In the tech industry, the constant debate between the merits of proprietary software vs open source is well known. As most lawyers know, legal contract drafting is not dissimilar from the software coding process. Both rely on reusing common pre-developed material (software: code libraries; legal: precedents and boilerplate clauses) and customising it to suit the user’s purpose and requirements.
Law has always been viewed as an elite profession somewhat like a “proprietary knowledge club”. The word density and legalese of many contract documents in routine transactions hasn’t exactly helped shift this public perception either.
However, can a genuine free open source contract ecosystem model emerge to bypass lawyers altogether? There are some existing examples:
- GitHub, one of the open source software community’s main repository and collaboration forum has an open source style precedent library of startup investment documents contributed from US firm Morrison & Foerster.
- Docracy is interesting. This site has been described by many as a “GitHub for legal documents”. Lawyers can upload contact templates into Docracy’s repository which can then be freely downloaded and or adapted by public users. Most document templates have author drafting notes and version history changes which are comparable to most commercially licensed precedent templates. The majority of documents in Docracy appear to be basic contracts most useful for personal use and freelance, small business or startups e.g. NDA, consulting, employment agreement, etc. On a side note, Docracy also has an interesting feature which can track changes to website Terms of Service and Privacy Policies – e.g. instragr.am and can show visual compares in T&Cs between different dates.
- At the other end of the spectrum, a plain Google search will throw up plenty of online contract samples that can be used as baselines or comparative benchmarks for contract drafting. Many high-end corporate contracts are accessible in the public domain via SEC filings (with redaction) or can also be searched via content aggregator sites like RealDealDocs.com and OneCLE.com
The onward march of technology is unlikely to displace the wordsmithing skills of lawyers anytime soon but it will lead to more DIY contracting by people who would not otherwise be able to afford contract lawyers. The dilemma for open source law are the same as in software: Trust and Reliability – Free cost is always a compelling proposition but how legally reliable or accurate is the drafting? The importance of getting a business purchase or shareholders agreement right is probably several degrees higher than a NDA. Ken Adams, the well known US evangelist of plain english contract drafting has commented that “…mainstream contract drafting is dysfunctional, in terms of both language and process…” such that communal open source draft would simply further institutionalise fundamental bad drafting practices. I guess plain english drafting is itself a separate topic for debate…
Until Google develops a web tool to parse contract language against a realtime database of court decisions and apply analytical rules to give the drafter a machine-generated drafting accuracy or quality score, lawyers won’t need to fret any time soon.
Perhaps in the near future though, click & customise computer generated or freemium style downloadable legal contracts may not be such an absurd idea…
