Lawyers: Start Thinking Like Developers
Technology is transforming your clients' business, and you cannot ignore it. Your clients may not be in the technology business, but they have recognized the need for tech to keep them competitive. As a trusted adviser, you will need to recognize how technology is influencing the relationships inside the client's company, and the resulting effect on your ability to continue adding value.
The best example is the resurgence of the smart contract.
A “smart contract” is a computerized transaction protocol that executes the terms of a contract. Although the concept has been making the rounds for 20+ years, it has recently become a dominant buzzword. That’s mostly because the immense hype around blockchain (distributed ledger) technology has rekindled the outlook for autonomous execution and enforcement of agreements. Because the blockchain algorithm provides an unalterable and robust list of rightful ownership and conditions of transfer, transactions can be recorded without a middleman.
As smart contract developers work to find a sweet coding solution to a legal issue, someone will need to anticipate the potential actions or responses that could have unintended consequences or even undermine the entire agreement.
Who is that someone? Right now it’s nobody.
The developers have not been trained to assess and mitigate contract risks; the lawyers do not have enough understanding of the technical overlay to fully appreciate what those risks may be. This vital function sits unmanned, a desolate island shrouded in fog and cut off from all lines of company oversight.
UPDATE 3/21/2017: A recent report in MIT Sloan Management Review recognized the need for "data translators" due to the communication gap between executives and big-data analysts.
Simply creating a blockchain and a smart contract does not guarantee it cannot be intentionally or unintentionally be misused. It is up to us as technologists, to ‘think like a lawyer.’
- Ed Featherston, Should developers start thinking like lawyers?, Security Zone (Dec. 14, 2016)
But here’s the good news. Our clients need us more than ever.
Not only will they need to understand their clients’ business; they will also need to comprehend the technical concepts underlying the contractual relationships their clients enter into. Their client-side conversations will necessarily spill over to the technical side of the house, requiring lawyers to listen, learn and develop reasonable technical acumen.
Ken Moyle is President of K6 Partners LLC.