Design, Users and court-integrated ODR

Margaret Hagan is the doyenne of legal design. She is the director of Stanford University’s Legal Design Lab. Unsurprisingly, she is a prolific communicator. You can watch videos on her ideas. She has her own blog. Last year, she published an e-book illustrating her ideas discussed in an earlier post. And she has now published a more conventional article in an academic journal setting out her approach. This provides a nice contrast with accounts of Her Majesty’s Courts and Tribunals Service (HMCTS) to introduce online courts in England and Wales – such as the recent National Audit Office report or the evidence hearing earlier this week of the House of Commons Public Accounts Committee. The key difference is that Ms Hagan is determined to ‘lay the groundwork to reform the court system so that it is more accessible to people without lawyers’. HMCTS’s efforts in this regard get bogged down with closing courts to pay for modernisation and a breakneck project whose main aim is to save money.

There is a limitation to Ms Hagan’s approach. She is explicitly basing it on the situation in California. She is writing about a project with the state courts self help centers. That gives it a particularity but means that she does not have to deal with some of the issues that arise here. For example, she is assuming the existence of court-based personal assistance and does not have to grapple with our planned move to digital alone, albeit assisted. Nor does she have to deal with a major problem in the UK – the disconnect between advice provided largely by Citizens Advice (and other lay agencies and assistance) with litigation, made harder by (in England and Wales) the devastation of civil legal aid. Some of her recommendations are specific to California. For example, no point in arguing for better work stations of improved signage in our courts: the HMCTS would not be interested.

The central core of the argument is, however, international.  It is about the use of ‘human-centred design’. This ‘posits that the best way to evaluate existing offerings and to create new, better ones is to focus on the needs, values and aspirations of the people who are the target of the offering’. In a court – and even more a tribunal context – that entails really getting to grips with what users want. She says that this involves ‘understanding, synthesis, brainstorming and prototyping, testing and refinement’. That pretty well excludes any hint of the creation of the ‘hostile environment’ so controversially part of the Government’s immigration policy; the manifest one-sidedness of benefit administration; and the attempt to lessen litigation through disproportionately high fees as in employment cases. She quotes with approval research arguing that users want ‘courts [and tribunals that] create new models of service to fit with litigants’ preferences for self-service, education and orientation and a concierge to guide them’. And in this process, she cites the development of the A2J guided author programmes developed in the US which seek to give visualised guided pathways to the negotiation of court procedures. She also names no less than eight organisations based in US university law departments working in the field – including her own and with the addition of the Rechtwijzer’s HiiL.

To give a flavour of her approach, here is an extended quote from the findings of what you need to introduce user-based design into court processes:

‘1. Journey maps that document how people proceed through the system. A journey map documents the series of tasks that a person goes through to get from the beginning to the end of resolving a problem.

2. Empathy maps that document what people are saying, feeling, and thinking in the given situation. These maps capture the experiential factors that offer depth to the tasks in the journey maps.

3. Failpoints of the current system that set an agenda of what needs to change. These are where the litigants get frustrated, disengage, or otherwise have a negative experience.

4. User needs and problems lists that complement the failpoint list. User needs are defined more around the things, features, values, and experiences that the litigants must have in order to have success.

5. User goals that point to users’ longer term aspirations and deeper emotional and social dynamics at play in their interactions with the system. A goal is more abstract and long-term, while needs are more explicit and transactional.

6. Personas that document the primary user types. They are fictionalized versions of real test users’ behaviors, expressions, preferences, and ways of working. They can also be considered composite user archetypes. The personas should include details about these archetypes’ ‘mental models’—how they understand the system, what heuristics they use, and what metaphors and assumptions they have.’

These should lead to

1. A User Requirements list that spells out the explicit ‘must- do’s’ and ‘must not-do’s’ that define what people need for solutions. This shortlist directs the future design work, constraining the work to what the users actually will use and do.

2. A synthesized set of Design Principles for this specific challenge area that define what the core guiding values should be for this area. This takes the findings of the earlier synthesis work and distills it into a set of core principles to follow.

3. Key Intervention Points that mark out exactly where in a system’s operations or a user journey is a rich opportunity for a new design. This borrows explicitly from the journey map, the empathy map, and the failpoint list. Points of high emotion are typically these opportunities to focus interventions toward.

4. Design Briefs that crystallize the needs, goals, and other observations into single challenge questions. A brief is an encapsulation of the thing that the design team should be solving: how might we resolve this user problem, given the important constraints and dynamics we have observed? The design brief focuses the team on certain personas and needs, scoping them for a particular type of target.’

There is not, of course, time in the HMCTS hectic schedule for it to take this road properly. And it would impede the court closure programme – discussion of which, specifically in relation to Chichester took up considerable time at the Public Accounts Committee and attracted notably little user support. But, sooner or later, the value of Ms Hagan’s design approach will be heeded. A pity that is likely, in England and Wales, only after implementation when all the money is spent.

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