There is a growing number of advocates of coding for lawyers. Their approaches can range from general tech awareness to writing actual computer code. In this post, I want to talk about lawyers writing code; specifically, turning contracts into code.
Practical Challenges of Programming
Let’s get this out of the way first, code as contracts is far off in the future, if at all. While I appreciate the enthusiasm blockchain and smart contracts have brought into this space, I don’t think widespread adoption is likely. Practically, lawyers need to learn how to code. This is not a trivial task. Even if we could coordinate month-long CLE programs that successfully teach the concepts, it also makes contracts even more inaccessible to the general public.
I say this regretfully, but we may have to wait for future generations who are taught programming as part of the standard curriculum before we can see such extreme versions of code as contracts.
Why Code for Lawyers?
Despite the practical challenges, I think it’s worth exploring why we’d want code as contracts. Perhaps through other means, we can achieve some of those goals today.
The significant advantage of code as contracts are the predictable language and the tools and benefits derived. The most persuasive reasons I’ve heard are as follows:
- Clear and unambiguous language
- Standardization
- Ability to model test cases
- Expanded analytics
- Developer tools like IDEs
Look and Feel of a Programming Language
Let’s talk about how coding language looks. Typically, you are limited to a set of keywords that are precisely defined. For example, the word “or” in plain English might mean either of the options, but can it be both? The idea of an inclusive-or or exclusive-or would be strictly defined in a programming language but left ambiguous in plain English. You would only have this one “or” keyword to express this idea. The use of another word like “conversely” would not be available. The language is strictly regulated, and lawyers may begin to standardize common legal concepts because there are fewer ways to express the same idea. Code would restrict the freedom of drafters to write artistically, but that restriction would also bring a level of predictability.
Ability to Compute Your Text
Most coding languages remove ambiguity so that a computer can use the instructions. If you think about blockchain smart contracts, they are designed to automatically compute and resolve the matter without lawyers or other human interaction. Where a computer can resolve issues automatically, you can pose hypotheticals and see the results. This would be incredibly useful for lawyers. You can model the various outcomes and better understand the risk. It’s a very short leap to say that you can create greater analytics and modeling. In contrast, today, most lawyers use their experience and gut-check instead of making data-driven decisions.
Tools of the Trade: IDE
Let’s keep this section short; the tools available are limited only by imagination. However, lawyers should be looking at the tools available to software developers with envy. One of the ways an Integrated Development Environment (or IDE) might support lawyers is the continuous hypothetical testing of contracts. Imagine drafting a contract and being able to pose situations to see what the results are along the way. Then, you can draft tighter contracts that account for more cases.
Conclusion
Tech-savvy lawyers are drawn to coding for many reasons. It promises an entirely new paradigm of contract drafting, though with its own disadvantages. But coding doesn’t have to be a binary choice, and you can choose to incorporate some basic programming features into documents to reap some of the benefits immediately. We talked about the idea of hybrid languages in an earlier post. You’re on the right path if you’ve ever put in blank fields in a template, placed documents on the web, or used a document assembly tool. I urge you to continue because it is worth it!