In his breakthrough 1964 book, Notes on the Synthesis of Form, Christopher Alexander described problem-solving design as the “process of inventing things which display new physical order, organization, form, in response to function.”
Alexander was a truly brilliant and original thinker whose work impacted domains ranging from architecture and urban planning to objected-oriented software design and philosophy. Although his writings didn’t specifically tackle the Law, the allegorical clarity of his work nonetheless applies to the profession. Alexander wrote about the applicability of forms to contexts, and to him, business lawyers would be designers of a sort, creating documents and implementing processes to suit individual client matters. He would quickly note that:
1. Lawyers deliver services primarily through the medium of documents.
2. Structurally, these documents are flat, static, and opaque
3. Functionally, these documents are multi-dimensional, itinerant, and require transparency.
4. This mismatch between structural form and functional context would likely create enormous costs, delays, risks, and inefficiencies.
Structure: Flat, static, and opaque:
Your documents – paper or electronic – are structurally flat in that all the information contained within them exists at the same level. The near-useless recitals taking up space in your preamble and the crucial indemnification clause on page 12 are textually equals: the reader encounters and processes them in exactly the same way.
Your documents are structurally static in that they don’t go anywhere or do anything on their own. You have to lug and shove them, repeatedly, from person to person and milestone to milestone, from conception until expiration.
And your documents are structurally opaque because you cannot perceive their contents unless you open and read them, something that usually must be done repeatedly during their lifecycles.
Function: Multi-dimensional, itinerant, requiring transparency:
Functionally, however, your documents are far from flat, static and opaque. Every document that crosses your desk, whether drafted by you or your counterparty – inherently contains layers — dimensions of function and and movement and meaning that you consider and reconsider continually throughout that document’s lifecycle. Here’s a short list:
1. Provenance – where did this document come from?
a. Is it from a template or form? Which?
b. Who drafted it?
c. On what deals or matters was it previously used and what issues arose with it then?
2. Deal-Specific Content
a. Deal data – who, what, where, when, why (if you’re into recitals), and how much?
b. Deal-logic – If a community property state, attach spousal conset. If Series B round financing with partial pay-to-play provision, insert blank-check stock provision, etc.
c. Non-standard, deal-specific clauses
d. Content synopsis – quick executive summary of key deal provisions
e. Reporting requirements
a. History and Audit Trail
i. Where has this been?
ii. How long was it there?
iii. Who was working on it?
iv. What have they done to it?
b. Where’s it going?
ii. Approval & Signature Authority
c. What happens to it once it’s done
i. Post-execution administration
ii. Compliance & Risk Management
4. Structural Integrity
a. Internal Structure
ii. Internal clause references
b. External Structure
i. Standalone document or transaction package
ii. Exhibits, schedules, attachments
iii. Other related documents
a. Document permissions – who can access, read, edit, and forward?
b. Contractual security obligations
c. Regulatory security obligations
Intrinsically, every contract or pleading that you draft or negotiate contains most or all of these layers. You know it. Your client knows it. Your counterparty knows it.
The document, however, does not know it. Because your documents are structurally flat, static, and opaque, they cannot support any of this layered functional meaning by themselves. Instead, every time you touch your documents, you have to supply that meaning yourself, overlaying it continuously onto the flat text:
· You write summaries.
· You annotate the client’s reasons for a particular drafting change.
· You attach and email multiple iterations of the same document.
· You carry around in your head little bits of tribal knowledge like, “when I’m done drafting this, it has to go to Bob, unless the total contract value is more than $500,000, in which case it has to go to Nancy.”
· You staple a SOX compliance distribution list to the final draft and circulate it through the company.
· You re-read the same document
· You re-make the same decisions
· You painstakingly cross-check definitions and their uses, clause references, related documents
And you perform the same tasks over and over and over again for the next document…all of which consumes time and resources while spawning risk and frustration.
So, what’s the solution? Well, Christopher Alexander would doubtlessly say that if your form doesn’t fit your context, you need to adopt a form that does. The speed and complexity of modern business requires business lawyers to embrace multi-dimensional intelligent document technologies.
Hmmm. Multi-dimensional Intelligent document technologies? Sounds like someone we know.