October 25th, 2011 • Posted by George May • Permalink
In a number of current popular books,
as well as in the commentary of some leading columnists such as David
Brooks of the New York Times, we recently have seen an
interesting question posed: Why do some aspects of life and certain
industries seem to be evolving at such a rapid rate, while others
seem not to have changed for decades?
The recent passing of Steve
Jobs, founder and CEO of Apple Computer, has led to further
consideration of his remarkable career. Beyond the innovations Jobs
led with personal computers going back a generation, it has been even
more impressive to consider the incredible technological advancements
he helped to provide in just the last ten years in industries such as
digital music and video, cellular telephones and tablet computers.
When one considers that the iPod debuted in 2001, the iPhone in 2007,
and the iPad as recently as 2010, you can’t help but marvel how
many of these leaps forward have come so recently.
Yet, in other fields of human endeavor,
progress seems to have slowed or stopped altogether. Take a look
around your kitchen. The basic technologies you see – oven,
refrigerator, dishwasher – are much the same as they were 50 or
more years ago. The most recent major addition to the kitchen
landscape – the microwave oven – dates back to the 1970s for its
first wide appearance.
In medical science, we see innovation
accelerating in some respects and slowing in others. Many surgical
procedures are much less invasive and produce higher quality results
more consistently than they did just 20 years ago. But the pace of
innovation around new medicines seems to have slowed to a crawl in
the last 20 years. During the early and mid-20th century,
diseases that were the scourges of the planet were eradicated (at
least in most places) by new vaccines and medicines. And what about
more recently? Arguably, the most important medicine invented in
roughly the last 25 years has been the cholesterol-reducing medicine
Lipitor and others
in the atorvastatin family. This drug was first synthesized in a
laboratory in 1985. Lipitor has been around so long that its
inventors will lose the mandated 17-year patent protection (with the drug becoming available as a generic) later this year. Meanwhile, most of
the diseases and ailments that cause most human deaths and suffering
– cancer, Alzheimer’s, and many others – have not been the
target of major medical advances.
In the legal industry – where I’ve
spent over 25 years creating products and leading businesses – the
story is much the same. On the one hand, we’ve seen a great deal
of technology come into the practice of law. The electronic
discovery industry, all but unknown just over a decade ago, is now a
multi-billion dollar market with scores of technology companies vying
to create new business opportunities. As a result, law firms have
had to become much more technologically savvy to deal with
advancements in electronically stored information. Even today, the
pace of change in the e-discovery industry still seems to be
accelerating, along with all the attendant consolidation and
innovation one expects in a growth industry.
But just as in the other examples I’ve
shared, we see other corners of the legal industry little touched by
advancements in technology and methods. The advances in legal
technology that have revolutionized litigation practices have had
little impact on transactional legal practice, which is still carried
out almost exactly as it was a decade ago.
Every bit as much as on the litigation
side, transactional lawyers also have massive storehouses of
electronically stored information to consider, both in firms’
internal databases of work product (accessed through various
knowledge management products and approaches) and on the EDGAR
database of the Securities and Exchange Commission (and its
commercial counterparts). The KM methods are quite often the source
of a reasonable precedent as a place to start. But, inevitably, some
attempt must be made to validate the proposed language and terms with
the broader marketplace, usually by accessing one of the EDGAR search
services.
The limitations of this approach are
fairly obvious. All of the EDGAR search services, whether commercial
services or in the public domain, contain millions of documents.
Though they are offered with search technology and are (in some
places) lightly categorized, there is simply no way to find the
common, authoritative language and set of terms that fit the
situation you might be in. In the end, looking at a few examples and
attempting to analyze them with a redline comparison simply doesn’t
do justice to the problem. It’s even worse than looking for a
needle in the proverbial haystack. When looking for reasonable
precedents, a transactional attorney might feel that his or her
assignment is very much like the one drawn by the protagonists in the
movie Saving
Private Ryan. When the character Captain John Miller
(played so memorably by Tom Hanks) receives the order to find Private
Ryan amidst the thousands of Allied and enemy soldiers advancing
through occupied France, he compares it to “looking for a needle in
a stack of needles.”
The methods in use today for crafting
the best deal documents haven’t been significantly altered or
improved since I started in the industry, which is longer ago than
I’d like to admit. How is it possible – given the advances in
search technology and computational linguistics that we’ve seen in
just the last decade – that the leading law firms in the country
still ask transactional attorneys to prepare documents by finding and
comparing them one at a time?
It is the quest for something new and
different to solve this problem that is the driving force behind
Exemplify. For further thoughts on this topic, please read the
subsequent post from our founder, Robert Anderson. If you’d like
to see what Exemplify does for yourself, please get in touch with us
via the contact information elsewhere on this site. Experienced
partners at major U.S. law firms who have seen Exemplify have told us
that they think it will transform the way law is practiced in this
area.
