Much of what I cover here tends to carry a technology bias while writing from a lawyer’s chair. This post is a little bit of both, and since its been a while, a little longer than usual.
NFTs and the looming supply chain disaster.
A few things technology and business that have really caught my imagination in the past few weeks. Still very early but unbounded potential for growth (and disaster).
First, NFTs. The game seems to be trivial though inflated. Saying that NFTs aren’t transforming how intellectual property is created and managed is true, well.. for now. Gas fees, limited use cases, first principle skepticism and outright denial - all valid concerns. What is exciting here is that a step has been taken toward finding a way to manage IPR on the blockchain. With the world on the cloud and intellectual property inevitably being published online - marrying blockchain with rights management/enforcement in an area best positioned for disruption is very very exciting. If you aren’t staying ahead of how blockchain and IPR intersect, and the possibilities to move the law to Web 3.0, you shouldn’t be in IPR. Nobody (read lawyers) likes me saying this, but I will say it here too!
Second, worldwide power shortages. Supply chain bottlenecks, the contagion is spreading.
While the second is a developing but important story that may impact our lives if it isn’t another media fuelled or fleeting damp squib (what in the world? Thats what we thought about Covid-19!), I ll leave this part of the blog behind with a question to Web 3.0 lawyer skeptics. Are there fatal limitations to what can be done with the blockchain and contracts/IPR? If so, what are they?
One thing technology can’t touch, for some time - deal lawyering.
Many who sought low hanging fruit tried attacking the deal lawyer as ripe for automation. Could have to do with many things - deal lawyers are closer to technology than litigators (though its changing and how), many see their jobs as “paper pushing” or “template driven”. High charge out rates for menial work by professionals at the lower run of the ladder doesn’t help. But this kind of lawyering has been most resistant to disruption even beyond my own limited expectations (or, as some might say, dreams?). Many deal lawyers I know have long transitioned their roles to key aspects that they know machines (or junior professionals) will not get to in a long time.
Lets look at why deal lawyering wont be automated so quickly.
Short answer is emotional intelligence. Yes, you read it right. Machines work with data, and not people. People accept data, but not as much as machines would like them to. Disclaimer - Many of the points below might apply to other areas of practice, I am just writing what comes easy to me.
Ok, so what does a deal lawyer do today?
Closing the deal:
Making things happens means you have to hold the initiative. This can be a counterintuitive role for lawyers who live in the wrold of the reactive. Your training militates against proactive. The first major re-education to be a corporate lawyer is to be able to run the show, not react to one that's already at play. Why this can be an emotional challenge is - you are trained to rail hard, fight hard, hold ground. Making things happens means doing the opposite. Knowing when to stand down, make space, step back, compromise and also cajole, sell and charm. Not something that law school teaches you, and not something machines will be able to re-enact, anytime soon?
Looking after your client:
This might seem less counter-intuitive here because aren't lawyers programmed to do this? We are. The catch is, here - clients interests are often intertwined with that of the company they are buying into. It isn't a binary between - their interests and our interests. Situations present themselves where it appears on the face of it, that the client's interests lie on one side and not another, when in fact they are not. One of the reasons this can happen is where lawyers are adopting a maximalist position that benefits the client versus the opposite party but compromises both in ways that reduces the size of the pie. I have often seen young lawyers fall into the charm of "fighting hard" for their client and I have done my fair share too, which is hindsight (or with the benefit of experience) would have revealed themselves to be situations where standing down and even harder, convincing your client to stand down, would have helped everyone. This sort of interest-based monkey balancing is also found in… the world of politics. Another field of human engagement that is even more resistant to technology, being a business that is after all, about humans and perhaps, can only be undertaken by humans?
Getting the best terms:
Most lawyers often focus on this early in their career not because it is important but because it flows from their training. It is important to remember that the "best terms" don't always mean that you are looking after your client (see previous paragraph). That being said, leaving things on the table can be a pretty incompetent approach as well. Knowing what can be realistically achieved, having a clear strategy to get there and ensuring you are leading the thought process - are the essential nuts and bolts of corporate law practice. A sign of basic competency and a reasonable expectation every client walks in with. All this doesn't mean its easy. Markets constantly evolve, and practices change with experience. Your clients come to you because you know what's contemporary, what will make the cut and bring with you the knowledge of basic expectations clients should have from deal. If you don't have this knowledge, it helps to me humble. It helps to keep your ears open, to have enriching relationships with the competition. There is only such algorithms “learning from deals” can achieve, as much as I would like to think more. You are in the knowledge game, but also in the interests game (human, emotional, business, political) and probably will not be outdone by machines soon.
Building a relationship:
A successful transaction means your client and the target work together, often for a long time. While you have to work on your clients interests, the people they do business together with include you. When more people join together in having a stake in making a deal they put together work - it increases the possibilities of a better outcome for all parties. Some like to call this “institutional memory” - it goes far beyond that - to relationships. Lawyers who hold relationships together are actual human beings upon whom accountability needs to rest, not because they are perfect but because they are human.
Being able to pare out all the riff-raff except core offerings that involve this level of intervention and value-add will be essential to legal professionals who look to ring-fence themselves from disruption. I write about deal lawyers being one, the description of lawyering I shared above is adaptable and applicable in any niche areas of practice.
If doing so is not for you and you want to break out of the traditional (still meaningful and well-paying) mould, you are better served by up-skilling as I wrote earlier. There is no escaping from “emotional intelligence” or as some like to call it - “soft skills”, an aspect of our work machines will not replicate for sometime. The value of being “emotionally intelligent”, i.e., being able to solve human problems, will only increase as the previously highly valued “technical aspects” of our jobs are better undertaken by processors with a memory chip.
Re-inventing ourselves does mean acquiring new skills. The harder part though - is acquiring the perspective required for excelling in them. Work on both, but the latter is rare and valuable no matter where you start.
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