visual law

How to Incorporate Legal Design into Your Practice

This column originally appeared in the Bar Association of San Franciscos blog, Legal by the Bay, on February 1, 2016 and in their February 2016 Bulletin.

As lawyers we use words to explain complex ideas and persuade others to agree with our position. Thoughtful attorneys spend a lot of time honing their writing skills and take pleasure in carefully selecting the words they use. But too often we fail to put the same effort into the design and presentation, which—like it or not—also matter. To make our words and our work more impactful, we can draw on some foundational principles from the design disciplines.

Who is your audience?

Before you start writing, take some time to think about your reader. The design-thinking process begins with developing empathy for your reader and gaining insights that will allow you to tailor your writing to the reader’s unique needs. For example, you might discover that your judge would appreciate an electronic courtesy copy of your brief, complete with hyperlinks to case law and deposition excerpts. Or you might learn that your client doesn’t actually understand your status updates because you use too much jargon and omit important background information.

How does the text look?

Typography should not be an afterthought. Font, point size, line length and line spacing all affect the legibility and readability of a document, which in turn affect the reader’s ability to comprehend and retain the message. In other words, good typography can bolster the persuasiveness of your writing. In the words of Matthew Butterick, “Did you make your business cards and letterhead at your local copy shop? No, you didn’t, because you didn’t want them to look shoddy and cheap. If you cared enough to avoid the copy shop, then you care enough to avoid Times New Roman.” Typography for Lawyers, p. 111. (And court rules give you more latitude than you might think!)

Would a graphic be helpful?

Adding a graphic can have numerous benefits. For one thing, it is increasingly likely that your readers expect it, since we are becoming—in the words of Paul Martin Lester—a visually mediated society. Graphics can also help reinforce your message by involving more areas of the brain than text alone. (Although text is visual, reading it actually taxes the auditory cortex—thanks to our phonetic alphabet.) And because the brain processes visual images much more quickly than text, a graphic helps your reader immediately grasp your core message. For example, you could insert a visual timeline into your brief to illustrate a key fact or explain a complicated procedural history.

Visual Consumer Contracts

This week the New York Times’s DealBook featured a three-part series about arbitration clauses called “Beware the Fine Print.” Part I begins: “On Page 5 of a credit card contract used by American Express, beneath an explainer on interest rates and late fees, past the details about annual membership, is a clause that most customers probably miss. If cardholders have a problem with their account, American Express explains, the company ‘may elect to resolve any claim by individual arbitration.’ ... By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.” 

As I read the article I thought to myself, “Yes! Most contracts are written in impenetrable legalese and they’re badly formatted, which discourages people from reading them. And what’s the point? It's not like consumers have any power to negotiate the terms of the contract anyway.” 

I decided to pull up my own AmEx cardholder agreement to see just how bad it really was. But to my surprise, I was wrong on all three counts. The agreement is written in relatively plain language, the formatting isn’t horrible, and it actually gives consumers 45 days to opt out of the arbitration clause:

But the reality is that most people don’t opt out. Either because they didn’t read the agreement in the first place, or they gave up before getting to the Claims Resolution section, or they didn’t understand the significance of the arbitration clause. 

Opt-out provisions aren’t very meaningful if nobody knows that they’re there. We can do better. Indeed, the Consumer Financial Protection Bureau is already in the process of developing a “shorter, simpler credit card agreement that spells out the terms for the consumer.”

While making cardholder agreements shorter and simpler is a laudable goal, I don’t think it’s enough. We need something to grab the consumer’s attention and let her know that there is a decision to be made—that at least she has a choice about the arbitration clause. 

For example, we could develop a “decision” icon that could be included on the front page of any consumer contract that has an opt-out provision. Perhaps something along the lines of:

1446857308_Decision.jpg

This icon would signal to the consumer that there is actually some value in taking time to read the agreement because there is a decision to be made about its contents.

Helena Haapio has written extensively on the topic of contract visualization and has advocated for the development of a “standardized  ‘vocabulary’ of contracts graphics to accompany or alert the reader to typical default rules and legal regulation,”  which she argues would have both social and commercial value. 

A great starting place might be for regulatory agencies such as the CFPB to begin including such graphics in their model forms. 

Visualization of the Law

I’m preparing to give a series of talks next month about visualization of the law. Graphics have a powerful effect on our minds, as neuroscience has shown. But although our culture as a whole has embraced visualization (thanks in large part to modern technology), law remains quite verbocentric. 

Visualization can be incorporated into the law in a number of ways—from typography, to photos and other graphics, to data visualization. Many interesting thinkers and young companies are already working on these issues, but there is still a lot of room for further innovation. 

For the purposes of my talks I have decided to separate the various techniques into six groups (described below). I would love input from other law visualization specialists about other ways of conceptualizing the topic, or additional techniques that I have left off my list. 

lawvisualization
  1. Law making and regulation. This encompasses everything from IBM’s Many Bills (which visualizes proposed legislation, making it easier to identify outlier sections) to the incorporation of images in statutes and case law (e.g., SCOTUS’s inclusion of photos in Brown v. Plata).
  2. Law practice and litigation. On the meta level, this includes visualizing the practice of law itself, whether with practice management software or a simple Kanban board. The day-to-day practice of law can benefit from visualization in many different ways—for example, Matthew Butterick’s Typography for Lawyers, Jay A. Mitchell’s Sketch Pad as Legal Pad: Picturing Corporate Practice, and Picture It Settled’s software for predicting and visualizing settlements. 
  3. Law enforcement and criminal justice. The ubiquity of video evidence (police body cameras, surveillance cameras, bystanders with smartphones) has implications for criminal justice. Richard K. Sherwin has written extensively on this topic of visual jurisprudence. There are ethical issues at play because of the powerful effect images have on our brains. 
  4. Legal research and research about the legal system. Companies like Ravel Law are bringing visualization to the world of legal research, with amazing results. On the flip side, Daniel Martin Katz and Michael Bommarito at Computational Legal Studies are helping us better understand the legal system with projects such as their visualization of the complexity of the United States Code. 
  5. Contracting and licensing. Both B2B and consumer contracts can benefit from the incorporation of visuals. Helena Haapio and Stefania Passera write extensively on this topic. The incorporation of icons into Creative Commons licenses is another example of how visuals aid our understanding of the law and its implications for our day-to-day activities. 
  6. Teaching and civics. Law schools can incorporate visualization to aid students in learning the law, and also to teach them about ethical use of images in the practice of law. General civic education could also benefit from the incorporation of visuals. Moreover, visualization is an important tool in teaching citizens about their rights and how to navigate the legal system, which is crucial component of solving our access to justice crisis.