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Rethinking contracting with Michael Green

 In this episode by The Optimised Lawyer, Michael Green (from Xero) discusses how the role of business-oriented in-house counsel should be changing to streamline contracting activities.

On the podcast, Green argues that in-house counsel can best add strategic value to the business when contracting by engaging proactively with leadership throughout the business cycle (rather than reactively). In this way, lawyers can mitigate legal risk and advance commercial outcomes in parallel.

Host, Electra Japonas, makes a very interesting point about the role of legal tech and contracts at 33:17, saying that while a lot of legal tech firms are proposing solutions that review contracts with the use of machine learning and artificial intelligence, they “ignore the fundamental problem, which is that the contract is so complicated and long that you’ve got to invent technology using really sophisticated tech to do a job that should be done by a human to assess… and use their critical analysis skills to look at a contract and ask how does this apply to a situation.” She continues to say 

“AI tech, for the review of contracts, is actually perpetuating a really broken process which is the contract itself.”  

Japonas’ point is that new legal tech, which is often exciting, cool, and new, can sometimes be misguided. Instead of developing complicated technologies to review complicated contracts, a better solution would be to design better contracts.

How? Engaging lawyers as early as possible in the business cycle facilitates better understanding about what the business is trying to do, and in what direction the business is intending to go. It would allow lawyers to identify the key (often limited) legal risks early, and have them work cooperatively to focus on resolving issues (not positions; see Fisher and Ury) non-combatively, thereby avoiding a battle of the forms.

To hear more, check out The Optimised Lawyer podcast, here.


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