Smart Contracts and the Role of Lawyers (Part 3) – About Lawyering Transactions on Blockchains

In Part 1 I attempted to unpack some of the  semantic baggage related to the term, “smart contract,” and in Part 2 I attempted to unpack some of the semantic baggage related to the term, “code is law.” With a more nuanced understanding of these legal-sounding terms, now we can better consider the possible role of lawyering in the emerging blockchain era, hopefully with neither too much fantasizing and hype nor too much hostility and dismissiveness. In this post I review how seven transaction-related lawyering activities either become irrelevant, increase in importance or remain unchanged when applied to blockchain-based transactions. Note that the categories I’ve focused on below are not inclusive of all lawyering activities for all kinds of contracts, and their relevance varies by transaction type and size, jurisdiction, etc., but collectively they give a pretty good overview of contract-centered lawyering. Continue reading “Smart Contracts and the Role of Lawyers (Part 3) – About Lawyering Transactions on Blockchains”

Smart Contracts and the Role of Lawyers (Part 2) – About “Code is Law”

In my previous post I described how “smart contracts” are not really contracts in the comprehensive or strict sense of the term as understood and used by lawyers. Smart contracts only explicitly model the performance aspect of a real world contract and implicitly assume the form and formation aspects of a contract. If we simply admitted the term, “smart contract” is an unfortunate historical accident and relabeled it to something like “chaincode” or just “script” as some platforms refer to it, then a lot of the conceptual baggage and terminological confusion would probably disappear. Of course, a lot of the sexiness of the term and apparent relevance to lawyers might disappear as well. Nevertheless, the expanding interest in blockchain-based transactions by financial institutions, exchanges, other businesses and governmental agencies seems like fertile ground for lawyers to plow, regardless of how the particulars are labeled. Or is it a quagmire instead? The answer is not a simple one to give as is well illustrated by the recent failure of what is probably the single largest blockchain-based smart contract ever created. Continue reading “Smart Contracts and the Role of Lawyers (Part 2) – About “Code is Law””

Smart Contracts and the Role of Lawyers (Part 1) – About Smart Contracts

Legaltech is awash in buzz terms these days, and “smart contract” appears very near the crest of the legaltech hype wave. The reason is obvious enough: everyone knows that lawyers are the ones who draft contracts, so surely the law biz needs to pay attention when contracts get “smart.” Plus, smart contracts live on blockchains, don’t they? Hasn’t the recent fintech interest in blockchains chummed the waters for all sorts of activities by big banks, big tech companies, government agencies, consulting firms and other well-heeled and high-paying clients of biglaw? You bet it has, and you can safely bet that lawyers are taking note! So let’s check out this very fascinating but complex topic in greater depth.  I’ve broken up my thoughts into three separate posts – this first part provides critical historical background and context for understanding what smart contracts are; the second part uses a recent notorious blockchain incident to delve into some of the interesting legal theory implications of smart contracts; and with the groundwork laid in the first two parts, the third part deconstructs the likely (and not so likely) impacts of smart contracts on transactional lawyering. These posts are lengthy and dense, but if you stick with it, I believe you will emerge with a fuller and more nuanced understanding of the hype and substance of smart contracts. Continue reading “Smart Contracts and the Role of Lawyers (Part 1) – About Smart Contracts”

The Kodak Moment…Wait Just a Moment

I’ve always been skeptical when I see the “Kodak moment” metaphor being used as some kind of oracular call for institutional change: “Adapt or go the way of the dinosaurs…and Kodak!” The ominous admonition works so well precisely because it is a dramatic illustration of how historically dominating institutions can fail spectacularly when they opt for status quo success instead of embracing already visible changes. All you need is a dominant institution (like private law firms generally and BigLaw specifically) and some obvious technological or market changes (like AI and legal process outsourcing) and…voila!…you’ve got yourself a Kodak moment.  Continue reading “The Kodak Moment…Wait Just a Moment”

The Atomic Unit of BigLaw


Clash of Cultures - © 2016 Brenton B. Miller
Clash of Cultures

In my post about about analytics here, I noted that the challenge of performing certain analytics tasks in the legal domain is simplified by the well-defined and publicly accessible caselaw source data used in the analysis:

The cases themselves are uniquely named and codified, as are the jurisdictions, courts and judges. Parties/roles and names of counsel, litigants and other participants have been vetted. Even softer metadata like issues, actions, and outcomes have been successfully extracted and disambiguated. Of course, all of this high quality data is continuously supported by a stable court system and a large private publishing infrastructure. The result is a target-rich content environment for analytics and one that accommodates relatively simple user interfaces. Unfortunately, the same does not hold true for legal work not directly or completely circumscribed by court filings (and to a lesser extent, certain regulatory proceedings). Factor in all of the ancillary activity inside of the law firms related to this sometimes rich but more often impoverished external data, and you have the kind of complexity that can’t be untangled by analytics alone. 

Let’s explore this observation a bit further in the context of how law firms manage matters by starting with a rather philosophical question: What is a matter? The answer depends on which part of the elephant you’re blindly feeling, but generally speaking there are two ways to answer the question: Continue reading “The Atomic Unit of BigLaw”


In my last post, The Headlong Rush Into Analytics, I dabbled with several analytics tools to graph the undergraduate majors of law school attendees over a recent 14-year period. Ask a real data scientist if “dabbling” is the right word for describing my little experiment and the response will probably be some combination of rolled eyes, grumbling and sighs. That’s what experts in any field of endeavor tend to do when they come across a layperson dabbling in their specialty. Each and everyone of us has done our share of dabbling, and we’ve all probably reacted with disdain when viewing the dabbling of others in our own areas of expertise. I know for certain that I’ve often enough snorted at the amateurish efforts of others who ignorantly comment on KM or, worse yet, roll out some application and call it a knowledge management initiative.

What is it about dabbling that makes it so irritating and yet so strangely irresistible to those of us involved in knowledge management? Think about it. Dabbling is in some respects a precursor or catalyst for KM. You might even say that the purpose of KM is to harness the curiosity and confidence that compels one to dabble and to guide it in a structured way toward just-in-time understanding. In short, knowledge management is supervised dabbling! Continue reading “Dabbling”

The Headlong Rush Into Analytics

Rushing Down (at the Tate Modern) - © 2016 Brenton B. Miller
Rushing Down (at the Tate Modern)

In a recent Forbes Tech article, How Big Data is Disrupting Law Firms and the Legal Profession, Nik Reed (co-founder of Ravel Law) is quoted as saying:

[T]he days when lawyers were all English Literature or philosophy majors are behind us now, my classmates included a lot of people from finance and one who had a PhD in biochemistry from MIT. These are people who are familiar with quantitative analysis and datasets, and they are yearning for richer information sources and better analytics technologies. It probably wouldn’t have gone down very well 30 years ago with the kind of people who were lawyers back then.

Because it’s been about 30 years since I last did legal research as an associate, I think I’m pretty qualified to reply that if cool and effective research aids like Ravel were available and affordable 30 years ago, we would have happily abandoned all of that manual treatise and digest reviewing, the pulling of countless court reporters and advance sheets and the oh-so-tedious manual Shepardizing! The visual strengths of the analytics tools now coming online would have been just as obvious to us back then as they are today.  Continue reading “The Headlong Rush Into Analytics”

Welcome to BigLaw KM

I’ve been doing some soul searching about launching a blog on knowledge management in large law firms (“BigLaw”). Is there anything left to discuss?  After all, there are already several popular blogs that touch on BigLaw KM with some frequency like Ron Friedmann’s Strategic Legal Technology and Mary Abraham’s Above and Beyond KM.  A couple of other excellent blogs that also target legal KM and related topics are 3 Geeks and a Law Blog and Dewey B Strategic, and then there are the business-of-law blogs, the legal tech blogs and the general law practice blogs that others have tracked. Blog coverage that touches our little corner of the world isn’t lacking, but perhaps there is still room for a blog that really maintains the perspective of BigLaw KM insiders and concentrates on the issues that touch them, especially if it becomes something of a hangout for this specialized community during those lengthy gaps between the ARK, ILTA, LegalTech conferences and the other relatively few opportunities we have to see each other in person. Maybe if I provide a little provocation, others will read and respond? Wouldn’t that be nice?

Continue reading “Welcome to BigLaw KM”