Written By: Marc Chia | Edited By: Jennifer Lim Wei Zhen, Andrew Wong
What is legal design?
Legal design is the application of human-centred design approach to the problems and challenges of the legal process. While it is commonly associated with using technology to alter and advance the delivery of legal services, legal design goes beyond its relationship to technology. It entails a re-thinking of existing processes to maximise and optimise outcomes.
It is not the easiest thing in the world to explain legal design. Indeed the Legal Design Alliance’s Legal Design Manifesto is a multi page document explaining the attitudes, purposes and approaches to legal design. Other prominent pieces of literature include Professor Margaret Hagan’s book “Law by Design” and articles by organisations focusing on legal design as a service such as Dot and Lexpert to name but a few.
A common theme in these definitions is the prime underlying philosophy of developing and delivering legal solutions and processes that prioritises the end-users of the services/products. In some scenarios these may be lay persons who are in need of legal services but in others, the target users are the professionals, including lawyers, judges, paralegals and general counsel, who operate within the system.
The underlying philosophy of legal design is not foreign to the legal profession. Think of the struggle against legalease or the preference in hiring associates with “business sense” in certain law firm. Lawyers already want to help people understand legal work. But where legal design innovates is in the application of design approaches to the practice of law. Just as IRAC and/or CRUPAC is a common methodology for legal analysis, design has its own set of approaches and methods which enable problem solving.
In this context it is important to clarify a key misconception when we speak about design. It is not about making something look better. Appearance is but a byproduct of design. Design’s key goal is creating things which are intuitive, enjoyable and valuable to its users and these are the values which are sorely needed as the legal profession looks into its future.
The challenge of innovation in the legal sector
Legal remains a sector that has been conservative in its approach to innovation and technology. This is perhaps of little wonder given the focus in legal practice on the use of precedents and identifying risks. The legal profession is veritably built on risk aversion rather than risk appetite. We have however seen the rise of a new paradigm in legal with innovation and reinvention becoming a rallying call for many forward thinking lawyers.
It is in this context that legal design as an approach to problem solving has started to come to the fore in catalysing change for several important reasons.
First, there have been long established paradigms of practice in legal. Paradigms which will only change when they are challenged from alternative points of view whether that of clients, a changing generation of legal professionals or from the world of alternative legal service providers. Legal design’s focus on the needs of users is not that different from the constant call for client-centricity in legal matters. However what it adds are specific approaches and methods that go beyond rhetoric in challenging established paradigms.
Second, a driving force of innovation in the wider business community has been the rise of multi-disciplinary teams that combine expertise to develop solutions. Nonetheless challenges here include communication barriers and differences in operations. To illustrate, a question may be how do we get lawyers, focused on technical legal argumentation and software developers, focused on finding the most efficient way to execute a software function on the same page to problem solve? In this context, legal design’s approach to problem solving by focusing on human needs and wants forms a relatable nexus of communication.
Third, there remains a significant hierarchical structure in legal practice today. Whether this is a historical result of development from master-pupil training structures is a question for another day. What is nonetheless highly relatable is that junior members of the profession are rarely given a way to influence the organisation on a higher level. Apart from that there is an entire section of the legal profession which is rarely heard. I am of course referring to legal secretaries and paralegals whose problems rarely get air time in public forums. As a user driven approach, legal design can also be seen as a bottom up approach which considers these personnel in formulating transformation for the future.
Given the above it would perhaps be best to clarify what specifically what we mean by design approaches.
Most legal design definitions take reference to Design Thinking. This is a five-step iterative approach to problem solving popularised by IDEO. This is not meant to be a linear approach but rather an iterative process that may require cycling between different steps of the approach.
Stage 1 – Empathise
The first stage is to gain an empathic understanding of the problem from the perspective of our target users.The most important reason for doing so is to allow us to set aside our own assumptions and biases in order to access the real needs of the users.
In the legal context, this may entail setting aside a lawyer’s appreciation of the legal technicalities of an argument and focusing on the human needs and concerns to better craft solutions for clients.
A possible example is a lawyer handling a client seeking for possession of matrimonial property in a divorce setting. A deeper understanding of the client’s concerns may reveal that the request stems from concerns over taking care of children from the marriage. The empathise stage of the legal design process would advocate implementing a specific methodology for this purpose. This may be done through crafting a set of initial meeting questions that institutionalise this process. The goal being to elicit the client’s fundamental concern rather than leaving it to the individual skill and empathy of the lawyer on the case. An understanding of this would assist the lawyer in crafting alternative solutions that may better answer the underlying concern.
Stage 2 – Define
The second stage is where information is put together in order to define the central problem as a problem statement in a human centred manner. This is important because it focuses solutioning to meet real human needs rather than broad impersonal organisation goals.
This could involve definition of specific stakeholders and their specific tasks: breaking down their individual roles and respectives workflow processes, to better identify inefficiencies, gaps and pain-points.
For instance, with regards to case management, one could break down the different tasks that needs to be done, and evaluate the roles of the personnel on the file (e.g. Senior Associate, Junior Associate, Trainee etc.) and the tasks the file demands. When one compares the existing workflows and processes (e.g. each personnel’s role in drafting and reviewing discovery requests), against the concrete deliverables (e.g. submissions and hearings), one can better define inefficiencies and re-design workflow processes.
Another simple example is transforming the question of “how do we be more client-centric?” into the question of “how do we enable our legal teams to better understand the needs of stakeholders in a commercial transaction within the first 3 meetings so that this can be communicated in our legal drafting?”
The change may appear minor but it focuses inquiry on the actors and specifies measurable outcomes by which success can be measured. In this exercise, the problem is made real and solvable.
Stage 3 – Ideate
There is some overlap between the ideation and definition stage. Formulating the right problem statement may inherently pre-suppose a solution. There are hundreds of methods for ideation but the key philosophy is that of reserving judgement and ignoring feasibility.
The focus of ideation is on discovering the solution which creates the greatest impact. Feasibility is a consideration to be made at a later stage in order to prevent the killing off of great ideas while still in a nascent stage.
Stage 4 – Prototype
Once an idea is decided on, prototypes are an important precursor to the testing phase of activities. Prototyping helps teams avoid costly mistakes such as becoming too complex early or sticking with a weak idea for too long.
Prototypes are intentionally intended to be inexpensive and easy to build to prevent a sunk cost approach to problem solving. No part of the solution should be beyond reproach. Nonetheless in comparison to the scale of the final idea, it may be worth it to build slightly higher fidelity projects. Compared to a 10 year project, spending 1 month building a higher fidelity prototype might be a worthwhile exercise.
An example would be for legal teams looking to implement new technology. It may be worth commencing the implementation with a smaller pilot group first rather than rolling out the solution over the entire firm. This would help the firm determine if there were any issues beforehand and plan subsequent implementation.
Stage 5 – Test
Once prototyping is done, conducting user testing is the natural next step. When doing so, the ideal state is to carry out testing in its natural environment with real users. The goal is to get users to use the prototype as they would in real life as far as possible.
Key means for testing include giving the user a goal to be achieved and observing them as they navigate the solution. No feedback is bad feedback and it is important that the team retains as open a mind as possible. In most scenarios, feedback will be a mixed bag and forms the basis for future development.
Beyond design thinking
While Design Thinking is no doubt a good way to approach legal design, I would like to challenge the conception that it is the end all and be all of legal design. There remain a myriad of approaches to problem solving that can offer learning points.
Approaches such as AGILE, SCRUM, Systems Design, Six Sigma, Lean Startup etc. challenge us as legal designers to reframe the problem and rethink our paradigms. Interestingly as well, specific to the design industry, some of the best design work comes not from complex approaches and methods. Rather a designer who has immersed themselves deeply in an area is able to build a sixth sense of things and of what works and what will not. It is in this later context that we could see the rise of legal designers as a role within law firms itself in building solutions for the future.
Examples of legal design
It would not be far off the mark to say that many developments in legaltech contain elements of legal design. Indeed the Lean Startup methodology shares many similar elements to design thinking in terms of its iterative approach. In the following we will however focus primarily on alternative applications of legal design focusing on redesign of legal services and operations in other forms.
Presently the most well known examples of Legal Design tend to be in the field of visual contracts. This refers to the use of graphic illustration techniques to simplify a contract. The value of a visual contract lies in its ability to quickly and easily communicate information to users who may not be legally trained.
The Financial Times reported on a project taken by the legal team at Shell in to make its contracting process easier for non-English speaking customers, they designed a visual contract, which was piloted this year. Starting with Shell’s marine lubricants business, the legal team rewrote its general terms and conditions in plain English, added clear headings and visual elements and reduced the word count by 38 per cent. It has led to a significantly faster renewal of hard-to-close accounts since the change.
Given that one of the primary advantages of having in-house legal teams is having a legal team that is attuned to and communicates legal requirements to fit business needs, it would appear that visual contracts which can easily and quickly cut through the Gordion Knot of legalese to present key information to different stakeholders may play an increasingly important role.
The role of visual contracts is not just limited to commercial realities. Indeed, the European General Data Protection Regulation (GDPR) requires the communication of how personal data is being processed and handled in clear and plain language. Clearly the effective communication of information in a manner understandable by consumers remains a pain point and an opportunity for legal redesign.
Beyond the realm of visual contracts, legal design offers other opportunities for improvement in both external facing and internal facing functions for law firms.
Fast Company reported on a project done by IDEO with Hogan Lovells to redesign how feedback could be given in a more timely and comfortable manner. The solution? A scorecard system called Pathways which significantly increased the frequency of feedback and comfort level of associates in proactively seeking feedback.
These are but some of the examples of legal design application but the true meat of application remains in how technology will change legal services. In the words of Marc Andreessen, “software is eating the world” and legal is no exception.
We have already seen the rise of Alternative Legal Service Providers(ALSPs) who use technology to change the way legal services are delivered. The most valuable legal tech company in the world, Legal Zoom (worth over US$ 2 billion), built its initial model on what was essentially an assisted form filling system. Its success is testament to the successful identification of the pain point of users in dealing with legal forms. A problem that could not be solved by traditional legal services in a cost effective manner and one that none bothered addressing on the scale of Legal Zoom using technology.
With a second wave of deeptech-based ALSPs on the rise, we are at an exciting time in the history of the profession. No one knows for sure what the legal industry could look like 20 years from now. But with an increasing need for discussions at the intersection of law, business and technology we could see legal designers play a key role in transforming the industry perhaps by in-sourcing disruptive innovation and change by law firms everywhere.
Now wouldn’t that be a sight to behold.
Featured image credit: BBVA