make old-fashioned expertise accessible to our users. They way Ken was able to quickly infuse a new sifter with his cutting-edge research on jurisdiction is a good example of how our product is driven by serious expertise. And second, it’s important you know where our expertise comes from. Relying on the expertise of others requires a leap of faith. Because we want you to be comfortable about making that leap of faith, we want you to know where we get our expertise, what’s involved, and how far along we are. Not all “experts” are created equal. If someone doesn’t tell you where they get their expertise—if, for example, they just refer airily to “expert lawyers” or some such—you can assume their “experts” aren’t so expert. We plan on continuing to tell you about our expertise and our experts. If you have any questions, let us know. Meanwhile, we suggest you have a look at the entry for “Jurisdiction: Exclusive” in our sifter library.
By Ken Adams Allow me to introduce to you Ned Barlas, LegalSifter’s new advisor on intellectual-property matters. I claim the credit for Ned joining us. Ned and I go way back, to 1988, when we were both on Penn Law Review. I was a comment editor; Ned was in the year below, so he was an associate editor. But don’t get me wrong. I’m not about to suggest this is a story of camaraderie forged in the white-hot heat of cite-checking campaigns. I recall little of Law Review, other than the mugs I created and sold. (Ned and I still have our mugs.) Instead, Ned and I reconnected ten years ago, though a friend of Ned’s. I found myself increasingly seeking his advice, and over the past year we’ve worked on a number of projects. So when LegalSifter decided to add some IP-heavy contracts to their document types, it was clear that Ned would be the ideal person to provide the expertise we needed. I’ve tried working with a few IP specialists over the years, and my collaboration with Ned has been the most fruitful. One reason is that Ned has a scholarly bent—instead of being expediency-driven and satisfied with halfway-plausible conventional wisdom, he worries at an issue from all angles. It’s also relevant that he’s game to allow me to hack away at whatever language he comes up with. He has plenty of the necessary experience, including 15 years at the law firm Akin Gump. And somehow we manage to have fun. But why Ned is interested in working with LegalSifter? I suggest it’s a function of the same restlessness that had him joining a small Philadelphia-area law firm in 2017. He found he wasn’t satisfied with being wheeled in to provide IP advice on big deals. He wanted to be able to better serve his clients and build a practice that better reflected his interests. And he also wanted to leverage his expertise in some manner. LegalSifter gives him the opportunity to do that. For example, you’ll soon be able to use LegalSifter to help you review sponsored research agreements. Ned’s expertise is playing a big part in the determining what sponsored-research-agreement issues our technology looks for and how it looks for them, and it's playing a big part in the help text users will be offered. My LegalSifter colleagues and I look forward to continuing to work with Ned. Ken Adams is author of A Manual of Style for Contract Drafting and an advisor to LegalSifter.
Ken and John's conversation focuses on the role of boilerplate in contracts: the challenges of interpreting it and eliminating confusion.