New Tech, Old Law: How Legal Expertise Helps Technology Transactions Succeed
And what to look for in a technology transactions attorneyBy Canaan Suitt, J.D. | Last updated on August 21, 2023 Featuring practical insights from contributing attorneys Kevin M. Levy and Michael D. Oliver
Use these links to jump to different sections:
- What Do Technology Transactions Lawyers Do?
- Why Do I Need a Technology Transactions Lawyer?
- When Should I Get a Technology Transactions Lawyer Involved?
- What Should I Look For in a Good Technology Transactions Lawyer?
- How Do I Search for a Technology Transactions Lawyer?
When you think about technology and business, your mind might go to multinational tech companies like Apple, Google, or Microsoft. These companies are undoubtedly major players in the tech industry, but the reality is that companies of all sizes and industries—from healthcare to education to real estate and beyond—now use and rely on technology in their business.
The technologies that businesses use are constantly changing. And while they often lag behind, the laws and policies regulating technology are also always developing. In this dynamic technical and legal landscape, having an experienced technology transactions attorney is essential for many businesses to remain compliant with the law and ensure successful business transactions.
But given the fact that technology and law are constantly evolving, an interesting problem presents itself to business leaders trying to find competent legal counsel: How do you find legal experts in technologies that are cutting edge?
“You need to be cautious about someone claiming to be an expert on a given technology when that technology came out last week,” says GrayRobinson Shareholder and Technology Transaction Team Leader Kevin Levy, who is based in Miami and has advised companies on business, corporate, and technology matters at all stages of growth for more than 25 years. “Nobody can be an expert in applying the law in one week.”
The solution, he says, is to find experienced attorneys who can apply existing legal frameworks to the new technology. This article gives insights on what to look for in a technology transactions lawyer.
What Do Technology Transactions Lawyers Do?
“A technology transaction is a business transaction between two or more parties that involves the development, manufacturing, sale, license, and/or use of technology in some form,” explains Levy. “The difference, compared with other types of commercial transactions, is the uniqueness of the technology involved.”
Attorneys in the tech transactions practice area do legal work for many types of clients:
- Technology companies and startups;
- Healthcare, pharmaceutical, and life science companies;
- Retailers and providers of consumer goods;
- Social media, publishers, and telecommunications companies;
- Banking and financial services.
Some of the common legal issues that tech transactions lawyers help clients with include:
- Data privacy and cybersecurity;
- Software licensing, outsourcing, and other technology license agreements;
- Intellectual property rights and open source agreements;
- E-commerce and financial technology (FinTech); and
- Due diligence and legal review of merger & acquisition deals.
The common denominator among these different legal issues and clients is that technology is part of the client’s business model, and they need expert help navigating regulations or the legalities of technology agreements.
“By being well-versed in how existing technologies work, an attorney can apply current laws and contractual terms and adjust the contract to apply to new technologies,” says Levy. “You have to ask the same questions in a technology transaction as in any other transaction. For example:
- What is being provided as a good or service?
- What warranties will be provided?
- What limitations of liability will be involved? This question is especially relevant as we move into an era of data privacy when many technologies involve the processing—meaning the collection, using, analyzing, storing, and sharing—of personal information.”
Why Do I Need a Technology Transactions Lawyer?
There are many reasons why a company might need a technology transactions attorney, either as in-house counsel or to bring in for particular business objectives. Two examples are contracts and data privacy.
Get Tech Business Contracts Right
“Positively productive technology transactions are a process, not a destination,” says Levy.
“It’s not like you can just say: ‘Here’s a contract template; fill it in.’ Rushing things by automatically filling in dates and numbers can get you into serious trouble. Technology has a lot of issues associated with it that need to be carefully thought through in each particular case—for example, how can you tell if the technology is not working properly? How can you resolve problems that arise? Is the software or service available? How is the technology shared?” continues Levy.
Ultimately, he says, each contract is unique, and preparing the appropriate documents cannot just be copy-and-paste. “Every company does things a little differently, and even contracts that seem very similar need to be vetted and modified according to how your company actually does business. Even more so when you offer software as a service (SaaS) or a cutting-edge use of technology,” says Levy.
Complying with Data Privacy Laws
“Any company that’s collecting personal information or processing, storing, or transmitting it should have legal counsel,” says Michael Oliver, a technology transaction attorney at Oliver & Grimsley in Towson, Maryland. “And if you’re a one-person operation saying, ‘I’m going to write some software’—you better get a lawyer. You’re going to be in trouble if you don’t. You run the risk of designing your software incorrectly and having a lot of things to fix down the road.”
Some of the biggest mistakes Oliver has seen clients make over the years include failing to apply data minimalization principles and practicing document retention and deletion best practices.
“They don’t anticipate that consumer X is going to make a deletion request or a data correction request—which, generally in the United States today, consumers can do—and if you’ve spread their data all over the system, you’re in trouble,” he says. “I’ve met with several clients, even larger companies, who did not design their systems correctly in anticipation of that problem.”
When Should I Get a Technology Transactions Lawyer Involved?
You know you need a lawyer to review your company’s tech transactions—but when should you actually hire a lawyer?
Levy says there are two typical responses to this critical question. On the one hand, some people say, “Oh, get a lawyer involved as early as possible!” On the other hand, some people advise, “No, wait to get a lawyer involved—wait until the review of the legal documents near the end of the process.”
Based on his experience, Levy says that the earlier you get an attorney involved to guide you on where the leverage points and important issues of a transaction are, the better your transaction will be, resulting in both time and cost savings.
“Now, that said, there will be a period of time when the business team needs to take over and run the deal for a while,” Levy says. “However, if you do not involve attorneys on the front end, you do not know the legal issues.” When that happens, confusion and disagreement often arise between the parties later on in the negotiations.
“Everybody likes to point back to the original letter of intent or original discussion and say, ‘Well, we didn’t agree to X, Y, and Z.’ The problem is that all of the issues weren’t realized from the beginning,” Levy continues.
To avoid these snags, Levy says that “the best way forward is to inform your attorneys at the beginning and let them advise you. Then, once you’ve got the legal issues dealt with, let the business team run with it. When the time comes to document the transaction, it returns to the attorney, who can review the documents one last time.”
What Should I Look For in a Good Technology Transactions Lawyer?
According to Levy, new technologies and their implications for society take time to fully understand and plan for. “That’s one of the reasons why the government is always behind the curve—regulators are taking their time to think through issues. It takes a lot of time and collaborative thought.”
The same is true for lawyers in the private sector. “You’re better off working with a lawyer who’s done many projects in technology transactions law and spent a lot of time thinking about various issues than someone who holds themselves out as the expert on the latest thing,” Levy continues.
It’s essential to look for a couple of things, he says:
- “First, look for someone who is staying current on technology in general and specific to their practice.
- The other key thing you need to realize is that just because there’s a new technology doesn’t mean you need to throw everything out the window. Just because artificial intelligence has become popular doesn’t mean you want someone who only knows AI. You still need to go back to the basic principles of applying contractual law to technology. So, it makes more sense to have someone who has a history with many technologies.”
“It is hard for someone to say, ‘I’m a generative AI expert,’ or whatever the current cutting edge technology is, when something is brand new,” Levy adds. “You don’t know what all the ramifications of new technology are, sometimes for quite a while. But if you have the experience of handling technology transactions for a long time, you can anticipate and understand where obstacles might arise in the future based on the past.”
Oliver, who’s been practicing technology transactions and data privacy law for over 25 years, also emphasizes the value of extensive experience.
“I do think that experience is very important. You can’t just come out of law school having taken all the intellectual property or data privacy courses and have the experience in the real world to deal with the industry,” he says.
“Perhaps it’s been debunked by this point, but take the idea that becoming an expert requires 10,000 hours of practice. For me, 10,000 hours was approximately five years of practice. And I was not ready to do what I do today after five years of practice. But probably at some point after five years of experience in the field, anyone who’s dedicated to it could be very good at it,” continues Oliver.
What about experience in the technology industry itself? “I myself happen to be technical—I still write software on a daily basis—but I don’t think that’s necessary, to be honest,” says Oliver. “I think, frankly, any lawyer who’s dedicated to it and has experience can do it.”
How Do I Search for a Technology Transactions Lawyer?
Levy and Oliver say that many clients come from existing clients in the tech transactions field. “We try to make our clients fans of our law firm and practice areas,” explains Levy. Word-of-mouth and networking play a prominent role in connecting clients to attorneys. So, one way to find a great attorney is to ask colleagues in the industry about their experience with attorneys or law firms.
Oliver adds that in search for a lawyer, “you need to look at what lawyers say they do—at the same time, be cautious since sometimes labels won’t accurately reflect their actual practice. So take what they say and then research their experience and qualifications, including what others say about them.”
To start your search for an experienced and qualified tech transactions attorney, search the Super Lawyers directory by your location and legal issue. To learn more about this area of law, see our overview of tech transactions and related legal content.
Additional Technology Transactions articles
- What is Technology Transactions Law?
- How Tech Transaction Lawyers Help Clients Comply with Data Privacy Laws
- Protecting Your Intellectual Property in a Technology Transaction Agreement
- How Has Work-From-Home Emboldened Hackers and Phishers?
- Defending Against Ransomware: How Lawyers Help Fight Cyber Threats
- Deepfakes in Business: How Can You Protect Your Reputation?
- Can You File an Insurance Claim for a Data Security Breach?
- How Much Cybersecurity Does My Business Need?
- Does My Business Need Cyber Insurance?
- Legal Steps to Take When Your Company is Hacked
- How Should Technology Platforms Be Categorized?
- What New Legal Issues Are Media Companies Facing?
- Is a Contract with a Computer Program Enforceable?
- Can I Sue for a Data Security Breach?
- The Fear of Data Theft: How Lawyers Navigate Cybersecurity Challenges
- Is Technology Outpacing the Law?
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