Time wasted reviewing pointless variations on the same old mutual NDA is a scourge. It's hard to take the profession's performative technophilia seriously while the most obvious, widespread inefficiency continues every day.
On the other hand, teaching computers to parse pointless variations of the same substantive terms in legalese accommodates bad practice, instead of correcting it. It's symptomatic treatment at best, enablement at worst.
Lawyers shouldn't be sending and receiving a thousand different NDAs for the same fundamental deal. They should be defining and evolving a shared vocabulary of common forms, and invoking them whenever cost-benefit favors a standard.
That's the idea behind a very recent project of mine, The Canting Tribe NDA:
It's a "viral" NDA. The website publishes a versioned form. The form includes a signed certificate guaranteeing that the proposal is identical to the version published on the site. On the site, newcomers see a list of firms using and accepting the form. The experience shows, rather than tells, how standardization can work.
I soft launched the project just a couple weeks ago. A couple firms signed on almost immediately. Several more are reviewing. My top priority is more firms on the website. Once the site provides enough baseline social proof, the form can spread word and create new users on its own.
For transactional clients with more than a few hours' needs every month, I cannot recommend flat-fee billing strongly enough, especially for clients with whom you've an established relationship.
The main benefit of this approach in my practice has been enabling me to do work that benefits multiple clients, and even current and potential future clients, without hesitation or administrative cost. There's no need to decide that one of five hours on a form goes to this client, two of five to that one, and one gets written off, as representing future clients who will need the same form, and so on.
Not tracking time has also been a net savings, though I recommend continuing to track tasks performed, journal-style. A journal helps me personally, makes it very easy to prepare good looking bills, and helps greatly in discussions about rate, which my engagement letter allows us to change, for future months, at any time. If I underestimate on rate, I can point to a long list of things accomplished. Often, the decision maker at the client simply didn't know that I was serving other groups at the company, or taking on other responsibilities, outside their field of view.
The main concern from other counsel has been that clients will gorge at the new "all you can eat lawyer buffet". If a client makes use of your time in a very piece-part, transactional fashion, that may indeed be a problem. But that has not been my experience. Clients have processes and habits in place for my work and seeking my advice. They're very hard to break, for better and worse. I do get far more communication from client personnel, but that has enabled me to be more proactive about systematizing and standardizing recurring needs, which in turn keeps me focused on the interesting, meaningful work.
That being said, I remain deeply cynical about whiz-bang technology in legal practice, especially when it's visible to the client, especially when it takes center stage. The less my clients know or care about the tools I'm using, the better I'm able to shield them from those details, the better the sign that I'm doing high-value work.
I, for one, really hate interrupting my workflow to read yet another MNDA form on short notice, only to find nothing warranting comment. Meanwhile, my client's deal is held up, waiting on me, which makes me seem a drag on Getting Business Done.
Businesspeople have to wait for review, but lawyers have to do the review. Both come away knowing that they've wasted precious time.
Thank you! My number one priority right now is getting more companies to sign up as users on the website. Even small, unheard of companies can make a huge difference at this stage!
I'm not sure quite what you mean by "design patterns". The NDA form itself is very orthodox in its language. I wrote it, intentionally, to be as little-surprising and easy to review, knee-jerk, as possible.
In other work, I'm fanatical about plain language, clean structure, and the reuse of components of language. The latter comes through in my open source project, Common Form, which essentially ports various software development tools---editor, linter, compiler, package manager---to contract drafting:
Or perhaps you mean "design patterns" more to do with the "viral" nature of the Canting Tribe NDA, a kind of voluntary, Internet-enabled standardization. I do have high hopes for that model. I'd love to see it work for NDAs, and reuse it for other kinds of transactions, including some with more inevitable terms variability. SaaS agreements, for example.
It's a software engineering technique to abstract and reuse software components, inspired by a similar concept in (physical) architecture. I was wondering if you wanted to do something similar, but of course with legal ah, entities (? What are contracts?) rather than software.
The wikipedia article I link to is not very good but the book is a staple in software engineering classes.
Alas, it's not entirely clear how to translate the idea into the contract context. There are many repeating patterns and structures in complex contracts, but they don't serve the same roles as patterns in software.
Funny you should mention! This is my third attempt at "The NDA Problem".
Attempt 1: Very modern, plain-language NDA. Much easier to read and follow. Substantively better. No uptake.
Attempt 2: Suite of NDAs for various use cases, integrated with e-signature, filing, attorney approval, the works. That was rxnda.com. Lots of positive feedback. Not much actual use.
Attempt 3: Canting Tribe. Zero code. All about the network effects. Much, much simpler.
I've tried to make the PDF copy of the form as easy to set up in place-the-blanks e-sig services as possible, with [bracketed instructions] to make clear what goes where. I would be very interested in an e-sig service that allowed me to preconfigure a template with the latest terms, for other people to use. I'd be very interested in ways to put metadata or other hints for setting up e-sig into any of the various formats the site publishes.
I used to have a list of companies offering something close to rxnda.com: NDA plus e-sig. I don't have it with me now. But I'm not aware of any other attempt at voluntary standardization of a general-purpose NDA. Several large companies with leverage have published their standard NDAs, or even set up e-sig portals, as Google has. But I'm not aware of any such forms offered for general use, between other companies.
I would not be surprised to learn of prior attempts, or approaches vaguely close to mine. Frankly, I don't care who solves this problem, or how, as long as it's solved. Canting Tribe is the best I have. I believe it can work, but I can't make it work alone.
On the other hand, teaching computers to parse pointless variations of the same substantive terms in legalese accommodates bad practice, instead of correcting it. It's symptomatic treatment at best, enablement at worst.
Lawyers shouldn't be sending and receiving a thousand different NDAs for the same fundamental deal. They should be defining and evolving a shared vocabulary of common forms, and invoking them whenever cost-benefit favors a standard.
That's the idea behind a very recent project of mine, The Canting Tribe NDA:
https://nda.cantingtribe.com/
It's a "viral" NDA. The website publishes a versioned form. The form includes a signed certificate guaranteeing that the proposal is identical to the version published on the site. On the site, newcomers see a list of firms using and accepting the form. The experience shows, rather than tells, how standardization can work.
I soft launched the project just a couple weeks ago. A couple firms signed on almost immediately. Several more are reviewing. My top priority is more firms on the website. Once the site provides enough baseline social proof, the form can spread word and create new users on its own.