Legal Design: Effective Approach or Useless Hype?
“Legal Design Thinking”, e.g. thinking outside the box of law school, all becomes necessary (Legal Design: New Thinking and New Challenges). A designer’s creative process doesn’t rely on pure inspiration; on the contrary, the designer must apply their creative skills to resolving practical tasks. The same skill is required of a present-day lawyer. In fact, we face the same problems as designers do. We’re constantly trying to enhance our products, our structures and processes, and make them more useful and efficient. Still, for the most part, we tend to see things through the prism of stereotypes, and in the end the result of our work does not serve as a solution at all.
Design-thinking is based on three methods: empathy, visualization and simplification. Empathy means that it is necessary to understand your client, to relate to him or her not only in a rational but also in an emotional way. It is obvious that without understanding a client’s needs and emotions it is impossible to create a comfortable car, handy equipment or a friendly interface. But lawyers still rarely think about their client’s deeper needs, beyond the legal task they have been set. Nobody wants to play psychiatrist with a stranger so a lawyer asks a client about his or her actions (past, present, future) and analyzes them from a legal regulatory perspective.
In fact, understanding and helping a client (and not just nominally completing the task) fall within the practicing lawyer’s duties as well. For instance, using simple and understandable languate in an agreement: if the client and his or her contracting parties can understand the terms of an agreement better, then the risk of accidental violation of the agreement will be reduced and the parties will become able to evaluate and transfer such risks in advance. Nonetheless, I often see old-school lawyers who strongly disagree with these arguments. From their perspective, the agreement should only protect a client, even if its content is unclear either for a client or his or her contracting parties.
The second milestone of design-thinking is visualization, e.g. visible presentation of work results/information. Design-thinking principles demand that we do not limit ourselves to one layer of information, but instead convey it to everybody by any possible means.
It may appear that the specificity of jurisprudence eliminates any possibility of using design-thinking methods since the majority of legal texts cannot be visualized. But in fact, visualization is firstly about leaving behind patterns and stereotypes. Under these conditions even drawing up a client’s business-process scheme before preparing a draft of the agreement is already considered a step beyond a one-dimensional structure (a sequential text) to a two-dimensional structure (a map). It is an opportunity to discover links and connections between subjects and processes that were not obvious before.
Visualization does not always mean using and applying images and pictures. For example, a well-known form of visualization is information layering, or the so-called layered approach. It is often used in different types of user agreements on the Internet: the information is layered onto a general, simplified edition for users, and a full text (the complete license agreement) for lawyers. Thus, it allows information to be acquired on several levels: a look-see level for the enthusiast, and a profound level for the professional lawyer.
The last of the design-thinking milestones is simplification of an end product in order to get a clear result. Actually, making a good legal product is about enhancing its usability, increasing its functionality and improving the “user experience” of working with the product. In the end, the purpose of legal design is to define the client’s tasks and to suggest adequate ways of solving them. A productive interaction between a lawyer and a client, a so-called crystallization of a client’s tasks and highlighting the essence resolving are the ultimate goal of legal design.
Flexibility and usefulness of design-thinking principles is becoming more and more relevant for the legal profession. I am sure that many of our readers use these principles unconsciously, without any additional methodology, just because they are not revolutionary. But they help to create a more efficient, useful, interesting product, and also allow a lawyer to think non-linearly, forget about patterns, and focus attention on the dynamic of a client’s business and legislation as a whole.
Roman Yankovskiy - Lomonosov Moscow State University