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— Trump is the first American president to not have even bothered to read to the U.S. Constitution, right?

“I was a foot soldier in Biglaw when I thought to myself, why don’t I look more closely at how contract language works or doesn’t work, rather than just cranking out deals.” That’s how Ken Adams explains his dedicating over 20 years of his life to studying and sharing how best to draft contracts.

He says, “I found that that type of work was better suited to how my brain works. It’s a longer-term inquiry, compared with the expediency-driven task of getting the deal done. It involves relentlessly grinding away at issues related to how to say clearly and concisely whatever you want to say.” He wryly admits that there’s something a bit maniacal about it. “I suspect it’s driven by some deep-rooted need for order and a functioning civic society. And I’m the only person doing what I do. It’s been amazing having the field essentially to myself.”

I took Ken’s day-long “Drafting Clearer Contracts” seminar about 10 years ago, soon after I had switched from being a law-firm litigator to working in-house. Back then, he gave me a framework for understanding contracts and introduced me to their limited and stylized language. And in the process, he completely changed my practice. So I was eager to catch up with him again now, especially as so much activity in legal tech relates to contracts.

Taking Control of Contract Language

Ken says, “I always believed that my study of contract language wasn’t an end unto itself. It was a means to an end.” He continues, “If we’re going to create an efficient process, we’re going to need guidelines for coherent contract language.” We must know how to express a deal clearly and effectively. And then, and only then, we can automate, according to Ken. “If you automate without rigorous content, you’re doomed to garbage-in-garbage-out.”

Ken says that to produce reliable contract language, you have to realize that it’s analogous to software code — it’s limited and stylized. “It’s all well and good to say ‘be clear’ and ‘use short sentences,’ but that requires command of countless words and phrases. That’s what I’ve been working on.” That work is reflected in Ken’s 600-page book, A Manual of Style for Contract Drafting, now in its fourth edition.

The Culprits: Copy-and-Pasting and the Legalistic Mindset

Ken is still incredulous at the dysfunction of traditional contract drafting. “It’s a system that has smart people endlessly recycling profoundly defective prose. That’s the case regardless of how prestigious the law firm or how exalted the company.”

Why are things so bad? According to Ken, it’s a combination of two things. “First, contract drafting has long relied on copying, on faith, from precedent contracts of questionable quality and relevance. When you have generation after generation copy-and-pasting, the result is a disconnect between what’s in the contract and what people think is in the contract.”

Another factor is what Ken calls “the legalistic mindset.” He explains, “It’s a function of thinking that your work product should showcase legal intricacy.” According to Ken, the result is contracts clogged with terminology that gets in the way of expressing the deal. “That is why a phrase like ‘represents and warrants’ is a fixture in contracts, even though it’s absurdly pointless and confusing. In their urge to make things complicated, lawyers have managed to make contracts incomprehensible.”

Automating Contract Creation: Hard Work Worth Doing

Ken thinks that the obvious starting point for automating contracts is contract creation, but you have to understand the nature of the task. He explains, “Automating contract drafting isn’t glamorous — the technology involved is relatively basic. The work is primarily a matter of the research and editing involved in building a library of automated contracts.”

Eight years ago, he tested what could be done by creating an automated confidentiality agreement that allows you to create what Ken describes as “the confidentiality agreement of your dreams” by answering an annotated questionnaire. Ken says, “You might end up answering eighty questions before you’re done, but you get a great NDA that fits your needs and is clear and as concise as possible.”

“That’s how we should be drafting contracts, rather than randomly copy-and-pasting from who knows what and relying on conventional wisdom,” Ken asserts. It seems a straightforward enough proposition, but so far nothing on the market comes close to meeting Ken’s standards. “The challenge isn’t the technology or creating the content, it’s finding a constituency willing to dedicate to the task the resources required.” That’s something Ken’s still working on.

AI Must be Powered by Expert Humans

Ken is also involved in tackling the process of contract review. Ken says, “Reviewing contracts is likely more of a burden than drafting. If you draft the contracts for, say, 10 different deals of a certain kind, each time it’s just a matter of your making suitable adjustments to your template. But if the counterparties are responsible for preparing the documents, you would be faced with reviewing 10 different and unfamiliar drafts.”

Ken is an advisor to LegalSifter, an artificial-intelligence company that helps you review draft contracts. It flags whether a set of deal points are present or absent, and for each deal point it offers help text prepared by LegalSifter’s experts, your law firm, or your in-house counsel, whichever option best suits your needs. But Ken is eager to point out that despite the buzz surrounding artificial intelligence, at the core of LegalSifter is old-fashioned expertise, with the technology serving to make that expertise more accessible.

Ken described to me how LegalSifter’s process works. “For example, recently I worked on contracts used to book a meeting at a hotel. By looking at countless hotel agreements and reading relevant commentary, I identified those deal points worth looking for. For each of those deal points, I created a set of specifications showing how that issue might be expressed in a contract. Those specifications were handed off to the data scientists and natural-language-processing people, who test our specs and train each piece of software, or ‘sifter.’ So the product combines expertise and technology. It’s not some king of tech sleight-of-hand.”

Ken is wary of legal-tech companies that treat legal expertise as if it were a commodity, to be cranked out behind the scenes by a fungible and anonymous squad of lawyers. He says, “Relying on the expertise of others involves a leap of faith. If you don’t know where the expertise in artificial intelligence is coming from, then you can’t trust it. LegalSifter has made a point of telling the world that I’m helping them and what my role is. I hope that make it easier for people to rely on LegalSifter.”

Focusing on the Bigger Task

Ken has no illusions that replacing the current dysfunction will be easy, or that success is guaranteed. “But it depends on what you consider success. Regarding my guidelines on contract language, I’ve not been frustrated by the slow pace of progress. I’m happy knowing that many people around the world find my work useful. And regarding efforts to make the contracts process more effective, it’s a massive market, so you can be viable even if you start small.

More generally, Ken is gratified to be applying himself to a task he first conceived of long ago. “My aim has always been to help overhaul the contracts process, but first I had to take a 20-year break to make sense out of contract language. That work is now largely done, and I’m delighted that I’m now able to build on that foundation by helping to develop products that will make a real difference in how a vital business function operates.”

Stay tuned; Ken would like to think he’s just getting started.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

If you are a reader of this website, you’ve most likely noticed a typo. Since you are likely a lawyer, you’ve probably seen the typo and either felt superior about yourself, or it has nagged at you like a splinter in your mind.

Well, maybe you or somebody you know can help us out? We need a person to copy edit in the mornings, from 9:00 a.m. to Noon (Eastern). It should be fun, if you like pointing out when people make errors. It’s also one of the few jobs we have where a law degree is not required — though if you have spent three years and six figures getting that credential, we’ll certainly consider it.

Here are some details.

Responsibilities:

• Copy edit all of our columnists.
• Write stories in connection with our Research Division.

Requirements:

• Must be attentive to detail and be able to spot errors quickly.
• Some understanding of the law is preferred, but not required.

Rates:

• $20 per hour
• $40-$100 per article

Location: Remote or New York City (NoHo)

Please send your résumé and an example of your work to tips@abovethelaw.com.

Above the Law is the biggest site for original legal news, counting among its readers everyone from general counsels and senior partners at the nation’s biggest firms to the ranks of 1Ls. Written by lawyers for lawyers, Above the Law’s staff blankets institutions like the Supreme Court, law school, and life at big firms. It’s the first with salary and bonus information and is a hub of professional advice for legal professionals at all career stages.

Breaking Media owns and operates a network of next-generation business-to-business media brands targeting influential professionals: Above the Law, Dealbreaker, Fashionista, MedCity News, Breaking Defense, Breaking Energy, and Breaking Gov. Because of its authentic, inside-the-industry content, Breaking Media reaches over 5 million affluent, decision-making professionals per month and connects brands with this deeply targeted, engaged, and influential audience through innovative content integration, custom research products, event marketing, and more.  Headquartered in Manhattan, the company was founded in 2006.

Earthjustice is the nation’s premier nonprofit environmental law organization. We take on the biggest, most precedent-setting cases across the country. We wield the power of law and the strength of partnership to protect people’s health; to preserve magnificent places and wildlife; to advance clean energy; and to combat climate change. We partner with thousands of groups, supporters, individuals and communities to engage the critical environmental issues of our time, and bring about positive change. We are here because the earth needs a good lawyer.

Founded in 1971, Earthjustice has a distinguished track record of achieving significant, lasting environmental protections. We achieve this by hiring talented and dedicated staff who share a passion for justice and a healthy environment. Our headquarters are in San Francisco with fifteen offices across the U.S.

The Research and Policy Analyst supports the CA Regional Office’s programmatic focus on air pollution and clean energy issues in California by: developing the factual basis for lawsuits, writing and editing comment letters and other advocacy documents, representing Earthjustice in advocacy work with government decision makers, and developing and maintaining relationships with clients and other partners.

The individual will report to Adrian Martinez and will work in close coordination with the  team in California working on clean air and clean energy issues. This position is located in Los Angeles, CA.

RESPONSIBILITIES:

Advocacy (60 percent)  

• Draft comment letters and present public comments and testimony at agency hearings.
• Develop relationships with regional, state, and federal agencies and engage in advocacy to promote priorities of clean air and zero-emissions.
• Prepare advocacy materials such as fact sheets, letters, action alerts, blogs, and other educational materials.
• Work with our communications team on media outreach efforts.
• Provide support for client coalitions by participating in committee groups, attending conferences, and tracking political and regulatory developments.
• Track environmental news throughout the region and identify issues in which Earthjustice should engage.
• Work with existing partners and clients, and cultivate new allies, partnerships, and coalitions, focusing on groups from diverse and/or underserved communities.
• In coordination with the California Policy Advocate, develop and implement legislative and administrative advocacy strategies to advance our positions on environmental issues.
• Monitor developments in programmatic priorities by tracking and analyzing legislation and policy initiatives relating to assigned issues.
• Serve as spokesperson for Earthjustice on assigned issues.

Litigation Support (40 percent)  

• Conduct preliminary case inquiries and investigate potential new cases, including preparing factual research, analysis and organization of relevant information, and a written report.
• Conduct factual research to support all stages of litigation.
• Draft case-related documents, including factual portions of pleadings, client and expert declarations, and formal requests to agencies for public records.
• Review and interpret regulations, environmental planning documents, technical support documents and other factual and technical information to support legal strategies.
• Produce multi-media materials (including GIS mapping) for case development and litigation.
• Proofread pleadings.
• Supervise projects and other efforts performed on assigned issues by litigation assistants, contractors or others.

QUALIFICATIONS:

• At least two years of professional experience.
• Bachelor’s degree in Applied Sciences, Public Health, Urban Planning, Environmental Sciences, or Engineering, with Master’s preferred.
• Excellent research, writing, analytical and communication skills, including the ability to quickly understand complex scientific issues and communicate this knowledge to attorneys, staff and media.
• Experience with scientific or technical issues related to land use, the electric sector, climate, energy, clean air policy and/or environmental justice issues preferred, but not required.
• Experience working with communities, and proven ability to work in coalitions and with allies.
• Detail oriented, with good organizational skills.
• Excellent computer skills, including Microsoft Excel, Word, Access, and ARC GIS.
• Demonstrated awareness and sensitivity to the needs and concerns of individuals from diverse cultures, backgrounds and orientations.
• Demonstrated commitment to the creation of a diverse, equitable and inclusive work culture that encourages and celebrates differences.

We offer a mission- and employee-focused work environment and a competitive compensation package, including excellent benefits. Earthjustice is an equal opportunity employer and highly values diversity. Women and people of color are strongly encouraged to apply.

Salary is based on experience and location.
Salary range in Los Angeles, CA: $64,300 – $71,400

To Apply:  

Using the Jobvite application tool, please submit:

• Resume
• One- or two-page cover letter that addresses: (1) why you are drawn to Earthjustice’s mission and whether there are particular legal, environmental, or justice issues that inspire you; (2) what your experience and skills you would bring to this position; and (3) aspects of your background that demonstrate competence to work with diverse clients and colleagues.
• Writing sample, preferable 4-5 pages that reflects your work.
• List of three references.

Applications will be reviewed on a rolling basis until the position is filled.

Please, no phone calls, hard copies, or drop-ins. If you’re having technical difficulties submitting your application, reach out to jobs@earthjustice.org

Earthjustice is driven by a passion for justice, partnership, and excellence. Our core values lead us to seek a broad range of perspectives and backgrounds to achieve our mission and to maintain an inclusive environment where all staff are valued and respected. As an equal opportunity employer, we are committed to employment practices that ensure that employees and applicants for employment are provided with equal opportunities without regard to race, color, national origin, ancestry, sex, age, religion, physical or mental disability, medical condition, veteran status, marital status, pregnancy, sexual orientation, gender identity, gender expression, genetic information, or any other factor that is not related to the position.

For positions located within the City and County of San Francisco:  Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment-qualified applicants with arrest and conviction records.

For positions located within the City of Los Angeles:  We will consider qualified applicants with criminal histories in a manner consistent with the Los Angeles Fair Chance Initiative for Hiring.

An 11th-hour settlement between two counties in Ohio and four companies will allow the latter to avoid a trial over the opioid crisis, according to a news report.

Citing attorneys, The Wall Street Journal reported Monday that Israeli drugmaker Teva Pharmaceutical Industries and the three largest drug distributors in the country – McKesson, Cardinal Health and AmerisourceBergen – had reached the $260 million settlement with Ohio’s Cuyahoga and Summit counties, respectfully home to the cities of Cleveland and Akron. The judge reportedly said the trial against a fifth defendant, Walgreens Boots Alliance, would be postponed after that company failed to reach a deal.

It was reported last week that the three distributors were in talks to settle the litigation for $18 billion.

The two counties’ cases were to be the first to go to trial among suits filed by more than 2,300 municipal, county and tribal governments from around the country that are part of the multi-district litigation. The case, known as MDL 2804, had been scheduled to start on Monday in the U.S. District Court for the Northern District of Ohio, with U.S. District Judge Dan Polster presiding.

Other companies involved in the MDL have also been seeking settlements. Last month, it was reported that Purdue Pharma, the maker of OxyContin (oxycodone), had reached a partial settlement that would involve resolving the litigation by filing for Chapter 11 bankruptcy and paying billions of dollars over the course of several years. However, some attorneys general balked at the idea.

Another company involved in the case, Mallinckrodt, saw its shares fall by about 40 percent amid reports last month that it had hired restructuring advisers and was exploring options that could involve a bankruptcy filing.

And last week, it was reported that a judge in Oklahoma had miscalculated a large chunk of the charges he imposed on Johnson & Johnson. The judge, Thad Balkman, had ordered J&J to pay $572 million in August after finding that the company had created a “public nuisance” in Oklahoma by helping to fuel the opioid crisis. J&J subsequently appealed the ruling, stating that Balkman had made a computational error with respect to a charge of $107 million that was part of the amount. The judge acknowledged last week that the charge should have been $107,000, which would pay for developing a program for treating babies born with opioid addiction.

Photo: Stuart Ritchie, Getty Images

The legal profession is increasingly diverse, but it still has quite a way to go before the numbers truly reflect the nation at large. For example, only five percent of lawyers nationwide are Latino, despite Latinos comprising 18% of the general U.S. population. As Hispanic Heritage Month comes to a close, we honor five trailblazing Latino lawyers who forever changed the legal profession and the lives of future generations. Their perseverance paved the way for attorneys entering the field today.

“We are passionate about the intersection of technology, law, and volunteerism.”

Those are the words of Sarah Baker, president and executive director of We The Action, a free digital platform that connects lawyers with leading nonprofit organizations across the nation in need of pro bono legal support.

As Pro Bono Week kicks off in the United States, We The Action offers an example of how technology can be used to encourage pro bono work by lawyers, by connecting the lawyers who want to volunteer their time with the organizations that need them — at no cost to either the lawyers or the nonprofits.

Since its launch in July 2017, We The Action has grown to more than 8,000 lawyers nationwide and more than 200 nonprofits, including Rock the Vote, Lawyers’ Committee for Civil Rights, Transgender Law Center, Justice for Military Families, and the American Immigration Lawyers Association.

Together, these lawyers and nonprofit partners have completed more than 3,000 pro bono projects valued at over $6.6 million in free legal services.

The organization launched at what Baker describes as a challenging time in our nation’s history, when a lot of people, including lawyers, where saying, “What can I do? How can I help?”

She was one of those. A lawyer whose past jobs include working in President Obama’s Office of White House Counsel, as senior policy director to Dr. Jill Biden, and as the senior pro bono associate at Hogan Lovells, she was one of the many lawyers who went to an airport to help after President Trump imposed his travel ban.

“It was an inspiring response, but also frustrating, because it was difficult to connect all those lawyers with actual client demand,” she recalled.

But her experience then and as pro bono coordinator at Hogan Lovells underscored for her the need for a better method to connect pro bono lawyers with clients who need them. When the board of directors of We the Action reached out to her, she jumped at the opportunity.

Initially, Baker focused on assembling a team and then building and testing the platform. Now, the organization is entering a new phase, in which it wants to expand awareness of its work and further grow its network of attorneys and nonprofits.

We the Action now has lawyers in every U.S. state. Of the 8,000 lawyers who have signed up to take cases, at least half have handled at least one project.

“It’s an active and engaged community,” Baker said. “The people who come have come for a reason. Our volunteer rate is higher than you might see elsewhere.”

For the nonprofits, the platform is appealing because it gives them access to lawyers and helps them ease off the administrative burden of managing their cases.

While We the Action has a broad progressive mission of defending the nation’s values and protecting its democracy, Baker says it is not a political organization and has no litmus test for the nonprofits it will help. Her organization does vet nonprofits before allowing them to join, and will not accept any that do not align with its core values.

Funding to incubate We the Action was provided by the Emerson Collective, the social-impact philanthropic organization founded by Laurene Powell Jobs, the widow of Apple cofounder and former CEO Steve Jobs.

Besides the We the Action site, the organization is involved in other projects at the intersection of law and technology. For example, to help the Lawyers’ Committee for Civil Rights Under Law manage its election-protection work, it built the site 866ourvote.org, which helps recruit and train lawyers to volunteer at polls on election days.

Going forward, Baker’s goal is to build We the Action from the marketplace it is now into more of a community.

“At base, we are a two-sided marketplace, but we would also like to be more of a community that helps connect lawyers to other lawyers as well as to nonprofits,” she said.

One sign that is already happening is We the Action’s Facebook page, which has nearly 12,000 members.

Baker says the organization encourages lawyers and nonprofits to share stories of successful projects accomplished through the site. I asked her if she has any favorites.

“Some of my favorite stories,” she answered, “are the small nonprofits that say, “But for you guys, we wouldn’t exist.’”

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

The allegations against DLA Piper partner Louis Lehot have reverberated through Biglaw. Now Lehot has released a statement and over 40 pages of correspondence with his accuser, Vanina Guerrero.

Earlier this month, DLA Piper partner Vanina Guerrero released an open letter to the firm, and filed a complaint with the Equal Employment Opportunity Commission, alleging that the co-managing partner of the Silicon Valley office, Louis Lehot, repeatedly sexually assaulted her after she’d been recruited to the firm in 2018. She additionally asked the firm to release her from their mandatory arbitration agreement so she’d be able to pursue her claims in open court. The firm has been conspicuously silent on the forced arbitration agreement — despite the attention their arbitration stance in this case has garnered, but, they did announce that Lehot had been let go from the firm. Then the firm put Guerrero on leave, saying they’d uncovered allegations unrelated to Lehot during their investigation of her claims.

As reported by Law.com, today Lehot admitted to having an “emotional relationship” with Guerrero and he said that was the reason he agreed to leave the firm.  His statement also said in no uncertain terms that he does not believe Guerrero is a victim:

“I acknowledge poor judgment in developing an emotional relationship with Vanina Guerrero. I deeply regret the pain this has caused my family, colleagues, clients and friends,” Lehot continued. “This isn’t victim-blaming or victim-shaming. She’s not a victim here.”

Lehot also released emails that are purportedly between himself and Guerrero that he says show a friendly rapport between the two during the time of the alleged assault. Of course, it frequently takes time for victims of assault to process and name their experiences, particularly when they’ve been victimized by an acquaintance.

Guerrero’s attorney took this latest development as an opportunity to further push to be let out of her mandatory arbitration agreement:

Reached for comment Monday, Wigdor LLP partner Jeanne Christensen, who represents Guerrero, said, “By this, Louis Lehot is saying he’s OK with litigating in open court and no secret arbitration.”

DLA Piper has no new comment about this latest development.