Design Thinking Will Change the Practice of Law

This article, which I co-authored with Cat Moon, originally appeared in the November 2017 issue of Legal Business World.

The bold prediction of the Legal Design Summit organizers: Design thinking will change the practice of law. Earlier this month upwards of 600 people from around the world gathered in Helsinki for the second annual summit. The program featured more than two dozen speakers, including Marie Bernard of Dentons and Nextlaw Labs, Justin North and Joe May of Janders Dean, and Warren Smith of the UK’s Government Digital Service.

Named a World Design Capital by the World Design Organization in 2012, Helsinki has a rich design culture. Given its history, it is no wonder that Helsinki became the locus of a collaboration between a law firm and service-design consultancy. These two companies, Dottir and Hellon, started exploring the concept of “legal design” with the goal of creating truly client-centered legal services. Ultimately, this collaboration led to the first Legal Design Summit in 2016.

Since legal design is a relatively new term (and we wonder whether it may even be a misnomer), we’re still exploring what it means and what it encompasses. The talks at this year’s summit covered topics from contract visualization to the GDPR. Even though the discussions were wide ranging, by the end of the day a few clear themes emerged.

All the speakers emphasized how important it is for lawyers to collaborate with people from other disciplines. Radical collaboration is considered one of the core features of the design-thinking approach. Sarah Van Hecke, a legal designer at the Dutch law firm Houthoff Buruma, talked about how her firm regularly engages information designer Kate Snow on their matters. Kate and Sarah illustrated how pairing up their diverse skill sets creates a synergy that leads to client solutions they would not have found otherwise. Esko Kilpi, a thought leader on post-industrial work, talked about the valuable network effects that occur when a group of people come together to work on a common problem. And Emma Jelley, general counsel at Onfido, remarked during the GDPR panel discussion that lawyers should be working with organizational psychologists since we’re attempting to change human behavior.

It is because interdisciplinary collaboration is so crucial for solving today’s complex problems that we wonder if labeling this approach ‘legal design’ is counterproductive. We worry that this label might unintentionally suggest that this approach can be adopted by a law firm or legal department without them having to consult with people outside their organization. On the other hand, because applying design to work traditionally done by lawyers is a rather new phenomenon, it may be necessary to speak of legal design (at least in the short term) so that people understand what we’re talking about.

Another theme that emerged from the summit is that legal design goes deep. Although some of this work appears to be surface level (e.g., visualizing contracts), that’s not actually the case. For one thing, how a document looks affects how it functions. Making a contract visual is a way of making it more accessible and understandable to readers. It’s not mere decoration. Designing the way a legal document looks is deeply intertwined with the content of the document, the purpose its drafters are trying to achieve, and its effectiveness.

Moreover, legal design can also address unseen systemic problems in the legal system. Indeed, the first set of talks during the summit focused on Legal Design Beyond Visualization. Margaret Hagan of Stanford’s Legal Design Lab introduced us to Richard Buchanan’s framework, which discusses four “orders” of design. Hagan explained that we should be pushing ourselves to move from first- and second-order design solutions (such as designing legal documents, communications, and products) to third- and fourth-order solutions (services, interactions and systems).

Our talk delved further down that path, exploring the reasons why we need system change. The world has become less predictable and our existing legal system is not structured to deal with rapidly changing, unpredictable life conditions. Invoking Buckminster Fuller’s observation that you cannot change things by fighting reality and instead must build a new model that makes the existing one obsolete, we suggested that, ultimately, legal design could go as far as to build a completely new model for how we handle “legal” issues.

We can already see some hints of what this new system might look like. For one thing, it will require educating lawyers in a new way of thinking. In the US, a handful of law schools have already begun teaching law students the mindsets and process of human-centered design to give them creative problem-solving skills that go far beyond “thinking like a lawyer.” Vanderbilt’s course in legal problem solving is an example of this new approach to legal education.

And the emergence of “legal wellness checkups” illustrates how this new problem-solving approach might work in practice. For example, the nonprofit Tennessee Alliance for Legal Services developed an online legal wellness checkup that helps people identify if they have a legal problem or are at risk of having a legal problem, and what resources exist to help them. The checkup is aimed directly at the nearly 50% of Americans who fail to realize that they are experiencing a legal problem.

When we look at all of the experiments and pilot projects that are happening around the globe, we notice a theme emerging: our new system will be more integrated and holistic. (And in this way, legal design may be thought of as a process for actualizing a preexisting movement, the integrative law movement.) We argue that the new system must be holistic because people’s “legal” problems don’t exist in a vacuum—they exist as part of larger contexts and typically are a subset of broader and more complex problems. And in fact, as we mentioned above, data from the US show that almost half of Americans who experience a legal problem don’t even realize that their problem is a legal one. And only one-fifth of them end up seeking the help of someone outside their immediate social network (such as a police officer or a lawyer).

We propose that instead of laboring to bring the other 80% into the existing system, we should consider taking a more human-centered approach to meet people where they are. Perhaps in certain situations, we could even empower people to resolve their own problems. This idea—of distributing decision-making authority to the people at the “front lines”—is gaining traction in organizational-design circles. Frederic Laloux talks about this phenomenon in his book Reinventing Organizations. We think this same approach could work in our legal system. Obviously that sort of system-level change is not going to happen overnight. But with 600 people worldwide already identifying as legal designers and gathering at an international summit, we think the rate of change in the legal profession will only continue to accelerate.