By Marco Imperiale.
Introduction
Legal design [1] is certainly a “hot topic” in the legal field. From an external perspective, it seems like the panacea of all evils. An application of legal design principles in its purest form would mean user-centric documents, reinforcement of trust and sustainability in companies through the use of contracts and policies, and a powerful means to improve access to justice.
Unfortunately, creating documents in a legal design-oriented way is harder than it seems. Firstly, it means shifting our perspective: we must involve in the process different kind of professionals (graphic designers, project managers, lawyers etc.), use a specific methodology (legal design thinking), and learn to deliver a prototype instead of the usual document (in its draft or final version). Secondly, legal design means moving from delivering services to creating products, and putting ourselves – and our firms or departments, in a risky position. Are we afraid of clients’ reaction to this approach? Of being taken less seriously? Of unwanted reactions to surveys, interviews, and feedback forms? Last but not least, legal design implicates a serious commitment, both in terms of time, effort, money. Of all the elements, this is one of the most underestimated, but in my experience, one of the most relevant ones.
From principles to action
Legal Design represents a shift from the typical lawyer’s mindset. If the lawyer goes backward, being focused on the binding precedent, the legal design practitioner goes forward, thinking about new legal paths or ways to convoy specific messages; if the lawyer is used to think in a hierarchic way (managing partners to equity, equity to salary, salary to associates, associates to trainees), the legal designer is prone to a horizontal approach, where every voice at the table matters. Even the hidden ones. Moreover, in legal design the alchemy of different personalities is a core element, not just the cherry on the cake. As we say in Design Rights [2], 1 plus 1 is three.
This Copernican revolution means also reconsidering our role of legal professionals and our day-by-day job from a theoretical - and not only practical - perspective. How about creating contracts that are developed not in a contrastive/adversarial way, but in a proactive one? How about policies which are inclusive, and take into account – with KPIs/ROIs metrics – who really read them and how carefully? How about abandoning legalese and adopting the tone of voice of the final user?
Elaborating documents that are not only simple and linear, but also thought with the perspective of the final user and following the step of a specific – even if always evolving - methodology, is a long path outside of our comfort zone. If typography, house style, and a wise use of empty spaces, are simple ways to make documents more effective, this is a totally different scenario. Putting legal design in practice means working with personas, customer journeys, surveys. Redefining the language using a different tone of voice. Clarifying concepts that we take for granted. In other words, exploring transparency and clarity in their purest form.
Another aspect which is sometimes underestimated is the technical difficulty of creating documents that are really clear. Clarifying concepts is an endless artisanal work, a Zen exercise to reach the essential while maintaining at the same time a willingness to explore new and better forms of communication. Only lawyers who started this path can understand how hard it is. Not surprisingly, a master of design like Leonardo used to say that simplicity is the ultimate sophistication.
Why investing in legal design?
Investing in legal design, both for law firms, institutions, and companies can seem like (and sometimes is) an act of faith. Is it necessary to deliver documents that are created in a user-centric way? Do legal departments really need to know final users in such an obsessive way? How can we make legal design a priority when deadlines and urgencies (such as Covid regulations, or international sanctions, just to consider some of the last examples) gravitate on our desks?
These are questions that – as legal design practitioners – always receive. The reasons to support this kind of commitment are various.
The first, and maybe the most important reason for legal professionals, is in the norms. Both in judicial and extrajudicial fields there is a significant demand for clear communication. In the b2c world, this is even more relevant. GDPR, consumer norms, and Court regulations all over the world began to promote, and sometimes require, simple, short, and easy to read documents. Antitrust, banking, and privacy authorities are starting fining companies for lack of transparency in legal documents. In our book, we dedicated an entire chapter just to this concept.
Strictly connected to the normative reasons there are neurological ones. From attention span to cognitive load, from heuristics to the different processing of image and words in our brain, it is clear that we react in a different way to boring texts and wonderful, engaging, and colorful documents. And yes, in the book we dedicated a chapter to this part as well.
The third cluster of reasons are strategy-related. Investing in legal design means killing the cash cow and offering clients something which is at the forefront but soon will be perceived as a standard. Moreover, whether we speak of legal departments or law firms, we do know how much the “me too” element has an impact among legal professionals. When someone starts, other will follows.
That said, the more I practice this discipline, the more the reasons are coming to my mind. Access to justice, sustainability, innovation, new law. Every positive aspect related to the future of norms, clauses and contracts can pass through the lens of legal design. This is why I highly suggest to lawyers and in-house counsels to start prototyping with a contract or a legal document, possibly with a graphic designer and following the legal design thinking methodology. Nothing equals to learning by doing. And all the aforementioned concepts will shine of a different light after.
Conclusions
One of the aspects I find worth to mention are the values behind the discipline. Legal design is, for its nature, inclusive, and open to diverse points of view. It is strictly related to the SDG principles of the UN Paris Agenda for a sustainable future. Moreover, the interdisciplinary approach that we try to implement in our workshops and products can be seen as an idealistic (or, even better, futuristic) representation of a better world.
If we could have at the same table project managers, lawyers, ux/ui designers, working for better norms and regulations, maybe we could work for the society we always wanted. Or at least have a relevant and significant impact.
On the other hand, even if most of legal design practitioners are betting on the success of the discipline, the difficulties for large-scale impact are as clear. Bringing legal design into action means investments (both in terms of time and money), commitment, and a willingness to change our mindset. From contrastive to proactive, from backward thinking to forward thinking, from self-centric to user-focused. It means also accepting that sometimes we will not be the smartest persons at the table, or the ones with the better ideas. This sometimes-underestimated factor becomes significant in a profession where relevant knowledge is an added value, and where the greatest professionals are the ones with the best abilities in terms of stress management, problem solving, and writing ability.
That said, if we take into account the purpose of legal profession, and our willingness to provide clients services which are really tailor made, I still have difficulties finding a better horizon. With legal design everyone wins. Citizens can understand laws and regulations, and act for change. Consumers can finally deal with terms and conditions which are never read and signed mindlessly. Companies can improve internal communications, and represent themselves as sustainable and trustworthy. I could go on.
Time will tell if legal design documents will be a “nice to have” or a necessity (as I think). For me, it is a way to challenge myself as a lawyer and work daily for a better society. An opportunity to create something special. A goal, a mission, and a purpose. Difficulties are endless, but after a bunch of years in the field I learned that most of legal professionals find pleasure in facing tough challenges.
Who wants to try this one?
Notes
[1] There are many definitions of legal design. In the book which I co-authored with Barbara de Muro, we define legal design as a discipline for the design of user-centric documents.
[2] Design Rights is the brand we created (as LCA with Mondora) to offer legal design products and workshops. In our team we can count on legal professionals, but also ux/ui designers, project managers, developers, engineers, psychologists and economists.
About the Author
Marco is the founder and managing director of Better Ipsum, a consultancy focused on legal design, legal innovation, and legal well-being. He is also a frequent keynote speaker (100+ national and international events). A true legal design and innovation pioneer,
Marco wrote (with Barbara de Muro) the first Italian book on legal design and lectured the course on legal design at the Harvard Graduate School of Design. At Harvard, where he graduated as Fulbright Scholar, he also worked as visiting researcher.
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