Legal Optimisation: User-centric Design
Designing systems for Legal can often leave the user out in the cold
Once you’ve written your strategy for Legal, the next step is to design your operating system.
However, there is an inherent contradiction in designing a functioning system of legal documents and processes to be used primarily by non-lawyers.
Our instinct — our training — as lawyers is to create a legally watertight system. And as lawyers, we’re trusted to have all the answers. This can lead us to shy away from user feedback and rely on the way things have always been done, sometimes to our users’ detriment.
It can also easily result in the creation of documents and processes that are simply not fit for purpose: such as over-long contracts which specify an unending litany of risks, or processes which rely on technology which has long-since been abandoned by the business.
It is, in a word, disproportionate. Very few contracts are litigated yet many are used on a day-to-day basis.
You have to ask yourself: who are you writing for, your users or a judge?
Eyes on the prize
It’s important before you do anything to remind yourself of the overarching purpose here. Yes, you have been employed to mitigate the company’s legal risk but this isn’t your primary function.
Your primary function — as with everyone else in the company — is to drive profitable growth. If the company fails to do this, the company fails.
This isn’t an abstract goal. Streamlining legal processes, making contracts easier to understand and — crucially — quicker to negotiate will facilitate growth. Imagine reducing the time taken in negotiations by 30%. It can be done, trust us.
Your job as a legal expert is to make sure that risk is mitigated to the appropriate degree, in that it doesn’t interfere with the smooth running of the company or efforts to grow in profitable markets, for instance in creating fulfilling joint venture partnerships.
The devil, though, is very much in the detail.
Document (and process!) design
Companies spend huge amounts of time and money on crafting compelling brands, but rarely extend their thinking into legal documentation.
To begin with, ask yourself these three questions about your current or intended documents:
- Are they user-centric? Who will be using these documents, and have they been designed with these specific users in mind?
- Are they on-brand? Are your documents consistent with the company’s brand image?
- Are they easy to understand? Bearing in mind the vast majority of the users are not lawyers, are they fit for purpose?
But it doesn’t all begin and end with documents. Yes, your documents are foundational, but you should apply this kind of design thinking to all your legal processes.
Let’s look at these three points in a little more detail.
User-centricity
The first step in designing user-centric documents, indeed in reaping the broader benefits of a user-centric approach, is having empathy for the end user. Identifying the user’s needs — even if they can’t articulate them — and coming up with workable solutions is all about empathy.
That means understanding who your users are and what their various roles entail, looking at how things work within your organisation.
Listening is a key part of this, but hearing is equally important, and you must make the distinction.
Many lawyers use apparent listening time to “reload”.
Hint: you can always tell when people are doing this because they start speaking just before you end your sentence. Try it, you’ll see that people like this aren’t really listening to you and certainly aren’t hearing you. If you do it yourself, it’s a good idea to stop it.
Good questioning is the foundation of good listening, so don’t just be satisfied with what people tell you proactively. Probe until you get the answers you need.
Remember that it’s not your job simply to take down what the user says and replicate it, it’s your job to translate it. Some of what they want isn’t possible, so you’ll need to explain that and find workarounds.
All of this may sound blindingly obvious, and it is, but the kind of end products we often see manifestly haven’t been constructed like this, so you’ll have to forgive us for pointing it out.
Across all of your outputs, you will also be responsible for developing a common language of communication, both to stay on brand and to ensure that both internal stakeholders and customers understand the contracts they come into contact with. That means keeping jargon to a minimum and making a determination on which terms (e.g. technical ones) need to be explained for the non-specialist stakeholder.
Aligning Legal with the company brand
This is one of the most overlooked aspects of legal design, but it really matters. Your company will have spent a significant proportion of its marketing budget on developing an attractive user-brand, and that should extend to all its user-facing outputs, including Legal.
Don’t think it’s that important, or that maybe it’s “not my job”?
Consider whether a tech company famous for its sleek, minimalist devices should have user terms and conditions running to 39 pages…ask yourself what impression that creates among users of those products?
Or perhaps ponder why a law firm famous for its attention to detail should issue a supplier contract allowing that service deadlines might be suspended for 48 hours in the event of a volcano in central London. Does this give a supplier confidence that the firm won’t miss anything?
Neither example — both true, by the way — speak not to the needs of the end user, but to the needs of a Legal department determined to exclude every single possible conceivable risk.
Equally, if your internal processes are lean, slick and rely heavily on user collaboration via the latest technology, Legal should be no exception. Legal should not be the laggard, it should not be “the complicated bit” or a black hole when it comes to responsiveness. Your own brand within the company matters hugely to acceptance and take-up of what comes out of Legal.
OK, we’ve hammered the point, but this is a very real issue and yes, it causes brand damage.
If you’re trying to be ‘different’ but end up looking and feeling the same as every other company because the foundation of your user contract is fussing and pernickety, you’re failing your mission.
And you’re even at risk of losing business. For instance, if your service Ts&Cs are 50 pages long and threaten all manner of remedies if broken, a user might wonder what you’re trying to hide. They may even decide to use a different supplier whose Ts&Cs are three pages of plain English, nicely laid out so that everything is easily understood.
Sceptical? This last example is exactly why the author of this piece switched electricity companies…
Can plain English be watertight?
Above all, your documents should be easily understood by the intended user and preferably in plain English. And all your other processes and systems should follow that lead.
At this point, your training is causing warning lights to pop up all over your dashboard. Simplifying, parsing, contracting, summarising — all of this can make us lawyers nervous.
But it isn’t impossible to write legal documents in essentially plain English. Legalese has its place, and is often important — this is a legal document after all and needs to act like one.
But people don’t care about the minutiae, they need to know in as few words as possible what their job is when they see a contract.
That’s not to say that every contract should or can be reduced to three pages. That’s as daft as seeking to incorporate every risk.
Look at your existing contracts. If they’re full of “heretofore”, “notwithstanding” and “the party of the first part” and sentences of 143 words (true story…), chances are your users are going to switch off, baffled and demoralised. If this happens, they’ll find their own workarounds, marginalising Legal and making it much more difficult to foster company-wide legal hygiene.
An example — the NDA
Let’s think about a Non-Disclosure Agreement. There’s no reason why a properly designed NDA needs to pass through Legal every time. Departments can perfectly well manage their own NDAs and doing so will give them a much greater appreciation of what the document is for.
So, they need to know what its purpose is, where to find it and who needs to sign it. Does everyone in your company know you have a template and where to find it? Do you have an e-signature facility? Do they know you have a contracts database and how to submit contracts to it?
Talk to the people who use NDAs the most, find out what their ‘pain points’ are, what tech they typically use and build a process around that, harmonising where possible but going with the grain where you can. Remember that you want them used every time, easy to understand and stored correctly.
If done right, you can use legal design to remove work from your plate completely — allowing you to get back to what’s really crucial for the business.
Where to begin…think strategic
Deciding where and how to begin is tricky. You can’t do everything at once, so put that out of your mind. That will set too many hares running and create expectations you won’t be able to fulfil.
Your overriding aim is to achieve buy-in and trust of your users. If you try the biggest fence first and fail to jump it, that will diminish you, so it may be best to begin with a quick win leading to a succession of quick wins.
You might decide to start with just one team, such as Sales. It’s usual for Sales to be sending out more contracts than other parts of the business and they may have developed quite an ad hoc system, especially if there’s been little legal input to date. Explaining to them that this kind of system causes problems and presenting them with a viable alternative which meshes with other parts of the company would count as a big win.
And how to begin…
The ‘how’ really depends on you, your company and your audience.
In all cases, you need to find a way to seek feedback. If you’re revamping your customer-facing legals, feedback might come from your Customer Experience team, who may have received questions or complaints about your terms directly from customers.
If you’re tackling your internal legal documents and processes, you’ll need to find another way to gather feedback. We would discourage relying on a questionnaire as part of your discovery process. Unless you’re an expert at them — and most people aren’t — it can be too limiting, prescriptive and discourage the kind of proactivity you’ll need from departments frustrated by previous Legal output. You may find your organisation needs a more organic, freeform process which allows user expression.
Based on the feedback you receive, you’ll be able to clearly pinpoint your user problem(s) and need. From this vantage point, you can then start developing solutions — whether by brainstorming techniques, Post-Its or interactive design meetings to elicit as many ideas as possible on top of individual interviews.
If you have a complex task, interviewing can be lengthy, so task each one of your team to buddy up with one of the responsible end users so that you can get as much information as possible before your design event. You and your team will be responsible for translating the various inputs into consistent end products, so this allows you to do a lot of the thinking before you are ready to mix it up and see what eventuates.
And note that you don’t have to get everything perfect from the outset. Doing something you think will work for the time being and developing a rapid feedback-solution process will allow you to iterate your solutions and evolve more effective responses. A pilot can be an effective way to test a larger rollout.
Build, test, iterate
Accepting imperfection is tough for lawyers because legal training emphasises the quest for the opposite. But it’s amazing how far a little vulnerability will go. Explaining to your end user that it’s tricky for you too and that some solutions may be temporary fixes requiring review will set them at ease. After all, it’s exactly what they’re doing all the time too.
As to writing, the best way to write something is just to write it. If you have an effective, empathetic information-gathering process, you’ll have all the content you need, and that empathy will carry you into a much more user-friendly set of contracts, systems and processes which will enhance both your standing and the effectiveness of Legal generally within the company.
