Contracts are eating the world – and how good legal design can sate their appetite. Part I: Five reflections about legal design.

A two-part series dedicated to legal design and reimagining contracts.

Thinking about the most effective way to create and use legal documents should be a top priority for anyone committed to transforming legal services. I believe that adopting some foundational insights from user-centred design can help us make sure that contracts serve real purposes for the “users” of our industry (clients, lawyers and beyond).

In the first part of this series, I outline my reflections about the impact of design thinking on the delivery of legal services. In the second instalment, I will share strategies for reinventing contracts within your organisation.

First, some attribution

"Software is eating the world" is the mantra of Andreessen Horowitz, the Silicon Valley venture capital firm. It describes the huge opportunities presented as technology intersects with every facet of our lives.

Lawyers have been a bit late to the party (fashionably, we'd like to think) – but technology is undoubtedly now also making an impact on our industry. Even Andreessen Horowitz has made a bet that software will, soon enough, also "eat the law".

It may be enticing, mysterious and sexy. But I won't be dropping everything for technology anytime soon. That's because my strong belief is that the most significant transformations in the legal industry will be supported and super-charged – but not led – by technology. And there's still so much we need to do before we ask software to munch up the leftovers.

Contracts are eating the world

When I think about the mission ahead, one target sits at the top of my legal transformation to-do list: the unabating proliferation of legal documents. Maybe it's not quite the stuff of a box office horror film, but the relentless spread of useless contracts occasionally keeps me up at night.

So forget about software – contracts are eating the world. They're no longer written on paper, so it might be hard to notice. But these days, we're all swimming in digital reams of promises and almost-obligations. For consumers, familiar culprits are the Ts and Cs and website Terms of Use we accept without even pretending to digest the detail. In the business world, the omni-present NDAs are a prime example.

If you're someone that cares about building the legal industry of the future, reinventing how legal documents are created and used should be a top priority.

But what's at stake here runs well beyond the walls of our profession (walls which, too often, are built too high). Contracts are one of the most important tools for managing how individuals and businesses interact in our economy. It should be non-negotiable that legal documents are easy to use and serve a clear purpose.

Based on the current state of most contracts, that might sound idealistic and ambitious. But I genuinely believe we can make rapid progress on these objectives by drawing on some foundational principles of user-centred design.

The design thinking "challenge"

"User-centred design" and "design thinking" are fast becoming favourite buzz-phrases in legal circles. I was recently at a forum where in-house counsel were polled on areas they'd like to learn more about. User-centred design landed at the top of the list.

This is definitely a good thing. But, in my view, the aspiration may be less of a challenge than many perceive. In my experience, lawyers are capable of applying some key tenets of user-centred design to great effect – and without much investment or lead time.

Five reflections about legal design

To start the ball rolling, I want to share my top five reflections about design thinking and its impact on legal services. Not because I consider myself a thought leader or a gate-keeper of design thinking secrets – but to make the point that some of the best insights from user-centred design are based on common sense, hugely accessible and ready to be adopted by lawyers who want to make an impact in a changing industry.

In an attempt to practice what I'm preaching, I started with what designers call "discovery" – by asking a community of legal innovators what they thought was the most important lesson that lawyers should take from design thinking to improve the way contracts are created and used. The resulting thread was evidence that there's already a growing cohort using design thinking to reinvent legal services.

I'm grateful to everyone who contributed to the discovery discussion. But these reflections represent my take on the issue.

1. Serve the real needs of users.

If a lawyer is going to take one lesson from design thinking, it has to be this one.

This lesson is critical, but also incredibly simple. Designers have long followed the rule that their products must perform the job they are being designed to perform. The chair designer keeps front of mind that people need to sit on the final product. If you can't sit on it, it's not a very good chair.

There's no question in my mind that the same logic applies to legal documents: if a contract doesn't serve the needs of its user, it's not a very good contract.

The difficulty is, for legal services, it can be much harder to identify the users and their needs – and the answer might be different for each document. The user could be a customer, a salesperson, another lawyer (maybe all three). And each of them might have wildly different needs.

But, whenever you're delivering legal services, there's always users in the picture and they definitely have real needs. You can either make the effort to identify them (see point two) – or continue to be one of the many lawyers flogging metaphorical chairs that people can't sit on. But, soon enough, those people will realise and they'll be uncomfortably angry (or perhaps angrily uncomfortable) ...

2. Understand the problem before you try to solve it.

It's not enough to assume you're solving a real problem for someone – you need to spend time building empathy with users and understanding their needs.

Lawyers are accustomed to being "instruction takers". We receive a brief from our clients and jump straight to the solution. To apply design principles, lawyers should think of their role as "instruction shapers" – working with clients to help identify what the real problem is in the first place. You can only do that by spending time on discovery.

Better still, good designers are disciplined in how they actually conduct discovery and use real methods (like focus groups, user interviews and contextual enquiries) to gain insight. How many lawyers ask their clients: "Did you read my last contract? Did you understand it? Did it achieve the outcome you wanted?" Very few. But surely the answers would be invaluable intel for drafting the next contract.

3. If you want to solve a tricky problem or try something new, make sure you have a diverse group of people in the room.

Design thinking encourages diversity – of inputs and outputs.

All things bear the mark of their creators, including legal services. As long as lawyers are the dominant architects of legal documents, it's unlikely those documents will serve the needs of users who aren't lawyers. Diversity of inputs means drawing on a range of perspectives to help understand the user and their needs. And diversity of outputs means choosing collaborators with a wide spectrum of expertise and skillsets, who can help you build robust solutions.

This principle needs to be applied with a dose of pragmatism. I’m not saying that every time there's a contract to draft, you should assemble an entourage of specialists like the opening scenes of Ocean's Eleven. This would be taking design thinking too far. The majority of legal work will continue to be driven by precedents and repeating what was done last time – which can be handled comfortably by lawyers (even if they tend to be cognitively homogenous).

But if you're trying to solve a tricky problem (like drafting new clauses to deal with payment by crypto-currency) or you want to develop a new way of working (like systematising the process for creating sales contracts) – then cognitive diversity will be hugely valuable.

4. Work with a designer whenever you can, but think like a designer at all times.

This reflection is really a subset of the last one. It's about making sure you have real design capabilities as part of your diversity mix.

Designers have a huge role to play in the legal industry. I was recently discussing a contract redesign project with the CEO of a successful legal tech business based in London. According to him, there's no point pursuing this type of project "unless you engage a really good designer".

Once again, the tip needs to be realistic. Not all legal projects require – or justify – a qualified designer. And my fear is that lots of capable lawyers won't act because they're waiting for the designers to ride in and do the design thinking for them.

In my view, lawyers can make a huge impact by just following some of these key insights. Of course, when you throw designers in the mix for the right projects, the results could be game-changing.

But my hope is that lawyers start thinking more like designers in doing their everyday work, regardless of whether there's a designer in the room. After all, "solving real problems for end users" is not an insight that is unique to user-centred design. It's a human insight – and it's common sense.

5. Design is not (just) about the visuals. The first priority is always to make something useful and useable.

To finish, a personal favourite. Making a customer-facing contract look pretty will be pretty pointless if the legal content is still hard to understand for your customers.

Be prepared: in the design thinking revolution to come, you'll see contracts stuffed with colours, icons and graphics. Some of these contracts will be as useless and un-useable as their monochromatic predecessors. Lawyers who learn to think like designers will know that the real power of design-thinking extends well beyond visual design.

(Having said that, every good designer knows that beautiful visuals always help the broader cause. So, if lawyers are nailing the useful and useable parts of the equation, I'm all for adding a bit of graphic flare!)

Now, let's reinvent contracts

I expect these reflections will change over time. But, however you cut it, I'm confident user‑centred design will make a huge impact on the legal industry. I'm also confident that this impact will come through ordinary lawyers thinking more like designers in solving legal problems for their clients.

To start proving that hypothesis, I want to point these design thinking principles at one of the biggest legal problems on my radar. In the second part of this series, I'll explore how lawyers can use design thinking to help reinvent how legal documents are created and used – and, just maybe, put an end to the insatiable appetite of useless contracts.