Some history, some terminology, and finally, some practice tips.
Q. In recent years, design thinking has become more popular in legal, partially as a buzzword but also, in some quarters, as an actual practice. Why is this happening?
More so than in years and decades past, business leaders are pushing legal departments and law firms to drastically improve or expand client service. Naturally, this requires turning the spotlight on the client to deeply understand their business problems and experience in working with legal. The confluence of the demand for more human-centered services and solutions, the need for creativity to break through boundaries, and lawyers’ tendency towards discomfort with ambiguity have pushed the profession to seek refuge in design thinking.
Developing ways to do things differently can get messy and feel uncomfortable, especially for a risk-averse population. With the structure of the methodology, design thinking provides lawyers with a handy “checklist to innovate” that can help put them at ease and guide them to an outcome.
Design thinking in legal seemed to peak right before the COVID-19 pandemic. Photos of lawyers with sticky notes up on whiteboards and windows littered social media. In other industries this is considered mere “innovation theater” — but for legal, the mindset shift from self to the client, and the interventions to prevent lawyers from “jumping to solution,” are critical evolutions.
When it comes to black letter law, lawyers know how to arrive at the best outcome. Seasoned attorneys mentally translate business problems to legal issues in real-time and often have the answers, or at least know where to look, before the client has finished speaking. The problem is that lawyers have the same tendency to jump to solution when solving outside of their practice areas on business of law and delivery questions, where they generally do not have the same expertise.
The process of design thinking interrupts the lawyer’s impulse to stay in their silo and rush to a solution. The discovery and experimentation phases drive them to speak with business leaders outside of their department or firm and to put themselves into the shoes of the client.
What’s so significant about this is that it empowers legal leaders to experience the problems of the business in a way that yields an empathetic, unexpected, and improved outcome.
What’s not so significant about design thinking in legal is that, while the mindset evolution is real and exciting, I’ve yet to see or hear of any real fruit from the labor.
Perhaps this is because efforts in legal innovation often devolve into current state enhancements. With that in mind, let’s get smarter about when to use design thinking and when we should short-circuit the effort and move straight to legal design.
Q: What is the difference between design thinking and legal design?
Design thinking guides you to think completely outside the box in which you are currently confined. In contrast, legal design is a step-change within the confines of the same solution — i.e., inside the box. If a technology interface is involved, this might be termed “user design.” (Thank you to Meghan Kelley for the outside-the-box/inside-the-box distinction.)
To illustrate the difference, consider Shell legal department’s introduction of visual commercial contracts as its poster child for revamping its legal content. See Reena SenGupta, “How ‘design-thinking’ can help lawyers do a better job,” Financial Times, Feb 10, 2021. Visual contracts draw on colorful graphics, white space, and sophisticated knowledge of where people look on a page (information design) to create contracts wherein the pertinent content jumps off the page.
According to the story, the general manager of digital and process transformation at Shell, Fraser Hill, started by thinking about the user’s experience and the purpose of the contract. “Most lawyers create contracts with a view to settling disputes but contracts should really be about facilitating trade,” commented Hill. Thus, the new visual elements used in some of Shell’s contracts are not there for design’s sake but to improve understanding between all parties, “such as showing suppliers how to ship machine engine oil onto a boat in line with Shell’s process standards.”
The result is no more DEFAULT TO ALL CAPS to feature important clauses. See Stefania Passera’s website for visual contract examples.
A laudable (and surprisingly time-consuming) initiative, visual contracts make content easier to understand so you can generate revenue faster, and as Stefania explains, benefit from “more effective processes internally and better relationships with customers and suppliers.”
But, this is still all inside-the-box, right? Literally, still within the four corners of a page. This is not design thinking. It is legal design.
To draw an even brighter line, authentic design thinking, as depicted in the graphic below, can produce such breakthrough ideas that the solution could be dispensing with the notion of contracts completely. Can you imagine lawyers tossing contracts? That is breaking with convention.
In another example from the FT article on legal design cited above, Linklaters moves from storing data in a Word table to Excel. While this improvement might be more innovative than it seems on its face—Excel does facilitate some level of automation, after all—moving from one box to another is incremental improvement. This type of effort does not require the more robust design thinking methodology.
Q: Why is it important to understand the difference between design thinking and legal design?
For realism and resourcing.
- Realism: Design thinking is appropriate when you have license to think in the “problem space” and develop something new, a “from scratch” solution. Before embarking on this methodology, consider if you have the license for this kind of blue-sky thinking internally. At the end, who has to approve of your solution, and what’s their risk tolerance? If their risk tolerance is low, legal design might be a better fit.
- Resourcing: Specialized talent is a scarce resource. If you truly aspire to engage in design thinking, the talent pool that you organize around the problem will likely include a cross-section of business leaders, lawyers, and possibly even academics to understand the problem from all angles. If legal design is more your speed, the core talent needed is likely those savvy in user, graphic, and information design, data, legal operations, or other technical expertise that can help improve existing legal products, delivery mechanisms, and services.
Note, too, that if you develop a novel solution, you’ll need the change leadership and management horsepower for adoption.
It takes courage to innovate and there’s always the tendency for leaders to fall back into their comfort zones. By knowing how far you want to push the boundaries, you’ll save time by starting off with the right people on the project. For an example of a framework that I continue to use in my work, see Post 128 (presenting and discussing Maker’s Matrix, which is a guide for innovation as a service).
